A. Introduction

On July 17, 1998, after five intense weeks of negotiations during the Rome Diplomatic Conference, representatives of 120 states from all regions and legal traditions achieved an historic development in the struggle against impunity. They agreed on a treaty creating the International Criminal Court (ICC) in The Hague, the world’s first permanent court mandated to bring to justice the perpetrators of the worst crimes known to humankind—war crimes, crimes against humanity, and genocide—when national courts are unable to do so.

The Rome Statute of the International Criminal Court entered into force on July 1, 2002, following its unexpectedly swift ratification by the required 60 states.1 The selection of the court officials needed to implement the ICC’s mandate soon followed. In March 2003 the first 18 judges of the court’s bench were sworn in. The ICC prosecutor, Luis Moreno-Ocampo, took office in June 2003 following his election by states parties to the Rome Statute. The institution’s first chief administrator, the registrar Bruno Cathala, assumed office shortly thereafter. The ICC, once an aspiration, was finally becoming a reality.

Since then, the ICC has made significant progress. The prosecutor has opened investigations in the Democratic Republic of Congo (DRC), northern Uganda, the Darfur region of Sudan, and the Central African Republic (CAR). These investigations—all of which have been conducted in situations of instability or ongoing conflict—have led to criminal charges against at least 12 alleged perpetrators “bearing the greatest responsibility” for horrific crimes, crimes for which not long ago they would have very likely enjoyed complete impunity (12 arrest warrants are publicly known; there may be other sealed warrants in existence). At this writing, four of these alleged perpetrators are in ICC custody in The Hague, and the others are stigmatized as accused war criminals evading justice. The ICC’s establishment sends a strong signal to current and would-be perpetrators that complete impunity for the worst crimes will not be tolerated.

The ICC’s progress is not limited to prosecutions. Against many odds and in the face of innumerable difficulties, the Registry has established field offices in sometimes unstable environments in relation to all four country situations under investigation to maintain ongoing contact with victims, witnesses, and affected communities. Court officials have made efforts to convey important information about the ICC’s mandate and its work to affected communities in refugee camps, internally displaced person (IDP) camps, and remote villages. Witnesses have stepped forward to provide evidence, some of them so enabled because of the court’s capacity to protect them from the threats that they face in doing so. Victims from Darfur, Uganda, and Congo have applied and have been accepted to participate in ICC proceedings. Defense attorneys have at their disposal an independent office set up and funded by the court to provide them with essential legal support to help promote their clients’ right to a fair trial.

Not surprisingly, in grappling with the enormous challenges of setting up an unprecedented judicial institution, ICC officials have made mistakes. Indeed, Trial Chamber I’s June 2008 decision to “stay” the proceedings against Thomas Lubanga—thus suspending, in all respects, the court’s first-ever trial—because of the prosecution’s inability to disclose to the court and to the defense potentially exculpatory information collected under the Rome Statute’s confidentiality provision emphasizes this point. In this report, Human Rights Watch identifies some of these failings and makes recommendations aimed at improving the fairness and effectiveness of ICC operations. We have also stressed how important it is for the court—including the prosecutor—to more proactively engage with affected communities to make its work meaningful and relevant to them. This will require a complete and deeply rooted shift from the ICC’s prior ambivalence to doing so, which was evident in the court’s early approach to outreach and field operations, and the prosecutor’s investigations. It will mean an approach that fully embraces the importance of these communities in realizing the court’s mandate. Indeed, these are the very communities that the ICC was created to serve.

These problems notwithstanding, the biggest challenge facing the court in executing its mandate is primarily outside of its control: apprehending suspects. Without its own police force, the ICC must rely on the cooperation of the international community to enforce its orders. International justice institutions have benefitted from some meaningful cooperation from states to date, but the ICC’s mandate to investigate the worst crimes in situations of ongoing conflict tests their willingness to cooperate to a much greater degree. Traveling from capital to capital, the prosecutor has been an increasingly outspoken advocate for the cooperation that the ICC needs from states and intergovernmental organizations. Unfortunately, while there have been some positive developments, much more is needed. The international community, including states parties, has too often downplayed justice amid other important diplomatic objectives, such as peace negotiations and the deployment of peacekeeping forces. However, experience shows that failing to adequately prioritize justice contributes to instability or renewed cycles of violence. It is the responsibility of the Rome Statute’s states parties (106 at this writing) and multilateral institutions like the United Nations (UN) to respond to the ICC’s requests for cooperation. The very success of the court depends on it.

This report sets out Human Rights Watch’s assessment of certain aspects of the ICC’s operations to date. We have made a number of recommendations aimed at improving the court’s effectiveness in executing its mandate, particularly as it relates to human rights issues. The confidential nature of many of the court’s operations also influenced our analysis and evaluation. In addition to urging the international community to provide more cooperation, key recommendations include:

  • We urge the Office of the Prosecutor (OTP) to improve its capacity to conduct investigations by recruiting more investigators, especially those with considerable experience. This is particularly important to build cases against those in senior leadership positions. In addition, a recurring feature of many of our recommendations is the need for the Office of the Prosecutor to step up its engagement with affected communities to explain the non-confidential aspects of its investigations, so as to manage expectations and combat misinformation.
  • While progress has been made in the court’s outreach to affected communities to answer questions about the court and to explain its work, we believe that the ICC should embark on a more robust, tailored, and targeted outreach campaign to increase its impact. This will very likely require additional resources, which we urge states parties to provide as needed.
  • We urge the court to enhance its level of field engagement. This includes making field offices more accessible to communities most affected. It also means increasing the involvement of field-based staff in devising and developing outreach and other strategies that implicate members of affected communities, such as victims’ participation and witness protection. The offices should also have a head of office to facilitate more effective field engagement.

Our recommendations are presented throughout the text of this report and are summarized in its concluding chapter. Taken together, Human Rights Watch’s recommendations will take time to implement and will significantly increase the ICC’s operating budget. We appreciate the importance of ensuring efficiency in the court’s operations, and we recognize the court’s responsibility to properly manage its resources. At the same time, we wish to underscore that to be effective, justice for the worst crimes cannot be done “on the cheap.” We therefore urge states parties, upon careful consideration, to provide additional resources as necessary.

Despite its shortcomings, the International Criminal Court has made strong progress in the first years of its operations. Moving forward, Human Rights Watch urges ICC officials to continue to apply the lessons learned from past experience to improve the court’s fairness and effectiveness, but also to make its work relevant to the communities most affected by the crimes in its jurisdiction. The victims deserve nothing less.

B. Methodology

Human Rights Watch has been closely monitoring the work of the ICC since the beginning of its operations in 2003. Human Rights Watch researchers participated in numerous consultation meetings with ICC officials, together with other nongovernmental organizations (NGOs) under the umbrella of the Coalition for the International Criminal Court (CICC), as well as bilaterally. The International Criminal Court has been uniquely open in its interaction with civil society.

Human Rights Watch carried out the field research for this report throughout 2007. In February and March 2007, researchers traveled to Kampala and northern Uganda (Gulu, Lira, and Kitgum) and conducted a number of interviews with local journalists, representatives of nongovernmental and community-based organizations (CBOs), government officials, and field-based ICC staff. Researchers also held a number of discussions with members of affected communities in IDP camps around northern Uganda. During April-May 2007, researchers traveled to the Ituri district and North Kivu and in July 2007 to Kinshasa in the Democratic Republic of Congo and met with persons including local journalists, representatives of nongovernmental organizations, government officials, field-based ICC staff, officials in the United Nations peacekeeping mission and other international agencies, and diplomats. In Ituri, Human Rights Watch researchers also traveled to small villages and interviewed members of affected communities. In July 2007, researchers visited two refugee camps in Chad and met with affected communities from Darfur, as well as United Nations High Commissioner for Refugees (UNHCR) officials and ICC field staff. In all of our field research, when it was required to conduct interviews in local languages, this was done with the assistance of translators.

In addition, Human Rights Watch conducted telephone and in-person interviews with ICC staff in The Hague and in New York throughout 2007 and up to May 2008. Additional information for this report was gathered in New York and Brussels between September 2007 and July 2008 through phone and in-person interviews, email communications, and desk research.

Many of the individuals that we interviewed wanted to speak candidly but did not wish to be cited by name, so we have used generic terms throughout the report to respect the confidentiality of these sources.

1 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 126 (“Rome Statute”).