Cover Photograph: “ICC launches commemorations for 17 July – International Criminal Justice Day.” Image is used in accordance with the ICC-CPI’s Copyright policy. © ICC-CPI | Image retrieved from: http://www.flickr.com/photos/icc-cpi/ ii The International Criminal Court Confronting challenges on the path to justice Henry M. Jackson School of International Studies Task Force Report 2013 Advisor Stefanie Frease Evaluator Dr. Kelly Askin, Ph. D Task Force Members Eslam Al-Fatatry Ally Bray Julie Butters Eunbi Cho Allie Ferguson Ryan Gilchrist Katie Henshaw Lummy Lin Madison Miller Erika Murdoch Heather Nunan Emma Nyland Lily Shay Editor/Coordinator Rebecca Lee Coordinator/Editor Thea Marriott Graphics Regina Widjaya iii Our Task Force would like to give special recognition to our tireless leader, Stefanie Frease. For your hours of hard work, availability, patience and good humor; for the stories you shared to make the Court come alive, and for helping us “sort the wheat from the chaff”—we thank you. We would also like to thank all those who contributed to the creation of this report, especially our evaluator, Dr. Kelly Askin. The time and effort you have given us is truly appreciated. TABLE OF CONTENTS Title Page ......................................................................................................................................... i Task Force Members ...................................................................................................................... iii Acknowledgements ........................................................................................................................ iv Table of Contents .......................................................................................................................... vii Acronyms ....................................................................................................................................... ix Executive Summary ........................................................................................................................ 1 Introduction ..................................................................................................................................... 5 Situation Selection Chapter 1 – Internal Factors Affecting Situation Selection .......................................................... 13 Ally Bray and Eslam Al-Fatatry Chapter 2 – External Factors Affecting Situation Selection: Political influences ........................ 29 Julie Butters Investigations Chapter 3 – Issues with Investigations .......................................................................................... 55 Ryan Gilchrist Chapter 4 – Office of the Prosecutor: Charging strategy .............................................................. 69 Erika Murdoch Chapter 5 – Investigating Gender Crimes ..................................................................................... 79 Madison Miller Victims’ Voices Chapter 6 – Victim Participation in the Judicial Process .............................................................. 99 Heather Nunan Chapter 7 – From the Courtroom to the Field: ICC outreach strategies ..................................... 109 Allie Ferguson Chapter 8 – Transitional Justice for the Future ........................................................................... 119 Katerina Henshaw and Eunbi Cho Critical Relationships Chapter 9 – Internal Relationships of the ICC ............................................................................ 143 Emma Nyland Chapter 10 – The ASP and State Cooperation ............................................................................ 153 Lummy Lin Chapter 11 – Relations with the United States ........................................................................... 163 Lily Shay Conclusion .................................................................................................................................. 187 Appendix – Graphics .................................................................................................................. 193 Regina Widjaya vii x ACRONYMS AfCHPR African Court on Human and People's Rights ASP Assembly of States Parties ASPA American Service-members' Protection Act AU African Union BIAs Bilateral Immunity Agreements CAR Central African Republic CICC Coalition for the International Criminal Court CLRs Common Legal Representatives CMN Critical Matrix Network DRC Democratic Republic of the Congo ESF Economic Support Funds ExCom Executive Committee FNI Front for National Integration ICC Act International Criminal Court Act ICC or “the Court” International Criminal Court ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IMET International Military Education and Training IMT International Military Tribunal JCCD Jurisdiction, Cooperation, and Complementarity Division JLOS Justice, Law and Order Sector JPL Justice and Peace Law LRA Lord's Resistance Army ix LTP Legal Tools Project NATO North Atlantic Treaty Organization NGO Non-governmental Organization NTC National Transitional Council OPCV Office of the Public Counsel for Victims OTP or “the Office” Office of the Prosecutor PIDS Public Information and Documentation Section PTC Pre-Trial Chamber PTC-I Pre-Trial Chamber-I RPE Rules of Procedure and Evidence SCSL Special Court for Sierra Leone SIDA Swedish International Development Agency SWGCA Special Working Group on the Crime of Aggression TC-1 Trial Chamber-1 TFV Trust Fund for Victims UK United Kingdom UN United Nations UNSC United Nations Security Council UPC Union de Patriotes Conglaise US United States of America VPRS Victim Participation and Reparations Section VPRU Victim Participation and Reparations Unit WCD War Crimes Division x EXECUTIVE SUMMARY Rebecca Lee Since the Rome Statute entered into force in 2002, the International Criminal Court (ICC or the Court) has encountered many challenges, undermining its legitimacy and credibility in the international community. This report argues that if the first ten years of the ICC’s existence are any indication of its potential in the long run, these challenges must be confronted over the next few decisive years. This is imperative to ensuring the Court reaches its full potential to bring justice to the most serious crimes of international concern under its jurisdiction. Currently, a lack of efficiency and effectiveness in producing results has led to a serious decline in its perception of legitimacy with the international community. To date, the ICC has produced only two verdicts: one conviction and one acquittal. With this poor track record, comprehensive improvements are essential for improving the Court’s capacity to prosecute crimes that threaten international peace and security. Each chapter of this report identifies key factors which are crucial to ensuring justice is served and the Court’s mandate is fulfilled. Section one explains the internal and external factors that affect selecting situations (the distinction between “situation” and “case” will be defined in the introduction). Problems in selecting situations stem from complications inherent to complementarity and determining gravity. To further complicate this issue, politics and a supposed “African bias” have inhibited international support for the Court. Section two identifies issues in the investigation strategy of the Office of the Prosecutor (OTP or the Office), particularly its charging strategy and the apparent neglect of gender crimes. It also addresses a structural problem concerning varying standards of proof. Section three examines the role of victims in the Court, including their participation as victims in the judicial process, efforts to conduct outreach to “information poor” communities, and reparations provided through the Trust Fund for Victims. Section four concludes with the inherent issues that come from the Court’s critical internal and external relationships. This includes interactions between the four organs of the Court, which are vital to its efficiency and effectiveness. Likewise, integral to its function as a court of last resort, cooperation with its states parties and non-states parties is essential for investigating, charging, and enforcing arrests of individuals under the Court’s jurisdiction. This report finds that the ICC is at a decisive period in its path to establishing a global presence. It is therefore crucial that it produce more substantial results to ensure its longevity as a global presence aimed at deterring mass atrocities and maintaining international peace and security. The failures experienced in its formative years may be identified as growing pains of a young institution, but the ICC cannot afford to continue losing credibility. Already, it has faced resistance from many states—in particular several within the African Union—while many states parties are either delayed in meeting or do not fulfill their financial obligations. The global recession is a factor, but more importantly, many states parties have lost faith in the Court’s capacity to utilize its resources effectively. Moreover, the Court’s unique mandate to provide 2 INTERNATIONAL CRIMINAL COURT: CONFRONT CHALLENGES ON THE PATH TO JUSTICE restorative justice obliges it to define and establish an adequate support system for victims. Unlike former and current international tribunals, the ICC is permanent, and has the potential to be a beacon for victims of the horrific crimes outlined in its Statute. To