Second DRC Case Spotlights Importance of Cooperation by Oriane Maillet

The MONITOR Journal of the Coalition for the International Criminal Court issue no. 35 Second DRC Case Spotlights Importance of Cooperation By Oriane Maillet

n 17 October 2007, Germain Katanga, alleged leader of the Force de Résistance Patriotique en Ituri, was sur- Orendered by authorities from the Democratic Republic of Congo (DRC) and transferred to the International Criminal Court in The Hague, marking the Court’s second DRC case. Pre-Trial Chamber I issued the arrest warrant for Katanga on 2 July 2007, but it remained under seal until 18 October 2007 when the suspect was transferred to the Scheveningen detention center in The Hague. Katanga had been in detention in Kinshasa, DRC since March 2005. The arrest warrant focuses on the period between January and March 2003, in particular the attack of the village of Bogoro on 24 February 2003. It lists three crimes against humanity and six war crimes in Ituri, a territory in eastern DRC that includes Bogoro. The alleged crimes include murder, inhumane acts, inhuman or cruel treat- ment, the use of child soldiers, sexual slavery, willful killing, Germain Katanga, alleged commander of the Force de Résistance Patriotique en Ituri (FRPI), was intentional attacks against the civilian population and pillage. transferred to The Hague on 17 October 2007, marking the opening of the ICC’s second case in the DRC. ICC Registrar Bruno Cathala said the warrant was not imme- Credit: ANP/Robert Vos diately executed because of logistical matters. At a press conference following Katanga’s transfer, both the Office of the Prosecutor and the Registry praised DRC -au thorities for cooperating with the Court. They “have cooper- In response to criticism from non-governmental orga- ated with the Court in the spirit of the Statute by executing nizations that Katanga was a “small fish,” the Office of the warrant of arrest and surrendering him,” Cathala said. The French and Dutch authorities also helped facilitate the transfer. the Prosecutor said that it pursues cases solely based “It is very significant that cooperation with the ICC is remain- on available evidence. ing a priority,” ICC Deputy Prosecutor Fatou Bensouda told the press after the surrender. To prosecute those responsible for the crimes under the ICC jurisdiction, she said, “we rely In response to criticism from non-governmental organizations on the continuing cooperation of states, to help implement the that Katanga was a “small fish,” the Office of the Prosecutor Court’s arrest warrants, whether they are in the DRC, Uganda, said that it pursues cases solely based on available evidence. “We Darfur or anywhere else.” follow the evidence,” said Bensouda. “Our mandate is to go for those who bear the greatest responsibility and in this particu- This second surrender can only be seen as one step in our dif- lar instance, we see Katanga as the one who bears the greatest ferent investigations and prosecutions,” she continued. ”Other responsibility for the crimes we have charged him with.” She steps must follow, and state’s support, as foreseen in the Court’s also emphasized that this arrest would not be the last in DRC. Statute, remains crucial in this respect. There is no excuse not “While continuing our work in our two first investigations, we to execute the Court’s warrants.” are selecting our third case in the DRC,” she said. “This second arrest warrant accords with concerns of civil so- “The DRC is still engulfed in violence. It must stop,” said ICC ciety to see those responsible for international crimes in DRC, Prosecutor Luis Moreno-Ocampo following the transfer. within the various armed groups, held to account for the grave “Perpetrators must know they will be prosecuted. The ICC is crimes committed in Ituri,” the International Federation of Hu- at work in the DRC.” Reacting to the arrest, the South Kivu man Rights said in a statement. But some insisted that the inves- focal point of the DRC National Coalition for the ICC reit- tigation should expand to include senior officials in the region. erated the necessity for the DRC parliament to adopt Rome “The prosecutor should also pursue the political masters in Kin- Statute implementing legislation because it is essential to shasa, Kampala and Kigali who armed and supported the militia the fight against impunity. “It is only by this means that the groups operating in Ituri,” Human Rights Watch insisted. concerns of the Congolese peasant, a regular victim of seri- continued on p. 12 2 Editorial section Women’s Initiatives for Gender Justice • World Federalist Movement Movement Federalist World • Justice Gender for Initiatives • Women’s Trust Redress The • Action Global for Parliamentarians • Justice Without Peace No FirstHuman Rights Network •HumanRights -Uganda•HumanRights Watch • o Oswaldo Zavala-Giler o Tricia Wong Astrid de Vries Francesca Varda Peony Trinh s S Brigitte S Casey S Leila Rachidi Wasana Punyasena o Isabelle Olma Richard Nsanzabaganwa Kattia Ninahuanca Cecilia NilssonKleffner Kirsten Meersschaert Maaike Matelski O o Spencer Lanning Brigitte Hamadey Linda Gueye Anaga Dalal Zoya Craig S N Tanya Karanasios William R.Pace Secretariats inNew York and The Hague Francesca Varda Peony Trinh S e Mariana Rodríguez Pareja O Linda Gueye Anaga Dalal Monitor Team its membersorourfunders. Views expressed here are those of the author and not necessarily those of the CICC Secretariat, Issue 35:November 2007-April 2008 Journal oftheCoalition for theInternational Criminal Court T Comisión AndinaJuristas• Asociación pro Derechos Humanos•Civil Resource Development and Documentation Centre • InternationalAmnesty •AsianForum andDevelopment forHumanRights • CICC Informal Steering Committee e spanishInformation Coordinator andLatin America Analyst e Mariana Rodríguez Pareja Paulina Vega-Gonzalez Maria Cavarretta Luisa Mascia o Rebecca Lozada Marcelina Valderrama E Jarhum Rasha Fátima daCamara ChineduOlugbuo Benson Francis Dako Amal Basha Regional Coordination Monitor velyn S Balais taci Alziebler asha Tenenbaum asha Tenenbaum riane Maillet riane Maillet o oha Aboueldahab he chepp uhr errano Fédération Internationale desLiguesDroits del’Homme Legal O Finance Assistant Website andPublications Coordinator Information S Director ofRegionalPrograms Legal O Legal O Website andDatabase Developer Legal Advisor/Head ofHagueO Development andProgram O Program andITAssistant, The Hague Communications O IT Consultant Program Assistant French Information S Head ofInformation andCommunications Program Director Convenor Content Coordinator (Spanish) Designer Content Coordinator (E Content Coordinator (Spanish) Content Coordinator (E Content Coordinator (French) Human Resources Assistant Financial O Latin America/Caribbean RegionalCoordinator Asia Program Associate Asia/Pacific Regional Coordinator Middle E Lusophone Campaign Adviser Anglophone Africa RegionalCoordinator Francophone Africa RegionalCoordinator Middle E ditor uropean Campaign O urope RegionalCoordinator enior Development O utreach LiaisonforLatin America/Caribbean andAsia/Pacific utreach LiasonforAfrica utreach LiaisonfortheMiddleE ffice and Finance Coordinator, TheHague ffice Coordinator ffice Assistant, ThePhilippines fficer, TheHague fficer fficer, TheHague ast/N ast/N fficer ervices Coordinatorervices orth Africa orth Technical S Africa Coordinatororth fficer, TheHague ervices Coordinatorervices fficer fficer nglish) nglish andFrench) fficer, TheHague ffice ast/N upport Assistant upport orth Africa andE orth • urope

ainl utc fr otn t or nie aedr t http://www.iccnow. at calendar online our org/?mod=currentevents. to posting for justice national Sincerely, on. work to our lives contribution and spirit courageous their have lives ended, their impunity.Although endto struggle the in tles bat daily We courageous to payand their tribute honormemory their names. their not to mention we have chosen colleagues, and families nationalcoalition who were recently murdered. For of their the safety heart that the Coalition heavy mourns verythe passing a of with members from is our It Iraqi world. the around law of rule the and justice international promoting of importance and dangers re the of painful minders encounter sometimes we work, our of course the During settings. informal and formal both in change positive for advocating be will CICC way, the before cooperation we ofAtstep see progress. the every international greater and negotiations of years take will It work. this or of complexity difficulty the underestimate not do We gap. close enforcement to the harder work must community international the parties with state along ICC horizon, the on investigations more and standing out warrants arrest several investigation, under situations four With Court. the with cooperation multilateral and state of importance ing the Sixth Assembly of States Parties, we attention call to the increasof edition latest the to Welcome Readers, Dear Note from theConvenor learn more. learn visit Portuguese; or Arabic E-mail Subscribe E-mail Share idea. ticle E-mail Write Spanish. and French English, in wide Monitor The justice. international for support and of awareness widespread with along Statute, Rome the treaty, founding its of implementation and fication rati and for push universal the Court to help and establish the media system Nations United the organizations, regional and international governments, like-minded members, its with closely worked has CICC The membership. ever-expanding an and date to organizations member 2,000 than more with campaign and network society civil dynamic a be to proven has and 2007 in year twelfth its enters Coalition The ICC. independent and for effective fair, advocates a (CICC) Court Criminal International the for Coalition The About Us governments Ireland, ofCanada, Denmark, Liechtenstein, Luxembourg, N Foundation the from funding additional important receives CICC The and Finland Belgium, of governments the and Foundation, MacArthur T.Catherine and D. the by provided is CICC the for funding major Current [email protected] [email protected] [email protected] is the Coalition’s flagship publication. It is distributed world distributed is It publication. flagship Coalition’s the is to join our listservs in English, French, Spanish, Spanish, French, English, in listservs our join to with full details about listings relating to inter to relating listings about details full with http://www.iccnow.org/?mod=emaillists Convenor of the Coalition for the ICC the for Coalition Convenor of the Pace R. William to submit a letter to the editor or an ar an or editor the to letter a submit to The Monitor The E uropean Commission, the Ford Foundation, the John the Foundation, Ford the Commission, uropean O pen . In this issue and at and issue this In . S orway, S ociety Institute (Zug) and from the from and (Zug) Institute ociety weden andS witzerland. N etherlands. to to ------Letters in this issue Editorial s e ction In Issue 34 of The Monitor, Chile Eboe-Osuji argues that the Interna- tional Criminal Court’s current focus on crimes in Africa informs the concern that prosecutions for the crime of aggression may target Afri- cans at the exclusion of all others (see “The Role of the Security Council Cover in Prosecuting the Crime of Aggression: An African Perspective.”) This Court’s second DRC case underscores importance of reasoning stems from the perspective of the accused, and invites a paral- state cooperation. lel consideration from the perspective of the victim. In the current cases before the Court, Africans will not only be on the dock as Eboe-Osuji states, they will be on the witness stand, they will be at the victim’s table, Assembly of they will give a voice to their suffering. The Court tries to end the -in State Parties difference of the past, the discrimination of silence about the cruelties Key issues, interviews, 3 inflicted against Africans. I am a native of North Darfur who has been 3 judicial candidate profiles and advocating for the rights of my fellow victims since I left the country in 2005. Although the Court must speed up the pace of justice in Darfur, more. Beatrice Le Fraper is there can be no sustainable peace in Darfur without justice. For Eboe- pictured at left. Osuji to accuse the Court of singling out Africans, he risks silencing the voices of victims. Cases & Situations Niemat Ahmadi Founding member, Darfuri Leaders Network Feature writing on the Newark, New Jersey 9 Court’s investigations in Darfur, Democratic The recent expansion of the Coalition’s Steering Committee is a welcome Republic of Congo, Central move and one that indicates how serious the CICC is about more fully in- African Republic, and volving southern NGOs in its work to end impunity. To have a truly uni- Northern Uganda from versal ICC, the NGO community that works on issues of international authors Deirdre Clancy; Roger Muchuba; Marceau justice should reflect the diversity of states parties to the Court itself. Sivieude; Brigid Inder; and Elise Keppler. Francisco Soberón General Director, Asociación Pro Derechos Humanos (APRODEH) Lima, Perú UN-ICC A look at how “Lady ICC: A Play About the Court Takes Ivory Coast by Storm” (The momentum Monitor no. 34) was a good snapshot of this innovative project. I had 19 for international justice heard a bit about the project, but did not know that much about it. It is building at the United would be nice to learn about similar projects that could help promote the ICC here in Indonesia, Asia and around the world. Nations. MUGIYANTO Chairperson, Indonesian Association of Families of the Disappeared Regional (IKOHI) and Asian Federation Against Disappearances (AFAD) The latest Jakarta, Indonesia 20 developments from ratification to Your article on the Lubanga case from the previous issue (“ICC Confirms reconciliation in Africa, Asia, Charges Against Thomas Lubanga,” The Monitor no. 34), was by far the Europe, Latin America/ the strongest. It sends a positive message that the ICC is not just a barking dog: it is now a fully functional institution that is ready and able to effec- Caribbean, and the Middle tively prosecute crimes within its jurisdiction. East/North Africa. Nnenna Udeka Volunteer, CICC Anglophone Africa Office Abuja, Nigeria US-ICC Citizens for Global Solutions’ Tom 24Moran and Raj Purohit explore divergent U.S. policy and practice toward the Court in the case of Darfur.

The Monitor No. 35 / Nov. 2007 - April 2008 Key Issues at the Sixth Assembly of States Parties p icc/as epresentatives from 105 states of candidates. The ASP will also give quested resources. The Board of Di- parties that have ratified or recommendations regarding the candi- rectors of the TFV will report on the Racceded to the Rome Statute dates for the ICC Registrar position. activities of the Fund in 2007. Two of the International Criminal Court amendments to the TFV Regulations With a now fully operational Court (ICC) will gather in New York for the managing six outstanding arrest war- will also be discussed. 4 sixth session of the Assembly of State rants, the issue of cooperation is of Parties (ASP) from 30 November to The Registry is expected to present a paramount importance. The ASP 14 December 2007. Other states are progress report on its victims’ strategy will issue recommendations on coop- also invited to attend. at the ASP. Although not yet finalized, eration in light of a comprehensive re- this document will be of great interest. As in the past, this year’s ASP is ex- port submitted by the ASP Bureau’s It follows lasts year’s ASP resolution pected to be as much a pivotal event New York and Hague working groups on the strategic plan requesting the for the Court as for the more than on cooperation. Court to develop its position on the 200 NGOs attending as observers. On 25 July 2007, the Court issued its role of victims. The Coalition for the International proposed program for 2008. Criminal Court (CICC) again expects budget Also, discussion over recruitment may to contribute to the annual states par- The Committee on Budget and Financ- take place as the Bureau will present a ties meeting this year through briefings es (CBF) discussed and commented on controversial, detailed report on equi- the proposal in mid-September 2007, table geographical representation and and states parties will discuss these rec- gender balance. ommendations in early December. With a now fully operational Court The issue of the first Review Confer- facing six outstanding arrest war- The CBF decided not to approve - ad ence of the Rome Statute, to be held in ditional resources for legal aid for the first half of 2010, will be at the heart defense and victims’ representation. rants, the issue of cooperation is of the discussions, including debates Also, a temporary counsel position over the focus and the scope of this con- of paramount importance. in the Office of Public Counsel for ference and its rules of procedure as well the Defence (OPCD) was denied. as practical and organizational aspects Much debate can be expected on such as its venue and budget. These and side meetings with both diplomats these issues since legal representa- substantive and procedural issues must and Court officials as well as through tion is central to the Court’s work. the submission of papers from 12 is- be resolved for the Review Conference sue-based teams such as Cooperation In its budget proposal, the Court re- to truly signal the ICC’s evolution as and the Review Conference. quested additional resources for 2008 a permanent international institution outreach activities, which was ap- that can withstand scrutiny. This year, two crucial sessions of elec- proved by the CBF. These resources tions will also take place during the will prove crucial for outreach to af- On the crime of aggression (CoA), the ASP. In one, states parties will have fected communities in new investiga- Princeton report should be adopted to choose from among five candidates tions such as in the Central African and discussions will continue regarding from France, Japan, Panama, Trinidad Republic, and in response to advances the definition, elements and jurisdic- and Tobago and Uganda to replace in investigations and prosecutions in tional conditions of the CoA. three judges who have resigned prior the other three situations. The CBF Finally, as an agreement has been to the end of their terms. In the other, also encouraged the Court to improve reached on the future permanent six members of the Committee on Bud- the evaluation of its outreach effort. At premises of the Court, the ASP will get and Finances will be elected. Nine the ASP, the Court will report on the now have to decide on an architectural candidates were nominated from Bu- extent and impact of the Court’s out- design and on the governance structure rundi, Estonia, France, Germany, Italy, reach activities in 2007. Mexico, Uganda, the United Kingdom for this project. The aim is to have se- and Venezuela. In advance of both elec- Fortunately, the CBF supported the lected both the architects and the de- tions, the CICC has been campaigning staff and travel resources requested by sign by the end of 2008. The ASP will to promote fair and transparent elec- the Trust Fund for Victims (TFV) most likely postpone the decision on tions, notably by raising awareness for 2008, which are crucial to the cur- the financing of the project to the next about and evaluating the qualifications rent start-up phase of the Fund. It is annual meeting of states parties, the hoped that states will grant the re- seventh ASP. 

The Monitor No. 35 / Nov. 2007 - April 2008 Interview with JCCD Head, Beatrice Le Fraper Du Hellen

s part of the French delegation nego- the law as established in Rome has to be dering indicted individuals to The Hague

tiating the Rome Statute, Beatrice implemented now. In all situations, the de- be a top priority on the agenda of interna- / icc ALe Fraper Du Hellen witnessed the cisions of the Court must be implemented. tional meetings and discussions. The inter- initial development of the Court. Her aware- Prosecutor Moreno-Ocampo has ad- national community must also make sure AS ness of the fight against impunity grew as dressed those issues very clearly in the As- that indicted criminals are not supported P director of France’s Department of Human sembly of States Parties and in other fora. financially or otherwise. They must be iso- Rights and Humanitarian Affairs. Today, He reported to the UN Security Council lated, marginalized, arrested and surren- she heads the ICC’s Jurisdiction Complemen- on Darfur. He spoke about the arrests in dered. We lead very focused investigations tarity and Cooperation Division (JCCD) of Uganda in June in Nuremberg; he asked and prosecutions. We center our efforts on the Office of the Prosecutor (OTP). the Secretary General to address the issue those who bear the greatest responsibility of the arrest warrant against Harun. We for the most serious crimes. We deal with CICC: What is the JCCD’s mandate? individually approach every state and re- major perpetrators, often those who gave 5 Beatrice Le Fraper du Hellen (BLF): The gional organization. We contact them in the orders and organized the crimes. They JCCD analyzes open source informa- advance of any meeting or conference to are not peace builders—they are the worst tion and communications regarding al- remind them that we really count on their kind of criminals. leged crimes within the jurisdiction of political support and stress the importance the Court, committed after July 2002, as of their mentioning the ICC. provided in article 15 of the Rome Statute. In the case of Darfur, after the prosecutor In all cases, the international community We receive 800 to 1,000 communications made his report to the Security Council, a year. Assessments of jurisdiction, admis- must be consistent in insisting that arrest- which referred the situation in Darfur to sibility and gravity are systematically con- the Court, we were obviously surprised ing and surrendering indicted individuals to ducted. We also have to assess whether the that the Council visited Khartoum with- opening of an investigation would be in the The Hague be a top priority on the agenda out formally raising the arrest warrants. interests of justice. The entire international community has of international meetings and discussions. Our other mission is to support the inves- a responsibility to ensure that the govern- tigators and attorneys in their activities. ment of Sudan actually implements its ob- Our investigators heavily rely on interna- ligation to arrest Harun. Obviously, when CICC: How have you partnered with tional cooperation to perform their du- you take note of the latest moves by the the United Nations? ties. Before proceeding with interviewing government of Sudan (Harun is still min- BLF: The UN is a key partner. It is - dif a witness, for instance, we have to make ister of humanitarian affairs) it is clear that ficult sometimes to explain in a multilat- sure that the relevant state is informed and the silence of the international community eral context that the Rome Statute must consulted according to the requirements sends the wrong message that this issue is be applied consistently in any situation. laid down in the Rome Statute. Recently, not very high on its agenda. We cannot implement it for one specific we have started adopting a more proac- CICC: What is the key challenge at the situation and not others. There can be no tive approach by informing the states in investigation phase? humanitarian solution, no political solu- general about the cooperation that may tion, no security solution, no development be required. We have also diversified our BLF: The protection of witnesses is a very solution in any situations where the ICC is cooperation partners. The Court issued a serious issue. Until the indicted individu- involved without a justice component. report on cooperation in the spring, and als are surrendered to The Hague, we have we have highlighted specific activities of to protect our witnesses. During his visits CICC: Why negotiate a relationship importance to us; then the OTP follows to capitals, the prosecutor appeals to coun- agreement with the African Union? up with individual states and regional or- tries to sign relocation agreements with the BLF: All international and regional organizations. One example is the extraction Registry or to provide financial assistance ganizations are relevant to our work. The of threatened witnesses: we ask states to to third countries, in particular to African AU is an obvious partner for us and the provide us with a “hotline,” an emergency countries, for such programs. Peace and Security Council as well as the procedure through which they can provide CICC: Could you sum up the problems Commission have expressed support for an emergency visa to extract threatened you face regarding arrest and surrender? the Court. It was extremely important witnesses from a country. that the Permanent Representatives Com- BLF: We are dealing with criminals of- CICC: How are you pressing for greater mittee acceded to the Court’s request for a ten protected by armed groups or gov- cooperation with the Court? briefing session two days after we filed our ernments. In Uganda we are dealing with application on Darfur. This was an impor- BLF: States in Rome committed to a the leaders of an armed group, the LRA. tant opportunity for the Court to engage new approach to conflict resolution; they In Darfur we are dealing with a minister the AU on matters of importance to its decided to use the law to prevent atroci- who remains in the government—both current work. It was also a strong message ties. It was a well thought decision; other situations require an adapted yet compre- of support. The agreement has not yet been solutions to reestablish peace after the hensive set of strategies. In all cases, the signed. I think the delay is due to the fact commission of massive crimes (granting international community must be consis- that not all AU members are states parties impunity to criminals) do not work. But tent in insisting that arresting and surren- to the Rome Statute. 

The Monitor No. 35 / Nov. 2007 - April 2008 In Focus: 2007 Bruno Cotte France Judicial Candidates Judge Cotte is senior judge in France who has served as president of the Criminal Chamber of the Cour de Cassation (Su- p icc/as s in past elections, the Coalition asked preme Court of Appeal) for seven years. nominated ICC judicial candidates to com- In his previous position as director for Aplete a questionnaire regarding their quali- criminal affairs and pardons in the Min- fications for the position. In addition to information istry of Justice, Judge Cotte dealt with international legal coop- that is already publicly available, these biographies eration in criminal matters and issues related to the definition 6 reflect new information provided to the CICC. of crimes against humanity and associated litigation. As a prosecutor, he led investigations, carried out prosecutions and imple- Please note that the Coalition will not take a posi- mented criminal policies set out by the Minister of Justice. tion on any individual candidates. Our goal is to Judge Cotte also worked to improve the way victims are treated, promote the nomination and election of the most particularly victims of sexual offenses. He assisted in defining the highly qualified candidates through a fair and crimes related to rape and sexual violence, and in finalizing the transparent process. amendment of the penal procedure code provisions concerning the extension of the statute of limitations for these crimes. —Vasu Reddy

GRACIELA DIXON DANIEL DAVID Panama NTANDA NSEREKO Judge Graciela Dixon has been chief Uganda justice of the Supreme Court of Panama since 2006. She currently serves as presi- Professor Nsereko is an advocate in dent of the International Association of the High Court of Uganda and profes- Women Judges and president of the Lat- sor of law at the University of Botswana in American Federation of Judges. in Gaborone. He is on the International Criminal Court’s list of counsel who are From 1994 to 1997 she was legal counsel for the Office of the Min- eligible to represent accused persons and victims. ister of Labor and Social Welfare of Panama, as well as technical advisor and legal advisor of the Women’s Committee of the Leg- Professor Nsereko has provided expert legal opinions in the field islative Assembly of Panama. She has also been an international of international criminal law and human rights to the Interna- consultant on human rights for Human Rights Coordination for tional Criminal Tribunal for Rwanda (ICTR), the Office of the Central America (CODEHUCA) and a national consultant to Chief Prosecutor of the International Criminal Court and the the United Nations Children’s Fund (UNICEF) in the Technical African Commission for Human and Peoples’ Rights. Commission for the Implementation of the Family Code in the Additionally, Professor Nsereko participated in the negotiation Republic of Panama. Additionally, both as a private lawyer and as process of the ICC Statute from 1995 to 2002. chief justice, she has dealt with numerous cases involving domestic violence against women and children.

Gender Representation at the ICC Overall ICC posts include professional and elected officials, but exclude language staff. The gender breakdown for judicial posts accounts for all 18 judges (10 men and 8 women) Women Women who were in place through the beginning of 2007. Since the 46% 44% end of 2006, 3 judges (2 men and 1 woman) have resigned. Men 54% Men 56% During the Sixth ASP, the Women’s Initiatives for Gender Justice will launch its third Gender Report Card, which will include these and other statistics. You can view the report at www.iccwomen.org. Source: Women’s Initiatives for Gender Justice Overall ICC Posts Judicial Posts

The Monitor No. 35 / Nov. 2007 - April 2008 JEAN PERMANAND A Conversation with Trinidad and Tobago Ambassador Kirsten Biering, icc/ Judge Permanand served in the courts the Hague Working Group on Cooperation

system of Trinidad and Tobago for more AS P than four decades, during which she held n late 2006, the Bureau of the Assembly of State Parties ap- the positions of advocate, puisne judge, pointed Ambassador Kirsten Biering of Denmark as facilita- and appellate court judge, among others. Itor of The Hague Working Group on cooperation. The group In 2004, she was appointed chairman of works closely with its New York counterpart, which focuses on the Law Reform Commission of Trini- UN-related avenues for cooperation. Biering was eager to see the dad and Tobago. She has been a member of the Judicial and Legal working groups schedule timely, thematic meetings on issues such Service Commission, the Integrity Commission, and a national as witness protection or diplomatic and public support. For Biering, 7 committee established to develop, monitor and promote ways to defining the substance of cooperation in a way that is both construc- counter money-laundering and terrorist financing. tive and productive has presented the single greatest challenge: “We Within the field of women’s and children’s rights, she has presided have adopted a ‘dynamic approach,’ focusing on the delivery system over many cases involving domestic violence, abuse of minors, sex- rather than on a snapshot of cooperation itself.” The underlying ual abuse and rape, as well as matrimonial proceedings in which logic of this approach is that if the Court and states parties have she had to apply a gender perspective to her decisions. appropriate structures and mechanisms in place to facilitate vari- For her work, she was awarded the Chaconia Gold Medal, a na- ous types of cooperation, tional award for services to the country, in 2003. the Court is more likely to receive the support it needs. “We have adopted a ‘dy- Biering stresses that the ap- namic approach,’ focusing FUMIKO SAIGA proach to issues of coopera- on the ‘delivery system’ tion must remain “flexible Japan and needs-based.” To this rather than on a snapshot Ambassador Saiga is currently the ambas- end, the working groups of cooperation itself.” sador of Japan in charge of human rights. produced a report identi- fying a number of ways in Her extensive work related to gender is- which states can support the Court, both bilaterally and in regional sues in the field of human rights is exem- plified by her work relating to the Con- and international fora. The report also recommends establishing vention on the Elimination of All Forms a follow-up mechanism on cooperation at the ASP. This mecha- of Discrimination Against Women (CEDAW): she took an ac- nism, she says, could “identify concrete ways for states to further tive part in the ratification process and became a member of the cooperate with the Court.” While Biering says significant progress CEDAW Committee in 2001. As deputy director of the social has been made in the working groups, much remains to be done. cooperation division of the Japanese UN Affairs Bureau, her re- She is hopeful that the recommendations from the groups’ report sponsibilities included the oversight of women’s affairs, including to states parties will be adopted. On this matter, she says, “the ac- the Commission on the Status of Women, the UN Development tive participation of the Court is also essential.” Biering likens the Fund for Women (UNIFEM) and the implementation in Japan Rome Statute to two pillars—the Court and states parties: “As far of CEDAW. From 1998 to 2000 she was an adviser to the gover- as cooperation is concerned, it is the responsibility of states parties nor of Saitama Prefecture on gender issues. as the second pillar, to ensure that the Court receives adequate and Ambassador Saiga has also served as the Japanese ambassador to timely support and assistance in implementing its mandate.”  Norway and Ireland.

Geographic Representation at the ICC Regional breakdown of overall ICC posts excluding elected officials (%) Regional breakdown of state contribution to ICC budget (%) 60 58.3 80000 60 87.5 70000 64.55 50 60000 40 50000 30 40000 30000 27.33 20 17.49 12.11 20000 10 5.83 6.28 10000 5.83 0.62 1.67 0 0 0 Africa Asia East. Europe LAC West. Europe 0 Africa Asia East. Europe LAC West. Europe *Source: CICC using the assessed contributions and adopted budget for 2007 *Source: ICC Registar, 2007

The Monitor No. 35 / Nov. 2007 - April 2008 New Head of Trust Fund for Victims Has Sights Set on the Future By Anaga Dalal

but where no perpetrators have been ceive. Victim and community partici- tried. Although the Fund is supported pation are important to give victims a administratively by the Registry and sense of ownership and ensure a last- complements the Court’s reparations ing impact on their lives.” function, it is wholly independent and p icc/as In more ways than one, the Trust Fund is supervised by a high-profile board of directors that determines its long-term is a unique and innovative initiative. strategy. Current board members in- “The Fund represents the first time clude France’s Simone Veil, Mongolia’s that an assistance instrument has Bulgaa Alterangerel, Poland’s Tadeusz been paired with a justice compo- 8 Mazowiecki, Trinidad and Tobago’s Ar- nent,” says Laperrière. “It is also an in- thur N.R. Robinson and South Africa’s novator because we mobilize others Desmond Tutu. to address the needs of victims, in- New TFV Executive Director André Laperrière on a visit to Apungi stead of doing everything ourselves. Village in Northern Uganda. Credit: TFV The board follows the regulations ad- And finally, the Fund’s involvement of opted for the Trust Fund in Decem- victims in both the design and execu- n less than one year, André Laper- ber 2005. In addition, the board has tion of our projects sets it apart.” rière, the newly appointed execu- endorsed the Fund’s Programmatic But with these opportunities come size- tive director of the Trust Fund for Framework, which outlines criteria for I accepting projects. Projects must ad- able challenges. Laperrière says obstacles Victims (TFV), has gotten three proj- include bureaucracy at the local, national ects up and running: a rehabilitation dress the prejudice suffered by victims and international levels, insufficient staff program in Bukavu, South Kivu, DRC and aim to restore their physical, psy- and lack of funds. for victims of rape; an interactive radio chological, economic and social condi- program in Bunia, DRC to help long-si- tions to what they were prior to the oc- Laperrière notes the importance of col- lenced victims speak out and overcome currence of crimes. laborating with civil society organizations stigma and marginalization; and a re- Projects must meet the following spe- that have already forged trusting and re- constructive surgery program in North- cific criteria: they should target the spectful relationships with affected com- ern Uganda for those disfigured in the most vulnerable and marginalized vic- munities on the ground. He says groups conflict with the Lord’s Resistance tims; include oversight, monitoring and active in countries with grave rights viola- Army. By the start of the Assembly of follow-up mechanisms; not discriminate tions are essential to extending the Fund’s States Parties (ASP) meeting in No- between victims or groups of victims; outreach efforts to forgotten victims, and vember 2007, Laperrière hopes to have include an outreach/communication to imparting best practices and expertise another seven projects in motion. component; actively involve victims and in project implementation. Ambitious? Not so much, says Laper- affected communities; complement, not At the sixth ASP in November 2007, the rière who instead points to the urgency duplicate, existing projects; ensure sus- Trust Fund will request amendments to of helping the most vulnerable and mar- tainable and lasting results; and select Regulations 27 and 19, which govern ginalized victims. “I feel like we’re racing partners with a proven expertise and the Fund. The suggestion is for new lan- against the clock because some victims competency. Laperrière expects the guage that exempts private funds from are in really bad shape now and we have Fund’s ongoing website overhaul will an earmarking cap and allows states to to assist them as soon as possible.” facilitate transparency in the selection earmark funds that have been raised by process as will outreach to communities members of the board or the executive without access to the internet. director. In addition, the Fund will re- “The world must begin to see victims as full- Laperrière says the Fund supports quest fewer consultations with the Reg- fledged citizens that only need the slightest a sustainable approach to devel- istrar regarding its work. help to regain their place in society.” opment, a good example of which For Laperrière, the progress he has made he encountered on a recent trip to this year marks only the beginning of the Northern Uganda. He recalls a village Trust Fund’s potential to transform on- that faced diminishing crops and a the-ground realities. “The world has to The Trust Fund was established in 2002 decimated infrastructure. He struck a stop seeing victims as beggars,” he says. by the Rome Statute as an independent deal with the village chief to pay lo- “The world must begin to see victims as institution committed to helping victims cals in seeds for repairing roads, thus full-fledged citizens that only need the in countries where the Court has opened allowing them to both revitalize their slightest help to regain their place in so- an investigation. It is charged with im- harvest and rush their crops to mar- ciety. It is this hope that the Trust Fund plementing Court orders for repara- ket on newly paved roads. “The Trust aims to give victims.”  tions, but may also assist those in need Fund provides resources and guid- of immediate assistance even in situa- ance,” he says. “There is no free lunch: Anaga Dalal is the Coalition Secretariat’s tions where the Court has jurisdiction, all of the victims earn what they re- head of information and communications.

The Monitor No. 35 / Nov. 2007 - April 2008 e s/sitcas u

The Darfur Investigation – Stalemate and Statecraft By Deirdre Clancy

n 27 April 2007, the Interna- ations: tional Criminal Court (ICC)

p icc/as issued warrants of arrest for a

O Su dan Sudanese Minister, Ahmed Harun and a Darfurian militia leader, Ali Kushayb, on 51 counts of crimes against humanity and war crimes. The announcement was the culmination of a long and difficult investigation and many in Darfur hoped 9 that they were seeing the first glimmers of accountability for the heinous atrocities committed in Darfur. More than six months later, this hope is an increasingly distant memory. Stalemate The situation is in stalemate. On one hand the ICC prosecutor has laid a damning and detailed presentation of evidence before the Court that exposes a systematic plan by Harun and Kush- ayb to attack civilians in Darfur. At the A boy watches as a UN helicopter leaves a town in southern Darfur that has been overrun by persons internally displaced by the same time, a deeply defiant Sudanese conflict. UN Secretary General Ban Ki-moon has refrained from any public support for the ICC arrest warrants that some believe government seems determined that to be a solution to the suffering. Credit: Ron Haviv/VII neither Harun nor Kushayb will stand trial in The Hague—or anywhere else oversees the operations and access of And yet, resistance from the Suda- for that matter. Both Harun and Ku- humanitarian agencies to the region. In nese government has only increased. shayb can be seen moving freely on the September, the government had the te- In turn, the ICC prosecutor has issued streets in Khartoum and in Darfur merity to confirm that Harun would be increasingly trenchant calls for Sudan’s (The latter was in custody at the time of among those responsible for conducting cooperation with the Court through the issue of the arrest warrants but was a national investigation of a brutal at- the execution of the arrest warrants. In subsequently released.) response to the ICC prosecutor’s most recent press briefing at the United Na- States have downplayed the obligation on Sudan to cooperate tions on 20 September 2007, however, the permanent representative of Sudan, with the Court, concerned that insistence on the transfer of sus- Ambassador Abdalmahmood Abdalha- pects would derail negotiations around securing agreement for leem Mohamad denounced the prosecutor’s office as having become “politicized” the deployment of a UN mission to assist the undermined African and playing a “political game assigned to Union contingent in Darfur. him by the enemies of peace in Sudan.” The ambassador declared that “the man came here with one objective—that is to The extent to which the government of tack on civilians in Darfur in December destroy the peace process.” Sudan feels emboldened to present itself 2006—an incident that had been the as unbowed by the work of the ICC is subject of a United Nations report im- His arguments seem to have gained some crudely emphasized by Harun’s vocal plicating the government of Sudan. This traction with an international communi- national and international media ap- development has been greeted with dis- ty seemingly focused on the deployment pearances and his continuing tenure as may by many Darfurians. In the words of peacekeepers and the conclusion of a a state minister. Most gallingly for many of Niemat Ahmadi, a member of the political agreement at the possible cost of in Darfur, as state minister for humani- Darfuri Leaders Network, this appoint- international justice. States have down- tarian affairs, Harun maintains control ment is “re-victimizing our people.” played Sudan’s obligation to cooperate of the management of, and provision “The world is watching as the crimes con- with the Court, concerned that insis- of protection and assistance to, dis- tinue,” she says. “Securing justice by ar- tence on the transfer of suspects would placed populations in Darfur. Many of resting Harun and Kushayb is essential to derail negotiations around securing his charges are victims of the crimes of ensuring a sustainable peace in Darfur.” agreement for the deployment of a UN which he has been accused. Harun also mission to assist the undermined Afri-

The Monitor No. 35 / Nov. 2007 - April 2008 Su dan its attention away from In contrast to this reticence, the ICC the ICC Darfur case. “The prosecutor has pursued a media strat- victims of the conflict in egy intended to highlight the need to

ations: ations: Darfur support the ICC, execute the outstanding arrest warrants. but we are confused about This is deeply appreciated in Sudan. the intentions of the new There is also acknowledgement that, -fi UN Secretary-General nally, those sections of the ICC Court and [AU Chairman Al- Registry responsible for awareness and

u cas e s/sit pha Oumar] Konaré, who outreach have begun to engage with Su- are very much refusing to danese civil society to better inform the 10 mention justice publicly,” public and correct misperceptions about said Salih Mahmood Os- the investigation. man, a Darfurian human At the same time, despite frequent rights lawyer and opposi- statements by the prosecutor that he tion member of parlia- is continuing to investigate ongoing ment who recently won violations, there is a sense that the in- the European Union’s vestigation team is already directing its 2007 Sakharov Prize for attention elsewhere. That perception Freedom of Thought. was strengthened by the recent open- Although it is under- ing of a new investigation in the Central stood that the new UN African Republic and of a second case Secretary-General, Ban in the Democratic Republic of Congo. Ki-moon did raise the Although those working with victims issue of the outstanding of serious crimes in Darfur understand arrest warrants privately why the prosecutor might wish to see with Sudanese Presi- the first two suspects surrendered before dent Omar al-Bashir on he commits resources to a new wave of In Sudan, there is deep disappointment that attention has turned away from the ICC Ki-moon’s first visit to investigation, they would nonetheless case in Darfur. Photo Credit: Refugees International Sudan in September, he like the prosecutor to push forward with refrained from making new charges. “The victims know that can Union (AU) contingent in Darfur. any public statement on there are even more notorious perpetra- Strategic lobbying earlier this year con- the matter. Darfurian advocates’ frus- tors who still cling to power,” says Salih vinced many diplomats that Sudan’s ap- tration with the AU’s silence has been Mahmood Osman. “We cannot wait for prehension surrounding the capacity of echoed by other African advocates. Harun and Kushayb to be brought be- the prospective mission to enforce ICC Dismas Nkunda, co-director of the In- fore the Court before naming the other arrest warrants was one of the barriers ternational Refugee Rights Initiative criminals. Even if it takes a long time to to the installation of UN troops—an as- and co-chair of the Darfur Consortium bring the perpetrators to justice, they sessment challenged by many Sudanese has said that failure to address the jus- must be put on the record.” tice question “is a slap in the face to the commentators [See “Prosecutor’s An- Room to maneuver? nouncement Sends Ripples through Su- entire continent.” He warned that if dan,” Monitor no. 34]. Konaré failed to speak out on the issue Questions have been raised in Sudan, “We will feel, Konaré, that you have let and indeed by the former ICC defense us down as a continent that, after all, counsel assigned to the Darfur case, re- “We cannot wait for Harun and Kushayb to has the highest ratification rate of the garding the extent to which the country, Rome Statute. The African people have as a non-party to the Rome Statute, is be brought before the Court before nam- made it very clear that they want justice obliged to cooperate with the Court. All ing the other criminals. Even if it takes a on their soil, particularly in Darfur.” reputable commentators agree that the duty is clear. First, the current ICC in- Despite affirming from the outset the long time to bring the perpetrators to jus- vestigation is based on a decision by the vital importance of the role of interna- UN Security Council under Chapter tice, they must be put on the record.” tional justice in a series of Peace and Se- VII, which enjoined Sudan and all other curity Council decisions on the Darfur parties to the Darfur conflict to “cooper- crisis, the AU appears now to have stood ate fully with, and provide any necessary down, perhaps anxious to focus its en- Disappointment assistance to, the Court and the Pros- ergy on reviving the Darfur political ne- ecutor pursuant to the resolution” (UN There is deep disappointment among sup- gotiations under the joint chairmanship Security Council Resolution 1593.) porters of the ICC process in Sudan that of its special envoy. the international community has turned Second, as a signatory to the Rome Stat-

The Monitor No. 35 / Nov. 2007 - April 2008 e s/sitcas u ute, Sudan is obliged not to undermine cerns about traveling in the region and, A changing context: the treaty in any way. although he has not made any official trips abroad since the issue of the arrest Deployment of the ations: Recent newspaper reports indicate that warrant, there are some suggestions he the government of Sudan is looking at Hybrid Force may have been in Egypt for a short visit various alternatives to cooperating with earlier this year. Su dan the ICC. Whether these alternatives will he decision by the UN Security Council simply reinforce the government’s seem- Those who hope that the ICC can bring in Resolution 1769 to authorize a new ingly implacable intransigence towards accountability to Darfur are therefore TAU/UN hybrid operation in Darfur any form of international accountability looking to the UN Security Council to (UNAMID) has raised expectations of a shift in for Darfur crimes or whether they rep- act. By referring the situation of Darfur the political and operational dynamics surrounding 11 resent a progressive movement by the to the ICC, the Security Council took the the ICC investigation. Resolution 1769, agreed on government to acknowledge the need for political decision to see a legal determina- 31 July 2007, authorized UNAMID to carry out a some form of real accountability remains tion made in the case. It now has a politi- variety of tasks, including the protection of civilians to be seen. Certainly there is room for cal duty to ensure that those determina- and the restoration of security in Darfur to allow Sudan to engage with the Court directly tions are enforced. With Security Council humanitarian access. The scope of the mission and to challenge the admissibility of the Resolution 1769 now on the books and mandate suggests that UNAMID could contribute cases and/or the situation itself—this the UNAMID mission moving forward, to the protection of witnesses and victims whose testimony may form part of future proceedings in The Hague. UNAMID may also permit more “The issue of supporting and reinforcing the Criminal Court pro- effective investigation by the ICC on the ground by cess is really important for Darfurians and for the world. Unless providing greater security and support. those who have committed crimes are held accountable, Darfur The question has also been raised, however, as to whether the UNAMID force could have will not be stable and there will not be peace.” the capacity to affect outstanding ICC arrest warrants. Certainly an explicit addition to the mission mandate could be made by the UN would allow its strenuous objections to there appears to be space for a renewed ef- Security Council – as the originator of the referral the referral and investigation to be thor- fort to ensure that Harun and Kushayb the Council has a particular obligation to ensure oughly heard. Sudan could also choose are fairly tried—somewhere. enforcement of the orders of the Court. Further, to lobby for the Court to hear evidence Along with ensuring that the ICC pro- among the many long-term mission tasks that have outside The Hague, perhaps at a suitable cess is upheld, the Security Council been stipulated for UNAMID is the promotion venue in the region. It could begin fair must take care that the other essential of “human rights and basic freedoms…[and] and transparent trials against the two elements of Resolution 1593, perhaps the rule of law by strengthening independent accused in Sudan or seek the assistance those most necessary to ensure account- judiciary, prison system and development of of the international community, the ability for the majority of the crimes the legal framework,” in addition to monitoring African Union or another state in the committed in Darfur, are not forgotten. “the security situation at borders with Chad creation of a special or hybrid tribunal. A comprehensive program of transition- and the Central African Republic.” Among the (This latter suggestion was in fact tabled al justice, from prosecution to reconcili- at cabinet by of one of the government possible interpretations of these tasks could be ation, needs to be on the agenda of the partners during discussions on the in- preventing the flight of fugitives and engaging revived Darfur negotiations, reinforced vestigation.) Harun and Kushayb must international criminal justice mechanisms as by a reconciliation process for Sudan as be allowed to hear the evidence against part of the continuum of solutions that will be a whole. And criminal justice reform as them and have their guilt—or innocence needed to strengthen the rule of law in Sudan. required by the Interim Constitution —fairly ascertained. Whatever the legal scope for action, however, and finally underway in the parliament, there is unlikely to be much political will to back In the meantime, absent the coopera- must be supported. robust enforcement operations. Experience has tion of Sudan, the ICC prosecutor is in In the words of Niemat Ahmadi: “The shown that when it comes to the decisions of the position of supplicant: utterly de- issue of supporting and reinforcing the international criminal tribunals, international pendant on states and the international Criminal Court process is really impor- deployments are driven more by political winds community to enforce the orders of the tant for Darfurians and for the world. than law in interpreting and implementing their Court. First, although states to which Unless those who have committed crimes the accused travel and which are party mission. At the same time, as UNAMID arrives are held accountable, Darfur will not be to the Rome Statute may have obliga- on the ground, Harun’s position as a minister stable and there will not be peace.”  tions to arrest and surrender, fulfilling with responsibility for overseeing humanitarian these obligations will, as usual, be sub- Deirdre Clancy is co-director of the Inter- activities and serving as an international liaison ject to political exigencies. Harun has national Refugee Rights Initiative and co- will become increasingly untenable.  boastfully declared that he has no con- chair of Darfur Consortium.

The Monitor No. 35 / Nov. 2007 - April 2008 The Lubanga Case: Is an In Situ Trial in the Best Interests of Victims?

DRC By Roger Muchuba

ations: ations: The idea of taking the Court’s first trial to the communities where the events took place would cer- u cas e s/sit tainly make the ICC appear closer

12 to victims. But there are also considerable challenges that might undercut the perceived benefits.

considerable challenges that might undercut the perceived benefits. In general, the local population in Ituri believes that impunity in eastern DRC is responsible for the country’s recurring wars, so the approximately 60 mil- Child soldiers in training in eastern DRC. More than 60 million Congolese have been affected by the torments of war in their lion Congolese who have been affected country. Credit: Ajedika.org both physically and emotionally by the torments of war are closely watching what happens in The Hague. Although n 4 September 2007, Trial During the hearing, however, ICC judg- many may not understand the proce- Chamber I of the International es announced they would examine the dural mechanisms of the Court, the fact OCriminal Court (ICC) held a possibility of holding in situ hearings in that it is doing something to address the public hearing in preparation for the trial eastern DRC if not an in situ trial. At a rampant war crimes and crimes against against Thomas Lubanga, a Congolese press conference on the subject, Deputy humanity committed against them is a militia leader accused of war crimes in ICC Prosecutor Fatou Bensouda told welcome development. Ituri, the eastern region of the Democrat- the Associated Press: “We are always And yet, an in situ trial for Lubanga is ic Republic of Congo (DRC). The meeting in favor of bringing justice closer to the not a feasible way forward in the minds sparked the interest of many Congolese victims and certainly one way of doing of many Congolese. because up until that moment, the com- this is having the trial in the region.” The mencement of the trial against Lubanga idea of taking the Court’s first trial to For some, there is a feeling that peace had not yet been determined, leaving the communities where the events took must precede justice on the ground. many, particularly victims of the atroci- place would certainly make the ICC ap- Without a tangible peace in sight, there ties, in doubt that it ever would be. pear closer to victims. But there are also is growing fear that accomplices of 

Second DRC Case (Continued from page 1)

ous crimes, will be addressed by national been brought for everybody.” But, Wazuri soon. During the initial hearing, the judges elected officials.” notes, neither Lubanga nor Katanga has assessed whether Katanga was well treated been involved in recent crimes. “If the DRC and informed him of his rights in his native Bukeni Tete Wazuri, currently Africa and government is willing to cooperate with language, including the right to ask for in- Middle East program coordinator for WIT- the Court,” says Wazuri, “it can identify terim release. A hearing to confirm charges NESS, was instrumental in bringing the case those criminals who are currently active against Katanga and potentially send his against Thomas Lubanga to The Hague. He and accountable under the ICC mandate.” case to trial has been scheduled for 28 Feb- called the decision to open a second case ruary 2008. Judge Sylvia Steiner has been against Katanga “encouraging” because it Germain Katanga initially appeared before appointed sole judge in the case.  gives hope to Lubanga’s Hema community the Court on Monday 22 October 2007. The that the attacks it suffered at the hands Office of Public Counsel for the Defence Oriane Maillet is the Coalition Secretariat’s com- of the Lendu—Katanga’s tribe—have not provided him with interim defense coun- munications officer in The Hague. been forgotten and that “justice has now sel, but he is expected to choose a lawyer

The Monitor No. 35 / Nov. 2007 - April 2008 e s/sitcas u

Lubanga may take advantage of an un- only be held in the capital of Kinshasa. ations: stable political situation to stir up unrest Explains Decarte Mponge Malasi, focal and intimidate affected communities. point for the CN-CPI for the province of South Kivu: “It is true that with Bunia Another segment of the population DRC there can be problems of security, but in holds that the trial of Thomas Lubanga, Kinshasa, it is possible to hold an in situ whose crimes were committed in the context of an ethnic conflict, could trial for Lubanga. It is a cosmopolitan city where numerous war refugees from rekindle tensions and animosities be- 13 tween the Hema (Lubanga’s tribe) and Bunia now reside. What would be pref- the rival Lendu community. The Hema erable is for the first part of the trial to feel unfairly targeted and marginalized be in Kinshasa, and for the final argu- because Lubanga was the first—and for ments and the rendering of a verdict to a while the only—defendant sought by occur in The Hague. Our sense is that the Court. Meanwhile, equally culpable issuing the verdict with Lubanga present criminals from the Lendu community, anywhere on Congolese soil is bound to they say, are still on the run. The Court’s result in more violent unrest throughout recent opening of a second case against the country, particularly in the east.” Germain Katanga, who is from the Although the question of an in situ Lendu community, may lessen concerns hearing remains unanswered, it was regarding interethnic tensions, but a lot certainly cause for celebration when the of damage has already been wrought. judges of Trial Chamber I announced And in Ituri, Thomas Lubanga’s strong- that the trial against Lubanga is expect- hold, the security situation is improving ed to begin on 31 March 2008. From a which is why some feel an in situ trial victim’s perspective, where the trial is could undo the progress of an otherwise held, whether in the Ituri region, Kin- successful disarmament effort. shasa or The Hague, matters less than For its part, the DRC National Coalition the fundamental need for justice. The Thomas Lubanga Dyilo (foreground), charged as a co-perpetrator of for the International Criminal Court Court must succeed where the Congo- war crimes relating to the enlistment and conscription of children (CN-CPI) welcomes the prospect of an lese judicial system has failed, and bring under the age of 15 years. Credit: HRW in situ trial because it would demon- legitimacy to its founding principle strate the relevance of the Court’s work that the commission of grave crimes Roger Muchuba is deputy coordinator of in alleviating victims’ suffering. Yet, the anywhere—including the Congo—will the DRC National Coalition for the ICC CN-CPI believes trial hearings should meet with justice.  (CN-CPI). Registry Clarifies Its Outreach to Victims in Preparation for Lubanga Trial After Trial Chamber I in the case against ties in Ituri, with organizations that work transferred to The Hague on 17 March Thomas Lubanga Dyilo had asked the Reg- with children and with religious and com-  2006. He appeared in Court three days lat- istry to inform victim applicants about the munity leaders. VPRS staff again clarified er. Charges against Lubanga were confirmed current timetable for proceedings, the Moni- the process of preparation for trial and the on 29 January 2007, sending the case to trial. tor contacted Head of the Victims Participa- role of victims in that process. These activi- The Chamber held that there was sufficient tion and Reparation Section (VPRS), Fiona ties are ongoing. McKay says the decision to evidence to establish substantial grounds McKay, to find out more. She explained how specifically notify victims of the steps to pre- that Lubanga was criminally responsible as victims were informed in practice: “After pare for the trial “sends a clear message from a co-perpetrator of war crimes during Sep- preparing a note explaining the announce- the start that the Chamber is taking very tember 2002, when the Force Patriotiques ment of the preparation hearings to lawyers, seriously the responsibility of the Court to pour la Liberation du Congo (FPLC) was NGOs and other contacts, the VPRS field keep victims informed throughout the pro- founded, and on 13 August 2003. Lubanga staff in the DRC met with the lawyers and in- ceedings.” The question of how victims will termediaries who would directly explain the participate in the trial will be addressed dur- is charged with three war crimes: enlisting proceedings to victims.” For McKay, these ing the series of hearings. McKay also noted children under the age of 15; conscripting meetings provided an opportunity to explain that “the legal representatives of the victims children under the age of 15; and using chil- and to answer questions about the process, will be able to give their views on other as- dren under the age of 15 to participate ac- as well as to discuss in practical terms how pects of the preparation for trial.” tively in hostilities.  to inform the victims directly. The Registry also conducted some wider outreach activi- Thomas Lubanga Dyilo was arrested and –Oriane Maillet

The Monitor No. 35 / Nov. 2007 - April 2008 The Opening of the Court’s Investigation CAR in the Central African Republic By Marceau Sivieude

ations: ations: to the scene of the conflict and the mass graves, collecting testimonials from numerous victims and eyewitnesses: the report describes summary executions, rape, and systematic pillaging, all of u cas e s/sit which fall within the jurisdiction of the International Criminal Court (ICC). 14 Additional FIDH reports confirmed that between November 2002 and March 2003, when the regime was overthrown by rebels (led by Bozizé), both parties committed crimes falling under the ICC’s jurisdiction. Cases of slavery and of forced pregnancy were reported in different base camps housing Bozizé’s troops. Given that the CAR ratified the Rome Statute in 2001, FIDH transmitted communications to the ICC Office of the Prosecutor in March 2003 to im- press upon the ICC prosecutor the critical need to open an investigation of Some hope that the opening of an investigation in the CAR will help deter the commission of further crimes in the conflict that the situation. has ravaged the north since 2006. Credit: Refugees International Two major developments helped support and advance FIDH arguments in n 22 May 2007, the Prosecutor Central African League for Human favor of the opening of an investigation. of the International Criminal Rights (LCDH) alerted FIDH to the In December 2004, the Central African OCourt (ICC) Luis Moreno- existence of serious international crimes government refered to the ICC prosecu- Ocampo announced the opening of perpetrated against civilians during tor the commission of crimes for which his fourth investigation in the Central an attempted coup by General Bozizé ex-president Patassé was responsible. African Republic (CAR), with a focus against President Ange-Felix Patassé. Bozizé’s referral was an opportunity to on the large-scale incidence of sexual sideline his opponent’s candidature for A month later, FIDH sent an inves- crimes against women committed in the 2005 presidential election on the tigation team to the CAR to evaluate 2002 and 2003. grounds that it would be immoral. In the context under which the fighting addition, in April 2006 the Supreme took place and to determine the legal Court of Appeals of Bangui (Cour de definition of the crimes targeting the FIDH went to the scene of the conflict and Cassation de Bangui) which received a population. The team’s report recounts complaint against Patassé, Jean Pierre the mass graves, collecting testimonials the attacks directed by General Bozizé Bemba, Miskine and others, ruled that in October 2002 at Bangui against the the crimes committed in 2002 and 2003 from numerous victims and eyewitnesses: loyalist forces of the national army, Jean fell exclusively under the ICC’s jurisdic- Pierre Bemba’s Congolese mercenaries, the report describes summary executions, tion, thus confirming the decision of the and Abdoulaye Miskine’s Central Afri- rape, and systematic pillaging, all of which can soldiers. This report revealed that a Bangui Appeals Court in December fall within the jurisdiction of the ICC. number of civilians were killed during 2004 that national courts were unable to gunfights and bombardments, in viola- investigate and prosecute the crimes. Al- tion of the Geneva Convention. though the referral by the CAR govern- Civil society involvement was key to ment and prosecutions at the national In early November, Bozizé’s troops re- the opening of this case. The Interna- level concerned only crimes committed treated to form a front line several hun- tional Federation for Human Rights by one party to the conflict, once the ICC dred kilometers from the capital. Dur- (FIDH) provided the Court with key is on the case, it can declare itself compe- ing the counter attack, loyalist troops information regarding the situation in tent to investigate crimes committed by committed serious crimes against the ci- the country. all parties involved in the conflict. vilian population whom they accused of In October 2002, FIDH member the complicity with the rebels. FIDH went However, neither the referral of the situation by the CAR government nor

The Monitor No. 35 / Nov. 2007 - April 2008 the incapacity of the highest court con- finally respond to the cries vinced the Office of the Prosecutor of victims of sexual vio- e s/sitcas u to react. In fact, on several occasions lence, and bring to justice, FIDH denounced the slow pace of the for the first time, the per- preliminary analysis led by the Office of petrators of these crimes, the Prosecutor. According to the analy- in line with the Rome sis carried out by FIDH, this slowness Statute’s robust gender ations: was due to the Office of the Prosecutor’s protections. And lastly, difficulty in responding to certain ques- FIDH maintained that tions linked to the criteria of admis- the launch of an investi- CAR sibility when starting an investigation: gation in the CAR could Are the crimes committed in the CAR have a deterrent effect sufficiently grave as required by the ICC among some perpetra- statute? How should the gravity of the tors of crimes from 2002 15 crimes be evaluated? Are existing judi- who remain active in the cial proceedings in the CAR acceptable conflict that has engulfed enough to eliminate the need for inter- the north since 2006. Ac- national judicial intervention against cording to Marie-Edith certain perpetrators in accordance with Douzima Lawson, coor- The more than one thousand members of OCODEFAD include many victims of sexual the principle of complementarity? Can dinator of the CAR Co- violence in the CAR. Credit: FIDH we say that a situation is admissible even alition for the ICC, the though proceedings have not exhausted Court’s investigation is The launch of the investigation was all available legal recourses? one capable of sending “a strong message widely praised in the field: “The victims to past, present and future criminals of sexual crimes, long forgotten and stig- To move the case forward, FIDH made that impunity no longer has a place in matized in the CAR, have been heard,” a concerted effort to improve and deepen our society.” rejoiced Bernadette Sayo, president of the dialogue between Central African OCODEFAD. But victims are aware civil society actors and the Office of the Finally, four years after receiving the re- that the launch of the investigation is Prosecutor. It also led several investiga- ferral, the prosecutor announced on 22 only the start of a long process that the tive field missions, in close collabora- May 2007 the launch of an investigation Central African society must follow in tion with its affiliated organizations, of crimes committed in the CAR, particu- order for the perpetrators of interna- the Central African League for Human larly sexual crimes. During his announce- tional crimes to be adequately prosecut- Rights (LCDH) and the Organization ment, the prosecutor recognized the posi- ed and punished.  for Compassion and Development of tive contribution of nongovernmental Families in Distress (OCODEFAD), organizations in bringing forth evidence Marceau Sivieude heads the Africa Office an organization composed of more than that helped him make a decision. of the International Federation of Human 1,000 members, mainly victims of sex- Rights (FIDH). ual crimes. The subsequent mission reports presented victims’ testimonies and documented the scope and degree of the crimes, notably gender-based crimes. In Court Opens Field Office in Bangui, CAR response to these reports, Luis More- In mid-October, less than five months after are set very high,” explains LCDH President no-Ocampo later announced: “The in- ICC prosecutors agreed to open an investiga- Goungaye Wanfiyo. “As a result, Central Afri- formation we have now suggests that tion in the country, ICC Registrar Bruno Ca- can NGOs have set up outreach and awareness the rape of civilians was committed in thala inaugurated the Court’s first field office building activities in order to explain the ICC’s numbers that cannot be ignored under in the capital of Bangui, stating that: international law.” To push the Court role and notably the system of victims’ partici- to act, says LCDH President Goungaye “[T]he legitimacy of the International Crimi- pation in the procedures. NGOs have insisted Wanfiyo, FIDH mobilized intergovern- nal Court was especially dependant on its ac- on the importance of establishing an ICC office mental organizations, notably the Afri- ceptance and the understanding of its role by in the CAR and on reaching the local popula- can Commission on Human Rights and the people of the Central African Republic tion through the use of mass communication People, the African Union, the United and, in particular, by the victims of crimes un- tools, such as the radio, since many CAR in- Nations and the European Union to de- der investigation by the Prosecutor.…Opening habitants do not know how to read.” nounce the impunity in the country. a field office…makes it possible to tackle the fundamental challenges facing the Court, and It is hoped that this field office can help bridge In its discussion with the Office of the beyond that, meet its needs for the investiga- the gap between victims and the Court. Prosecutor, FIDH expressed concern tions being conducted by the Prosecutor today, over the precarious situation facing vic- In the words of Souhayr Belhassen, president and those conducted by the Defense lawyers in tims who publicly called for the ICC’s of FIDH, “Justice is essential for building a the future…. ” intervention. FIDH also insisted that sustainable peace in CAR. The ICC has the the situation in the CAR provided the “From now on, the population’s expectations opportunity to contribute to this cause.”  Court with an exemplary opportunity to

The Monitor No. 35 / Nov. 2007 - April 2008 Ugandan Women Reflect on Accountability and Reconciliation By Brigid Inder ug anda ations: ations: u cas e s/sit

In Gulu, Northern Uganda, more than 40 women leaders gather to discuss justice, reconciliation and peace. Credit: Women’s Initiatives for Gender Justice

n July 2007, the Ugandan Women’s and suffering in the North, reconcilia- on the peace talks and the agreements Coalition for Peace and the Wom- tion between the government of Ugan- signed thus far, and to seek their views Ien’s Initiatives for Gender Justice da and the LRA/M and reconciliation on the crucial issues of justice, reconcili- consulted with women in three districts of these parties with the communities ation and peace. in Northern Uganda on the issues of in the Greater North, and a strong At the ‘Gulu Gathering,’ women articu- accountability and reconciliation, as emphasis on individual and communal lated their vision, demands and propos- outlined in the peace agreement signed compensation and on reconstruction als for accountability and peace. They by the government of Uganda and the and development for the North. also identified a wide range of perpetra- Lord’s Resistance Army (LRA/M) on In August, the Coalition and the Wom- tors of violence including: 29 June 2007. During these prelimi- en’s Initiatives for Gender Justice held a • The LRA/M • The government of Uganda and the “This conflict has caused the destruction of whole communities, there must UPDF • Karamajong and other cattle rustlers be justice for all this suffering. We want an end to impunity, and we should • Local defense units also be compensated for what has happened to us.” • Individual perpetrators who have taken advantage of the chaos created by the conflict to commit crimes, nary consultations, the team met with particularly against women and girls meeting in Gulu with 40 women leaders more than 750 women. Overwhelm- from the northern and northeastern ar- Apprehending some of these perpetra- ingly, the most pressing issues that eas of Uganda (who subsequently formed tors is beyond the scope of the peace arose were the need to hold account- the Greater North Women’s Voices for talks. However, violence against wom- able those responsible for the violence Peace Network) to provide information en will not end with the completion of

The Monitor No. 35 / Nov. 2007 - April 2008 e s/sitcas u the peace talks and the signing of the Comprehensive Peace Agreement. The women saw the talks as the beginning of a process that must address all forms of violence, ultimately preventing violence ations: against women and girls and ending the culture of impunity for such crimes. ug anda As one participant said, “This conflict has caused the destruction of whole communities. There must be justice for all this suffering. We want an end to impunity, and we should also be 17 compensated for what has happened to us. I want to return to my home and plant my crops, I want my children to know where they come from. But how can we do this when we don’t have any resources?” Accountability and Justice Women from the northern and northeast- Members of Northern Ugandan women’s groups meet with the Women’s Initiatives for Gender Justice ern part of the country expressed the need to discuss their concerns and hopes for the future. Credit: Women’s Initiatives for Gender Justice for multiple and complementary forms of accountability. They agreed that differ- under Ugandan law but prohibited by ent crimes and different levels of perpe- the Rome Statute. Establishment of a Truth and Reconcilia- trators should be dealt with by different Women from the conflict-affected tion Commission was proposed to facili- courts and processes including the formal communities support the establish- judicial system, alternative justice mecha- ment of a special court to supplement tate and decide on less serious crimes and nisms and traditional justice processes. the role of the ICC in cases involving lower level perpetrators. The women support a role for the ICC senior commanders of the UPDF and in addressing the most serious crimes, LRA/M, and for serious crimes such including gender-based crimes, com- as crimes against humanity, war crimes Women in Northern Uganda propose mitted by the top commanders of the and gender-based crimes. They believe that all perpetrators be brought to justice LRA/M and the UPDF, should the a special court should be established in using traditional mechanisms adapted to ICC bring charges against any army Uganda according to the principles and respond to the suffering of the commu- commanders or other state actors. They provisions of the Rome Statute, the El- nities and the crimes committed there- continue to express dissatisfaction with ements of Crimes and Rules of Proce- in, particularly against women, during the one-sided investigations conducted dure and Evidence. the conflict. For less serious crimes and lower-level perpetrators, the use of tradi- by the ICC; since 2004, women from the Establishment of a Truth and Reconcili- tional mechanisms could be the primary Greater North and their allies have been ation Commission was proposed to facili- form of accountability. Women seek to calling for investigations into all crimes tate and decide on less serious crimes and modernize traditional mechanisms and and parties to the conflict. lower-level perpetrators. The commission to be involved as decisionmakers and It appears it is not the presence of the could hear testimonies from all levels of clan leaders in the transformation of charges against the LRA/M that are a perpetrators and their victims, but should the traditional practices. They stressed barrier to the peace talks, but the ab- have a mechanism to refer the most grave the importance of the traditional system sence of charges against the UPDF and and serious crimes to the formal judicial recognizing women’s rights, conforming other state actors for crimes committed bodies (such as the ICC or special court). with the Ugandan Constitution and the during the 21-year conflict. Women want the commission to place a international agreements to which Ugan- strong emphasis on victims’ participation, da is a party, including the Convention Women from the Greater North con- creation of an accurate historical record, on the Elimination of All Forms of Dis- sider the ICC a forum for truth-telling truth telling and reparations. and a place for victims to participate in crimination Against Women (CEDAW) proceedings. They have confidence that “We want to speak for ourselves about the Children’s Rights Convention (CRC) the ICC will ensure a more rigorous and what has happened to us,” said one par- and the Rome Statute.  transparent judicial process than that ticipant. “How can someone who has Brigid Inder is the executive director of the which exists in Uganda, and will oppose not had their ears and lips cut off speak Women’s Initiatives for Gender Justice the use of the death penalty as allowed for me, what do they know? “

The Monitor No. 35 / Nov. 2007 - April 2008 National Trials in Uganda Must Reflect Gravity of CrimesBy Elise Keppler ug anda he International Criminal the atrocities committed in Northern United States are also vital. The U.S. Court (ICC)’s arrest warrants Uganda. Serious crimes by the LRA and government has taken a positive stance

ations: ations: Tfor leaders of the rebel Lord’s to a lesser extent government forces have vis-à-vis the ICC’s involvement with Resistance Army (LRA) are playing a been documented by a number of orga- Uganda, enhancing the trend toward a critical role in promoting justice and nizations, including our own. Human more recent constructive relationship peace for Northern Uganda. The war- Rights Watch also supports national with the court. rants are widely recognized as having trials for serious crimes committed that Of course, it is the ICC judges alone u cas e s/sit been crucial to getting the LRA and the will not be prosecuted at the ICC. who ultimately will determine whether government of Uganda to peace talks, 18 The Rome Statute does give preference a national trial is a sufficient alternative which have been taking place in Juba, to national trials, but only where states to its cases. Moreover, if a national trial Southern Sudan since July 2006, in the are willing and able to conduct them. proves inadequate, the ICC statute sug- first place. More recently, they appear Nevertheless, as Human Rights Watch gests that the case can be brought back to be helping spur plans to hold domes- has attempted to detail in memoranda to the ICC for prosecution. tic trials for the most serious crimes issued this year, such adequate national committed during the 20-year North- trials are no easy task. Consistent with ern Ugandan conflict, including and the Rome Statute and other interna- LRA accused should not be able beyond ICC cases. tional standards, investigation and prosecution should be credible, impartial, to use national courts to avoid The Rome Statute does give prefer- and independent; international fair trial the possibility of punishment rights must be adhered to in principle ence to national trials, but only under and practice; and appropriate penal- if convicted…international certain conditions. ties that reflect the gravity of the crime practice is clear that terms should be imposed. of imprisonment that match Whether domestic prosecutions would Not surprisingly, LRA leaders have sought meet these standards remains unclear, the seriousness of the offense to use peace talks to demand that the ICC and it looks as if penalties may become a warrants somehow be dropped. In initial should be the primary pen- major issue. LRA accused should not be phases, amnesty and measures revolving able to use national courts to avoid the alty for war crimes and crimes around confession and reconciliation (such possibility of punishment if convicted. as the Acholi traditional justice practice of The Rome Statute’s complementarity against humanity. A “slap-on- mato oput) without any prosecutions were provisions do not expressly refer to pen- the focus of discussions. the-wrist” sentence would be alties, but in our view they go directly to a However, the negotiations have rightly re- state’s willingness to prosecute. Notably, tantamount to impunity and flected that this is not possible, and have international practice is clear that terms taint what might otherwise be sought to find an acceptable way forward. of imprisonment that match the serious- In a potentially important step, an agree- ness of the offense should be the pri- fair and credible trials. ment between the parties on accountabil- mary penalty for war crimes and crimes ity and reconciliation signed on 29 June against humanity. A “slap-on-the-wrist” Fair, credible trials with proper penal- 2077 recognizes the importance of trials sentence would be tantamount to impu- ties for the most serious crimes are es- for serious crimes and envisions domestic nity and taint what might otherwise be sential to accountability, but we believe prosecutions of those who “bear particular fair and credible trials. that they are also critical to establishing responsibility” for such offenses. Recognizing the challenges, in addi- a durable peace. They send the message, The parties have since then been work- tion to the government of Uganda, ICC especially to would be perpetrators, that ing to develop proposals to implement states parties who are major donors to heinous abuses will not be tolerated and the 29 June agreement on the basis of Uganda—including the United King- build respect for rule of law. As indicated consultations with affected communi- dom, the Netherlands, and Norway— by developments in recent months, this ties, civil society and justice practitio- have a key role to play in insisting on view appears to be gaining currency in ners. The consultations have given some fair, credible prosecutions with appro- Juba and among stakeholders. Yet much victims the first opportunity to speak priate penalties whether before the ICC remains to be done, only underscoring publicly about achieving peace and jus- or national courts. African ICC states the need for vigilance by the interna- tice for Northern Uganda. parties who are observers to the peace tional community in working to ensure talks—namely Tanzania, South Af- both peace and justice are achieved.  Human Rights Watch strongly sup- rica, Kenya and the Democratic Repub- ports the ICC warrants and trials of lic of the Congo—should do the same. Elise Keppler is counsel with the internation- LRA leaders as a crucial opportunity Of course, the United Nations and the al justice program at Human Rights Watch. to see justice done for at least some of

The Monitor No. 35 / Nov. 2007 - April 2008 UNICC International Justice Gains Momentum at United Nations By Sasha Tenenbaum u n-icc ver the past several months, provided for the ar- references to the International rest and transfer of OCriminal Court and interna- Mr. Katanga.” tional justice in general, have figured Twenty-two states prominently in the discourse at the made statements fol- United Nations. What follows are se- lowing the ICC pres- lect highlights from key meetings at UN ident, including Su- headquarters in New York. dan which exercised 19 ICC President Kirsch Presents ICC’s the right to reply. Third Annual Report to the UN 62nd Session of UN Judge Philippe Kirsch, president of the General Assembly ICC, presented the third annual report The General Assem- of the ICC to the UN General Assem- bly held a General bly on 1 November 2007, asserting that Debate during its the UN is in a position to take actions to 62nd session from 25 sustain the Court, including: 1) opera- ICC President Philippe Kirsch meets with UN Secretary-General Ban Ki-moon at UN Headquarters in New York. September to 3 Oc- tional cooperation, especially in the area Credit: UN Photo/Evan Schneider tober 2007. Fourteen of relocation and protection of victims Member States made and witnesses; 2) empowerment of UN stressing the importance of a timely specific reference to the ICC, notably missions to fully support and cooperate deployment of the hybrid force and the Australia, Benin, Costa Rica, Denmark, with the Court; and 3) public and diplo- need to end the suffering in the region. Japan, Liechtenstein, Luxembourg, Por- matic support for the Court. Several governments including Belgium, tugal (on behalf of the European Union), France, Peru, Slovakia, and the United The Netherlands, New Zealand, Peru, Kingdom underscored the importance “The ICC may be the bold new Switzerland, Trinidad and Tobago, and of the Court’s work. Uganda. In his speech, UN Secretary- centerpiece of the internation- General Ban Ki-moon declared “The age Prime Minister Guy Verhofstadt of Bel- of impunity is dead.” gium said: “I therefore ask individually, al criminal justice system, but the members of the Security Council to it needs cooperation and sup- Speaking on behalf of the EU, Prime [arrest Kony]. We have the possibility; Minister José Sócrates of Portugal said: MONUC is in east Congo, and we know port in order to flourish…” “We support the International Criminal where Kony is. Let us arrest him and Court, and we call for the universal rati- put him on trial and make an example of fication of the Rome Statute. We stress President Kirsch observed that “compli- him, as a warning to all criminals.” the need for cooperation by both mem- ance with the decisions of the Court is ber states and non-member states with UK Minister of State at the Foreign not just another issue on the negotiat- the Court in general, and as regards the and Commonwealth Office Kim How- ing table. Rather, it is a legal obligation execution of arrest warrants in specific.” ells said: “There can be no impunity in under the Rome Statute and relevant Darfur. Sudan should fully cooperate resolutions of the Security Council.” He Then-President Néstor Carlos Kirchner with the International Criminal Court. also noted that “without arrests, there of Argentina said (in Spanish): “We will Our Belgian colleague gave us a vivid can be no trials [and] without trials, vic- take decisions to combat impunity. We and tragic example of what happens tims will again be denied justice and po- also condemn those who have violated when these war criminals believe that tential perpetrators will be encouraged human rights and have received impuni- no one will make them answer for their to commit new crimes with impunity.” ty. There have been threats to witnesses. despicable crimes. We have to make We condemn all of these acts.” Ambassador Allieu Ibrahim Kanu of Si- them answer.” erra Leone declared UN cooperation and UN Security Council Summit on Coming Up: ICC Prosecutor to Brief UN support of the Court to be of critical im- “Peace and Security in Africa” Security Council in early December portance: “The ICC may be the bold new On 25 September, French President centerpiece of the international criminal In early December 2007, ICC Prosecu- Nicolas Sarkozy organized a summit justice system, but it needs cooperation tor Luis Moreno-Ocampo will report to solidify support for a combined UN- and support in order to flourish and to to the Security Council on the situation African Union peacekeeping force that retain its strength and vitality…We can in Darfur.  would put more than 26,000 soldiers now see in action how important it is to in Darfur. Darfur was the prime focus Sasha Tenenbaum is the Coalition Secretari- nurture and develop that relationship, of the discussion, with most speakers at’s information services coordinator. particularly with the support the UN

The Monitor No. 35 / Nov. 2007 - April 2008 updateafrica UCICC holds National Conference on Accountability and National Reconciliation

n September at the National Con- tion to the Juba talks; the role and impor- perpetrators. As a result, there was a call to sultative Workshop on Reconcilia- tance of accountability in creating lasting pressure the ICC to investigate the UDPF Ition and Accountability, the Uganda peace in the entire country in spite of the and individual noncombatants who took r eg ional Coalition for the International Criminal “north-south” divide; assistance to victims advantage of the violent conflict in North- Court (UCICC) brought together more of gender-based crimes; and modalities for ern Uganda to commit atrocities. Some than 45 UCICC members and other achieving national reconciliation. participants, however, emphasized the stakeholders, including members of the ICC’s positive contribution to combating Acholi Parliamentary Group, representa- Participants welcomed the government’s impunity, bringing attention to the need for ongoing national consultations as a posi- 20 tives of the LRA and the Uganda Peoples local jurisprudence that is consistent with Defence Forces (UPDF). Participants tive gesture, but expressed concern—even international human rights norms. These discussed the contentious peace agree- outrage—about its timing. “The logical views and the many others that emerged ment, which aims to incorporate both sequence of things has been twisted. They from the consultation will be reflected in the formal legal system and traditional have put the cart before the horse!” one a statement that participants will direct to mechanisms in an effort to address crimes participant lamented. However, none of the chief mediator for the Juba peace talks, committed by both sides during the two- the NGO concerns will be incorporated facilitators of the government’s consultative decade-long conflict. into the agreement because negotiations meetings, the Acholi Parliamentary Group, have since concluded. the Ministry of Interior and the law reform Structured around four broad concerns, commission of Uganda.  this one-day conference examined the role Participants also highlighted the negative and views of victims, which had been in- perception of the ICC in Northern Uganda, Ndifuna Mohammed, national coordinator adequately addressed during the ongoing where the Court is seen as biased against of HURINET-U and chair of the steering consultations by the government delega- the LRA since it has not targeted UPDF committee of UCICC updateasia Celebrating International Justice in Asia: CICC Members Commemorate July 17th

member of the ICC, Japan will work even spotlighted the urgency of joining the more closely with your government, and Court. The Nepali National Coalition the same will hold true for other Asian na- presented a letter endorsed by 106 civil tions that join the ICC.” society groups calling on the government to accede to the ICC immediately. In Kuala Lumpur, the Malaysian Bar urged the government to live up to its “long and In India, a television station broadcast time-honored commitment to the cause of an hour-long program on the Court that international humanitarian law and peace- examined the benefits and concerns with keeping.” In a formal statement issued on Indian accession to the Rome Statute. 17 July, Malaysian Bar President Ambiga ICC-India Coordinator Saumya Uma Sreenevasan expressed the organization’s highlighted the importance of continued readiness to assist the Malay government awareness-raising and said, “there is a Kenzo Oshima, Japan’s UN permanent representative, at the formal de- with ratification of the treaty as had the need to use the ICC as a standard-setting posit with Nicolas Michel, under-secretary-general for legal affairs and Malaysian Human Rights Commission mechanism to strengthen the domestic UN legal counsel, and Annabeth Rosenboom, chief of the UN treaty sec- (SUHAKAM), national human rights legal system.” tion, at UN Headquarters in New York. Credit: CICC organizations and professional organiza- Organizations in Indonesia, China, Cam- tions across the political spectrum. apan’s long-awaited accession to the bodia, Mongolia and Bangladesh also com- Rome Statute on 17 July 2007 gave CICC In Nepal, with the first anniversary of memorated International Justice Day as part members in Asia reason to celebrate. the 2006 unanimous commitment reso- of their campaigns against impunity and in J lution directing the House of Represen- favor of the ICC. Their actions demonstrate In the Philippines, CICC members orga- tatives to accede to the Rome Statute, that while Asia is still underrepresented at nized a forum to commemorate Japan’s ac- local groups in Kathmandu urged the the ICC, Coalition members remain unde- cession and to press their own government government to end the delay in becom- terred in their advocacy to secure greater to join the Court. Ryuichiro Yamazaki, ing a state party to the treaty. Designat- support for the Court in the region.  the Japanese ambassador to the Philip- ing the first week of July as ICC Week, pines encouraged his host country to move Coalition members organized advocacy Evelyn Serrano, the Coalition Secretariat’s forward swiftly with ratification, even not- meetings with government officials, Asia/Pacific regional coordinator ing that “once the Philippines becomes a demonstrations and workshops that

The Monitor No. 35 / Nov. 2007 - April 2008 updateeurope Czech Republic Stirs Constructive Debate on Ratification r eg ional he Czech Republic is the only posal reflects changes that have resolved European Union member state parliamentary concerns with a previous Tthat has yet to ratify the Rome version. Minister of Foreign Affairs Karel Statute of the ICC. It signed the Statute Schwarzenberg has said he will submit the in 1999 and despite attempts at ratifica- proposal to the cabinet as soon as possible. tion in the past (the last in 2001) advo- Meanwhile, part of the Ministry’s ICC in- cates have been unable to secure support formation campaign included a seminar in from politicians. Though lack of political the Czech Parliament on 4 October 2007. will has been the most persistent obstacle Keynote speakers included ICC President 21 to ratification, the mood in the govern- Philippe Kirsch and ICC Chief Prosecutor ment may be changing. Luis Moreno-Ocampo, among others. The David Donat Cattin from Parliamentarians for Global Action, speaking Recently, Former Minister of Foreign Af- seminar was well attended by government at the NGO roundtable discussion - Prague, October 2007. Credit: CICC fairs and current Chairman of the Legisla- officials and academics. tive Council, Cyril Svoboda, described the A group of Czech NGOs supporting the cerns regarding immunity and politically government’s failure to ratify as a “shame ratification of the Rome Statute, in coopera- motivated prosecutions. and manifestation of provinciality.” Prime tion with the Coalition for the Internation- Minister Mirek Topolanek followed with a In the coming months, the Czech Coali- al Criminal Court and Parliamentarians declaration that the country’s failure to rat- tion for the ICC will lobby lawmakers for Global Action, organized a roundtable ify the Rome Statute is “hardly bearable.” through a letter writing campaign and bi- discussion during a parallel event on 5 Oc- lateral meetings in advance of an upcom- In addition, a proposal for ratification pre- tober 2007. Four parliamentarians from the ing parliamentary debate on the ICC.  pared by the Ministry of Foreign Affairs in main political parties presented their views cooperation with the Ministry of Justice on Czech ratification of the Rome Statute. Jan Kratochvíl, coordinator of the Czech Co- is currently under discussion. The pro- The discussion eased parliamentarian con- alition for the ICC and member of the League of Human Rights updateLAC Looking Ahead to the Review Conference

rticle 123 of the Rome Statute pressed their support for holding the con- also taken up. Some downplayed its im- calls for a Review Conference ference in Uganda, recognizing that do- portance since it had only been employed A(RC) to consider any amend- ing so would bring the ICC closer to the by Colombia and France and will soon ments to the Statute in 2009, seven years region as well as to victims themselves. expire for both. Others argued that the after its entry into force. With the date Others expressed concern that having provision should be removed from the fast approaching, the Human Rights the conference in a situation country Statute altogether. Program at the Iberoamerican Univer- could jeopardize the impartiality of ICC In terms of adding crimes under the sity of Mexico, the Ministries of Foreign investigations and proceedings and com- Court’s jurisdiction, some participants Affairs of Canada and Mexico and the plicate security issues on the ground. felt quite strongly that the ICC should CICC organized a two-day seminar in Many called for establishing criteria in take on drug trafficking and terrorism, Mexico City in late August to reflect on the selection of a venue, and for holding referring to Resolution E of the Final Act the challenges ahead and possible agenda preparatory meetings to ensure owner- which explicitly mentions these crimes. items for the Review Conference. Partici- ship, transparency and support for the Others were wary of opening up the pants from 18 governments mostly from outcomes of the conference. crimes for discussion, fearing that doing the Americas as well as representatives How to define the crime of aggression so could politicize the ICC’s work, since from civil society, the Court and aca- was one of the key debates during the agreed upon definitions would be diffi- demia agreed to speak in their personal, meeting. The possible politicization of cult to attain. not professional, capacities. the Court in the context of an exclusive In general, there was consensus that the Perspectives varied significantly on the Security Council determination and the first Review Conference has the potential RC, and particularly on possible venues need to ensure the impartiality, autono- to be a landmark in the evolution of the for the conference, the definition of the my and integrity of the ICC as a judicial ICC. Initiatives such as this Hemispheric crime of aggression, the review of Article body were recurring points throughout Seminar are important steps toward en- 124 and the inclusion of additional crimes the discussion. suring its success.  such as drug trafficking and terrorism. The fate of Article 124, the seven-year, Sofía Lascurain Sánchez de Tagle, human In terms of venue, some participants ex- opt-out provision for war crimes, was rights researcher, Ibero-American University

The Monitor No. 35 / Nov. 2007 - April 2008 updateMENA Kuwait Boasts New National Coalition for the ICC

n May, Kuwait inaugurated its first national coalition for the Internation- al Criminal Court, bringing the total

r eg ional I number of ICC coalitions in the Middle East/North Africa region (MENA) to ten. In stark contrast, only three MENA states—Jordan, Djibouti and the Comoros Islands—have ratified the Rome Statute, 22 the founding treaty of the ICC. Although the region is one of the most under-rep- resented at the ICC, a number of positive developments bode well for international justice in the Middle East. To begin, the new Kuwaiti Coalition will be essential to advancing the cause of the ICC in a manner sensitive to Kuwaiti politics, culture and judicial processes. Amal Basha, regional coordinator of CICC MENA (left) and Dina Assaf, UNDP deputy resident repre- The formation of the coalition followed sentative (right) award human rights activists at Sisters’ Arab Forum’s annual Human Rights Defend- the country’s first national workshop on ers Awards ceremony on International Justice Day at the CICC MENA office in Sana’a, Yemen. July 2007. the ICC in May and highlights the grow- Credit: Muheeb Sharaf Abdulrab ing support for the Court in Kuwait. In early 2007, the Ministry of Foreign Af- Secretariat, the Kuwaiti Human Rights In the greater MENA region, the United fairs announced that it was preparing a Association and the Kuwaiti Lawyers As- Arab Emirates is expected to introduce a ratification proposal to be submitted to sociation. The meeting brought together federal law that would allow for the pros- civil society organizations, parliamentar- the parliament. The proposal is expected ecution of international human rights ians, human rights activists and members crimes, and Morocco may include these to address certain contradictions be- of the media. “International law has so far crimes in its constitution as well. National tween the Rome Statute and the Kuwaiti been a toothless tiger,” said CICC MENA coalitions for the ICC in both countries will constitution, especially those relating to Regional Coordinator Amal Basha. “Now be closely following these initiatives.  immunity for government officials. we have the ICC, which gives strength and The May workshop was organized by the force to human rights advocates in Kuwait, Amal Basha and Rasha Jarhum, CICC Yemeni and Gulf coalitions for the ICC the region and globally who have been MENA Secretariat in collaboration with the CICC MENA fighting against impunity for so long.”

States Parties and Signatories to the Rome Statute 105 Ratifications/Accessions and 139 Signatories as of 1 November 2007

States Central African Republic Germany Marshall Islands Slovakia Signatories Kyrgyzstan Parties Canada Ghana Mauritius Slovenia Madagascar Chad Greece Mexico South Africa Algeria Monaco Afghanistan Colombia Guinea Mongolia Spain Angola Morocco Albania Comoros Guyana Montenegro St. Kitts & Nevis Armenia Mozambique Andorra Congo (Braz.) Honduras Namibia St. Vincent & Bahamas Oman Antigua & Barbuda Costa Rica Hungary Nauru the Grenadines Bahrain Philippines Argentina Croatia Iceland Netherlands Sweden Bangladesh R.of Moldova Australia Cyprus Ireland New Zealand Switzerland Cameroon Russian Fed. Austria D.R.of Congo Italy Niger Tajikistan Cape Verde Sao Tome & Barbados Dominican R. Japan Nigeria Tanzania Chad Principe Belgium Denmark Jordan Norway Trinidad & Chile Seychelles Belize Djibouti Kenya Panama Tobago Comoros Solomon Is. Benin Dominica Latvia Paraguay Uganda Cote d’Ivoire St. Lucia Bolivia East Timor(a Lesotho Peru U. Kingdom Czech R. Sudan Bosnia & Ecuador Liberia Poland Uruguay Egypt Syria Herzegovina Estonia Liechtenstein Portugal Venezuela Eritrea Thailand Botswana Fiji Lithuania R.of Korea Serbia Guinea-Bissau Ukraine Brazil Finland Luxembourg Romania Zambia Haiti UAE Bulgaria France Macedonia, FYR Samoa Iran USA Burkina Faso Gabon Mali San Marino Israel Uzbekistan Burundi Gambia Malawi Senegal Jamaica Yemen CambodiaThe Monitor No. 35Georgia / Nov. 2007 - April 2008Malta Sierra Leone Kuwait Zimbabwe regionalhighlights Africa Latin America/Caribbean r eg ional Cameroon—To maintain pres- Grenada—During an advocacy mission in September, the CICC sure on Cameroon to ratify the Secretariat met with government officials, members of parliament, Rome Statute, civil society orga- national NGOs and the media to drum up support for the ICC and nizations in the country formally to encourage Grenada’s government to accede to the Rome Statute. launched the Cameroon Nation- The government expressed support for the statute but could not yet al Coalition for the ICC in Sep- confirm that it would accede without delay. tember. The CICC Secretariat Mexico—Mexico deposited its instrument of ratification to the conducted an advocacy mission Members of the Central African National APIC on 26 September 2007. there that month and met with Coalition for the ICC with Richard Nsanza- 23 high-level government officials baganwa, CICC outreach liason for Africa. Nicaragua—The CICC Secretariat, regional organization DPLF who said that ratification would Credit: CICC and national member CENIDH conducted a high-level advocacy likely move forward quickly. mission to Nicaragua to encourage the government to accede to the Rome Statute. National civil society organizations were encouraged Central African Republic (CAR)—The Archbishop of Bangui, to join the CICC’s campaign for ratification in Nicaragua. Monsignor Paulin Pomodimo, has pledged to support civil society organizations in their ICC awareness activities by allowing them to Honduras—In a joint advocacy mission, CICC, DPLF and national air information about the work of the Court over Catholic Church- member CIPRODEH, met with key governmental authorities at the owned radio waves accessible to local populations. Honduras Supreme Court of Justice tasked with drafting the new Criminal Code. The delegation met with various congressional com- Rwanda—In mid-September, during a conference called “Un- mission leaders as well as with the vice-president of Congress and the derstanding International Criminal Justice and the International attorney general’s chambers and highlighted the need to implement Criminal Court,” a representative of the Rwandan attorney general the Rome Statute’s crimes as well as cooperation provisions. praised the ICC for its role in preventing crimes and contributing to peace and expressed hope that the Republic of Rwanda would accede St. Lucia—With a view toward encouraging the government to to the Rome Statute in the near future. commit itself to ratification, NGO member CAFRA St. Lucia organized a roundtable on the ICC for government officials, journalists Madagascar—Following consistent advocacy from CICC na- and civil society groups. tional members, particularly the Christian Action against Torture (ACAT), the government of Madagascar has pushed through a new constitution with a specific provision authorizing the ratification of the Rome Statute.

Asia/Pacific Australia—During a visit by Prosecutor Luis Moreno-Ocampo, Australia hosted a meeting to promote ratification and implementa- In 2006, CICC member Humanas partnered with Oxfam to launch a campaign pressuring tion of the Rome Statute in Asia and the Pacific. The event brought Chile to join the ICC. The campaign features print ads with a wordplay in Spanish that together some 65 participants, including senior government officials translates as “Be firm so they will sign. The world is waiting. “ Chile is the only Spanish- from 16 countries ranging from the Cook Islands to Vietnam. speaking country in South America that is not party to the Court.

Europe Middle East/North Africa Lebanon—Justice Without Frontiers and the Beirut Bar Association Moldova—On 3 October 2007, the Moldovan Constitutional hosted an ICC seminar in Beirut in September whose participants in- Court ruled that the Rome Statute is compatible with the national cluded lawyers, jurists, NGO members and human rights activists. constitution, signifying a possible new impetus to the ICC ratification process in Moldova. Cairo—The Cairo Declaration for Peace in Darfur, adopted by some 31 Arab civil society organizations at a workshop held in Cairo Portugal—On 3 October 2007, Portugal deposited its instrument in May 2007, calls for a unified and consistent Arab position regard- of ratification for the Agreement on the Privileges and Immunities ing Darfur. It also recommends the launch of solidarity campaigns of the ICC (APIC), bringing the total number of ratifications/ in various Arab countries as well as cooperation between Arab and accessions to 52. Sudanese NGOs, including field visits to Darfur. EU & Central Asia—An EU strategy for a new partnership with Egypt/Sudan—The Cairo Institute for Human Rights Studies held Central Asia was adopted at the European Council in Brussels in a training workshop on the ICC and justice in Sudan in August for June 2007, providing a framework for EU relations with Central Asia Sudanese lawyers and civil society organizations. The trainers were in the areas of human rights, rule of law, good governance, democracy experts from the OTP and the Justice and Reconciliation Center in and, most notably, cooperation with the Central Asian Republics The Hague. Participants drafted recommendations in support of the toward achieving ratification of the Rome Statute of the ICC. ICC’s work in Sudan.

The Monitor No. 35 / Nov. 2007 - April 2008 Coalition for the International Criminal Court Web : http://www.iccnow.org c/o WFM, 708 3rd Ave, 24 Fl Anna Paulownastraat 103, 2518BC New York, NY 10017 USA The Hague, The Netherlands Phone: + 1 212-687-2863 Phone: +31-70-363-4484 Fax: +1 212-599-1332 Fax: +31-70-364-0259 Email: [email protected] Email: [email protected]

Is the U.S. Ready to Assist on Darfur? By Tom Moran and Raj Purohit

such as intelligence and lo- as we continue to advocate for a more gistical assistance. constructive U.S.-ICC relationship. Recent statements by U.S. of- At the same time, over the last five years ficials mark a clear divergence 60 to 70 percent of Americans have

u s-icc between U.S. practice and consistently supported the ICC, with a policy toward the Court. In sharp spike following the Darfur referral 2005, the Bush administra- by the Security Council. A recent poll by tion did not veto UN Securi- the University of Maryland’s Program on ty Council Resolution 1593, International Policy Attitudes (PIPA) which referred the Darfur found that, across political party and 24 situation to the ICC. Fol- religious lines, a firm majority of Ameri- lowing the vote, the U.S. am- cans support a cooperative U.S. global bassador said the resolution engagement, working through multilat- On the eve of U.S. President George Bush’s address to the UN General Assembly, more than 30,000 established an accountability eral channels in tandem with interna- protested at a September 2006 rally for Darfur in New York. Credit: American Jewish World mechanism for the perpetra- tional institutions and legal frameworks. Service/R. Clark, courtesy www.ajws.org tors of crimes and atrocities Religious groups, including the National n June 2005, U.S. President George in Darfur. In 2007, John B. Association of Evangelicals and the Re- W. Bush officially declared the situ- Bellinger, legal adviser to the U.S. secre- formed Judaism Movement, have also ation in Darfur to be genocide, and tary of state, said that while Washington supported the ICC in relation to Darfur. I is not necessarily “warming” to the Court, As John Pendergrast, co-founder of the the U.S. government has repeatedly called on the government of Sudan to it does share common “goals of account- ENOUGH Campaign and a senior ad- cooperate fully with the Darfur inves- ability in crimes against humanity, par- viser to the International Crisis Group, tigation launched by the International ticularly in Darfur”—and that “within says, “Faith-based groups have put Dar- Criminal Court (ICC). But does this the bounds of U.S. law, there would be fur on the political map through their necessarily mark a turning point in the authority to provide assistance to the unyielding demand for U.S. action com- relationship between the United States ICC.” These statements echo Deputy mensurate with its rhetoric.” Secretary of State Robert Zoellick’s as- This public support highlights the dis- sertion that “because we don’t want to see connect between the opinions of every- impunity for any of these actors, we stand …over the last five years, 60 to 70 percent day Americans and their elected officials ready to assist.” These statements suggest in Congress. While there is a perceptible of Americans have consistently supported that the United States is now prepared to softening of the rhetoric in Washington, cautiously engage with the Court when the ICC, with a sharp spike following the there has yet to be a concrete offer of sup- it serves American national interests in a port. However, evidence that the ground- Darfur referral by the Security Council. particular situation. work is being laid in Washington contin- Another positive development is that ues to emerge. Ultimately, this softening the anti-ICC Nethercutt provision lan- may demonstrate a shift in practice away and the ICC? The Bush administration guage has been struck from the U.S. from the continuing U.S. policy of “iso- has in the past sought to distance itself Senate version of the Fiscal Year 2008 lating and ignoring” the Court, to bor- from the Court and actively prevent Foreign Operations Appropriations Bill, row the words of former U.S. permanent ICC jurisdiction over Americans. Even although it remains in the House bill. representative to the UN and anti-ICC now, when the Bush administration’s Analysts predict that the current legisla- crusader John Bolton.  stated objectives regarding Darfur co- tive session may result in a bill free of any incide with those of the ICC and it has Nethercutt language on suspending aid Tom Moran is research and communica- formally established a channel for as- to countries that have ratified the ICC tions coordinator at Citizens for Global sisting the Court, it is unclear to what treaty but have not signed a bilateral ICC Solutions and coordinator of the Washing- extent the United States could give its immunity agreement with the United ton Working Group on the International tacit support to investigations; pressure States. No matter the final outcome, Criminal Court (WICC). Sudan to cooperate with the Court; this is a sign of good leadership from the Raj Purohit is the interim director and se- and possibly provide tangible support Senate and is a promising development nior fellow at Citizens for Global Solutions.