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I. Facing Up to External Challenges

As the ICC’s operations increase, its mandate faces new challenges. This is particularly so where the court acts in its unprecedented role as a permanent tribunal tasked with investigation of crimes during ongoing hostilities. The court’s mandate, it is claimed, risks conflict with other important diplomatic objectives, including peacekeeping and peace negotiations.

Genuine contradiction between the work of the court and these other objectives is likely to be rare. For example, many have characterized the question of whether to defer ICC proceedings against President al-Bashir of Sudan—a matter discussed in more detail below—as a “peace versus justice” issue. To do so would be, in our view, a clear distortion of the facts on the ground: peace efforts have been stalled in Darfur since October 2007 for reasons unrelated to the ICC and the requested warrant for President al-Bashir. Peace and justice are not contradictory but complementary objectives that should be allowed to proceed in parallel.

Claims of a contradiction between peace and justice are being used by some as a convenient weapon against the court for those who would see justice marginalized and their own impunity entrenched. The ICC will continue to face unprincipled challenges to its mandate driven by opposition to accountability and the court. Such challenges may appear under different rhetorical disguises, but will have the common aim of undermining the strong diplomatic and political support that the ICC needs to succeed.

The court and its supporters, including its states parties, will need to answer such challenges convincingly. We identify two of the most pressing challenges facing the court today: the prospect of an article 16 deferral in the Darfur situation, and particularly in the context of the debate over that deferral, the accusation by some that the ICC is anti-African. In addition, we address here an enduring challenge for the court made only more difficult in the absence of adequate diplomatic and political support: the continuing need for increased international cooperation toward arrests.

A. Resisting political interference in the court’s independence: Article 16 and Darfur

On July 14, 2008, the ICC prosecutor requested an arrest warrant for Sudan President Omar al-Bashir on charges of genocide, crimes against humanity, and war crimes for being responsible for the abusive counterinsurgency campaign in Sudan’s Darfur region.¹ As documented in our December 2005 report, “Entrenching Impunity: Government Responsibility for International Crimes in Darfur,”² Human Rights Watch found that the highest levels of the Sudanese leadership, including President al-Bashir, were responsible for the creation and coordination of the Sudanese government’s counterinsurgency policy that deliberately and systematically targeted civilians in Darfur in violation of international law.

The announcement by the ICC prosecutor triggered a wide-ranging diplomatic campaign by the Sudanese authorities to secure a deferral from the United Nations (UN) Security Council of the proceedings under article 16 of the Rome Statute in the interests of “international peace and security.” Sudan has subsequently taken some steps required by international law to create the appearance of attempting to hold accountable some of the alleged perpetrators of serious crimes in Darfur.

In August 2008 Sudan appointed a special prosecutor and legal advisers in each of Darfur’s three states to investigate crimes that occurred from 2003 onward. In October, Sudanese justice officials announced that the new special prosecutor had completed an investigation into allegations against Ali Kosheib, a militia commander who is wanted by the ICC for war crimes and crimes against humanity, but they have not indicated what steps will be taken next in his case. There are conflicting reports as to whether Kosheib is in custody, and Sudanese authorities also have not publicly specified which charges they are investigating, although a justice official said that the investigation relates to “killing and looting” by Kosheib and two others. Kosheib was previously in custody in Sudan but was released for lack of evidence.³

While the Sudanese government has repeatedly said that its courts can prosecute those responsible for crimes in Darfur, so far no one has been charged for a single atrocity committed. In addition to the arrest of Kosheib, past attempts by Khartoum to thwart ICC proceedings have included the establishment of the Special Criminal Courts on the Events in Darfur (SCCED), just one day after the prosecutor announced the opening of investigations in Darfur. While these courts were designed to demonstrate the government’s ability to handle prosecutions domestically, they have tried only 13 cases of ordinary crimes, such as possession of stolen goods, theft, or individual murders unrelated to larger attacks.

Moreover, even if the Sudanese authorities were serious about prosecuting Kosheib and others, a number of legal obstacles, which the government has done little to address, make it very difficult in Sudan for there to be accountability for the grave human rights violations in Darfur. These obstacles include the absence of provisions in the criminal law making crimes against humanity an offense, or that provide for command responsibility;⁴ broad immunity provisions for members of the police and armed forces; and significant barriers to prosecution of rape and sexual violence (including the threat of victims being charged with adultery).

In light of this poor track record on accountability, Human Rights Watch believes that the purported investigations are part of the larger attempt by Khartoum to generate support for an article 16 deferral. By packaging together a series of apparent concessions, Khartoum apparently hopes that its policies will seem to have changed, and hence an interruption of the legal proceedings against President al-Bashir is an appropriate quid pro quo. But Khartoum has time and again made commitments, including to the Security Council, that have proved to be worthless.

Although the African Union and the Organization of The Islamic Conference initially rallied to Sudan’s side, asking the Security Council to grant an article 16 deferral of ICC proceedings for 12 months, no motion for a deferral has yet been tabled at the Security Council. And efforts by Sudan to use the general debate at the UN General Assembly to marshal support for a deferral were unsuccessful. Apart from Sudan, support for a deferral or criticism of the prosecutor’s request was mentioned explicitly only in statements by a handful of countries and in the African Union statement. Some countries that were expected to raise the issue did not.

Nonetheless, we anticipate that the issue of a deferral may be raised in the Security Council in the coming months. The stakes are extremely high for the victims of atrocities in Darfur, where Sudanese authorities continue to carry out attacks on civilians.⁵ They are equally high for the ICC’s global efforts to curtail impunity for the most serious crimes: although an article 16 deferral has never been granted, the provision has already been mentioned in connection with three of the four ICC situations under investigation (Darfur, Uganda, and most recently the Central African Republic⁶). Suspending ongoing judicial activity could set a very dangerous precedent with implications that will reach far beyond Darfur. If it bartered away accountability for the most serious crimes under international law, the Security Council would give encouragement to all those alleged to be responsible for major atrocities to combine threats and negotiation, as Khartoum is now attempting to do, to void the rule of law. It also would be a renunciation by the Security Council—which itself referred the situation in Darfur to the ICC prosecutor—of its own commitment to bring justice to Darfur.

At a time when the independence and integrity of the court is at risk, we believe that it is imperative for states parties to speak forcefully against impunity and on behalf of the ICC’s mission. States parties should take the opportunity presented by the general debate during the ASP to articulate strong support for the ICC. In their statements during the general debate, states parties should:

Confirm that justice is a necessary component of lasting peace and an important objective in its own right;

Affirm the importance of maintaining the ICC’s independence from political interference; and

Convey commitment to ending impunity for the most serious international crimes, including those that are ongoing in Darfur.

We also encourage states parties’ delegates to

• Attend a discussion on cooperation and article 16 that will be held as a side meeting during the ASP.

B. A court for Africa

Related to Sudan’s efforts to exchange impunity for some political concessions, some—including those in key positions of influence within Africa—have accused the court of exhibiting an anti-African bias and imposing a European conception of justice that has no connection to African experience. For evidence, critics cite what they consider the court’s exclusive focus on Africa, that is, that its active investigations all concern African countries. While this charge has been leveled in the context of a possible article 16 deferral in the Darfur situation—providing leverage to Sudan in its targeting of African members of the UN Security Council for support—it has also been conflated with and echoes a similar drive against the use of universal jurisdiction to prosecute Africans.⁷

The ICC is a court for Africa. Certainly, it is not a court exclusively for Africa, but it does respond to a genuine hunger for justice on a continent that has experienced many of the world’s worst atrocities since the 2002 entry into force of the ICC statute. Chronically weak national judicial systems across Africa are often unable to meet the need for accountability.

Indeed, African states played a key role in making this court possible. The unexpectedly swift entry into force of the Rome Statute was driven by ratification among African countries: with 30 states parties, Africa has more members of the ICC than any other region.⁸ Three of the four situations under investigation were voluntarily referred by African governments. And national coalitions for the ICC are active in 21 African countries, including, in many places, to advocate the adoption of domestic ICC implementing legislation that could eventually promote accountability and justice initiatives at the national level.⁹

If the court were unwanted and unwelcome in Africa, African victims and witnesses would not be stepping forward, as so many have, often at personal risk, to participate in court proceedings and to provide testimony vital to prosecution and conviction.

Accusations of bias on the part of the ICC have a superficial appeal, in part because they are rooted in some legitimate communication shortcomings on the part of the court. Although the court has several situations under analysis in jurisdictions outside of Africa—including Georgia, Colombia, and Afghanistan—until recently it had been slow to explain this fact, let alone its process of analysis, in a manner that would convey its serious focus on non-African victims and perpetrators. Limited knowledge and a lack of clarity about the jurisdiction of the court and the process by which it selects and prioritizes situations—including, for example, that restrictions on its temporal jurisdiction exclude many non-African situations from its remit—allow perceptions of bias or unfair targeting of Africans to go unchecked. More generally, the court has suffered from insufficient resources and poor strategy in its public information efforts in Africa beyond individual situation countries.

The court and its supporters must counter accusations that the ICC is anti-African with concrete action designed to foster broader understanding of the court—among government officials, civil society, the media, and the general population—and to amplify the voices of African victims and the many African supporters of the court.

We welcome preliminary discussion among ICC organs on a strategy for Africa, which could include establishing a more permanent presence at the African Union and increasing public information campaigns to raise awareness on the continent of the court outside the situation countries. This is an important and timely initiative, and it underscores the necessity of supporting extended outreach and communications efforts. To facilitate ongoing discussion, in the omnibus resolution of this session, the ASP should:

• Invite the court to include relevant public information aspects of its strategy for Africa in its “Integrated Strategy for External Relations, Public Information, and Outreach;”¹⁰ and

• Provide a mandate for a facilitator from the New York Working Group on the court’s strategy for Africa to facilitate discussion and future plans. Appointment of a facilitator from the New York Working Group will ensure the fullest possible consultation among African states parties in light of the greater representation of those countries in New York.

In addition, in their statements during the ASP general debate, states parties should:

• Underscore their shared commitment to international justice.

Beyond the ASP, states parties should consistently raise support for the ICC in contacts with and among African governments, including through specific initiatives like the European Union (EU)-Africa Partnership and multilateral associations such as L’Organisation internationale de la Francophonie, the Commonwealth, and the Organisation of The Islamic Conference. The creation of a Friends of the ICC group in Addis Ababa analogous to those that already exist in New York and The Hague would create another forum for supportive exchange and discussion on ICC issues. In addition, we urge states parties that are also members of the African Union to work as swiftly as possible toward the conclusion of a cooperation agreement between that body and the ICC.

C. Practical assistance and political support for arrests

Without its own police unit to execute its arrest warrants, the ICC remains wholly dependent on the assistance of governments—sometimes regimes responsible for the very crimes at issue—to apprehend accused persons. While there has been some cooperation on arrest—in 2008, for example, Belgian authorities arrested Jean-Pierre Bemba on the basis of an ICC arrest warrant and transferred him to ICC custody, and the DRC authorities have continually provided cooperation toward the arrest of those individuals under warrant of arrest in the DRC situation—overall the court currently faces a troubling position with respect to arrest and surrender. To date, most ICC arrest warrants have not been executed and several arrest warrants have been outstanding for years.

In the Darfur situation, President al-Bashir’s overt flaunting of the ICC’s two existing warrants of arrest for Kosheib and State Minister for Humanitarian Affairs Ahmed Haroun was reinforced by Security Council silence in its meetings with members of the Sudanese leadership in 2007. To its credit, on its mission to Sudan this year, the Security Council did raise Khartoum’s repeated obstruction of justice as one of several pressing items, and on June 9, 2008, the Security Council adopted a presidential statement calling on Sudan to cooperate with the court.¹¹ The European Union also adopted language earlier this year indicating an openness to impose targeted sanctions against Sudanese officials for non-cooperation with the court.¹² But there has been little pressure on Sudan with regard to arrests since the prosecutor’s July application for a warrant against President al-Bashir.

Compelling arrest and surrender of individuals by a recalcitrant government is one of the most difficult tasks for the court. It highlights the broader limitations of a still fledgling system of international justice.

Despite the difficulties, experience from the 15 years of international criminal tribunal practice shows that efforts by states to wield their combined political, diplomatic, and economic clout can be decisive for arrest and surrender. At the International Criminal Tribunal for the former Yugoslavia (ICTY), for example, Serbia’s surrender of 20 indicted persons in 2005 and two indictees each in 2007 and 2008 (including Radovan Karadzic) was directly related to diplomatic pressure around negotiations over its prospective accession to the European Union.¹³ In 2006 increasing diplomatic pressure by states, including the United Kingdom and the United States, helped lead to the surrender of former Liberian president Charles Taylor for trial at the Special Court for Sierra Leone.

These examples underscore the value of principled and active use of diplomacy. To this end, states parties should regularly raise arrest and surrender in bilateral contacts with non-cooperative states, in interactions with influential third-party states, in meetings at regional and international intergovernmental organizations, and at ASP sessions. States parties should also be creative in identifying and utilizing relevant political and economic leverage as appropriate, such as sanctions. Such efforts may not lead to immediate action but are crucial to stigmatization and, ultimately, surrender.

The situation in Uganda presents a more complicated picture, where the present difficulty appears to be capacity to execute arrest warrants. The Lord’s Resistance Army has established bases in a remote corner of the DRC and has renewed attacks on civilians, including forced recruitment through abduction (see below).

These circumstances create special challenges for states parties and the court that are likely to repeat themselves in other situations. Where capacity is inadequate, states parties should be willing to share in the burden of executing arrest warrants as a key component of their cooperation obligations. States parties should consider a variety of assistance that they can provide—including the strategic planning for arrests—and could do so through intergovernmental and regional organizations.

We recognize that this goes a step beyond what most states currently understand to be their obligations to the ICC and will require real development and deepening of those obligations. But where a territorial state in which ICC suspects are located is unable to carry out arrests, it cannot simply become no one’s responsibility at all. Instead, responsibility must be shared between states parties.

Particular attention is required to the urgency of executing arrest warrants in the Uganda situation. Between February and May 2008, the Lord’s Resistance Army, three of whose top commanders are under ICC arrest warrant, carried out at least 100 abductions, and perhaps many more, in CAR, DRC, and Southern Sudan, according to credible information obtained by Human Rights Watch from foreign observers and domestic authorities in the region.¹⁴ More recently, there are consistent reports, including from UN sources, that the LRA has attacked villages and abducted people in the Dungu region of DRC, although Human Rights Watch has not conducted a fact-finding mission to verify these reports. The UN Security Council and the European Parliament have called attention to recent attacks.¹⁵

In light of the coordination likely required for successful arrest operations, in statements during the general debate at this ASP session, states parties should:

• Underscore the need for states to cooperate with the ICC, particularly with regard to arrests; and

• Make particular mention of the urgent importance of international and regional action toward the execution of the ICC arrest warrants for the LRA.

We note that a cooperation adviser in charge of arrest has recently begun work in the Office of the Prosecutor (OTP). This is an important step, as it will better equip the OTP to play a coordinating role with states and international and regional organizations on arrest efforts. In this session’s omnibus resolution, the ASP should:

• Acknowledge the creation of this position, welcome the OTP’s initiative in this regard, and pledge the full support and cooperation of states parties with the cooperation adviser in charge of arrests.

Human Rights Watch also joins in the Coalition for the International Criminal Court team paper on cooperation. The paper highlights the important mandate of the focal point on cooperation appointed at the sixth ASP session, Ambassador Yves Haesendonck of Belgium, and notes his work over the past year. Notwithstanding his appointment, it is unclear what concrete steps have been taken by states parties to implement the ASP Bureau report on cooperation issued in 2007.¹⁶ We urge the focal point and states parties to intensify their efforts toward implementation of the report’s recommendations. We also recommend that the focal point work closely with the OTP’s cooperation advisor in charge of arrest to identify where his diplomatic offices could be of particular use.

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