Open Society Justice Initiative Highlighting Complementarity and Outreach at ICC Review

The Kampala Review Conference is a historic opportunity for supporters of the International Criminal Court (ICC) to celebrate the institution's achievements and develop effective strategies to address new and ongoing challenges. The gathering is set to take place from May 31 to June 11, 2010.

The Open Society Justice Initiative is actively working to support the ICC through its participation in the Review Conference in four key areas:

Complementarity

Although states have the principal responsibility to pursue perpetrators of mass violence, few have done so. The concept of "complementarity," which underlies the Rome Statute, permits the Court to assert its jurisdiction only when national authorities are unable or unwilling to do so. Yet in practice, political will and judicial capacity are too often lacking among domestic actors.

The Court's major international donors—many of whom are members of its governing Assembly of States Parties—have not integrated complementarity into their funding priorities. As a result, even as substantial sums are invested on projects to promote economic development and the rule of law in countries where the Court is engaged, these projects fail to target the basic prerequisites for successful war crimes prosecutions: skilled investigators, sound witness protection systems, and technology for managing sensitive information. As a result, the Court is being saddled with sole responsibility for ending impunity—a burden no single institution can possibly bear.

Complementarity will be addressed during the stocktaking session sponsored by South Africa and Denmark on Thursday June 3 from 10:00a.m.-1:00p.m.

Like the session's sponsors, the Justice Initiative endorses efforts to build complementarity in national justice systems, particularly in countries being investigated or under preliminary analysis by the ICC. The Justice Initiative calls on states parties to assume their proper role as key pillars of the Rome Statute system, including by undertaking a more systematic and thoughtful approach to rule of law programming.

In Kampala, the Assembly of States Parties can play a unique role in addressing the deficit of complementarity-specific programming by creating a special working group to capitalize on synergies between rule of law promotion and the Rome Statute system. This working group—which should include non-states parties and rule of law experts—would provide intellectual leadership for donor and recipient states. In particular, it could develop a general framework for bolstering domestic capacity to investigate, prosecute, and try Rome Statute crimes, which could then be adjusted for different local contexts.

The Justice Initiative will formally present case studies and recommendations on complementarity at a Coalition for the International Criminal Court (CICC) side event in Kampala on Wednesday, June 2 from 1:20-3:00p.m. Its research on Uganda, Kenya and the Democratic Republic of Congo demonstrates that complementarity-specific initiatives have not been systematically prioritized or emphasized in donor strategies or domestic law reform.

After the Review Conference, a paper setting out the findings, recommendations, and responses to the stocktaking on complementarity will be circulated to states parties and available on the Justice Initiative's website at www.justiceinitiative.org.

Outreach to Victims and Affected Communities

Surveys have revealed that people in countries suffering mass violence have little knowledge of the Court and its role, unrealistically high expectations of its potential impact, and low levels of trust and goodwill toward its staff. Ultimately, this weakens the institution's legitimacy and limits its impact in the countries where its work matters most.

The Open Society Justice Initiative believes that dialogue between the ICC and victims and affected communities is fundamental to the court's mission, and will be essential to its success. Outreach enables victims to access justice and makes the Court's work meaningful on the ground. It ensures that people have the opportunity to communicate their needs, participate in the trial process, and receive reparations for harm suffered. Outreach also informs affected communities about the ICC's work and provides crucial feedback to court officials as a basis for policy development and practice.

The Justice Initiative, together with the Human Rights Center at the University of California at Berkeley, is hosting a side-panel on Tuesday, June 1 from 6:30-8:00p.m. to highlight innovative approaches to outreach and ideas for overcoming common challenges.

The Justice Initiative is also working with Eric Stover, faculty director of U.C. Berkeley's Human Rights Center and an Open Society Institute Global Fellow for 2010, to research outreach efforts and victim participation in international criminal tribunals. Stover is the rapporteur for the official panel on victims and affected communities sponsored by Chile and Finland, scheduled for Wednesday, June 2 from 10:00a.m.-1:00p.m.

The Role of Nongovernment Organizations in the ICC's Development

Civil society has played a critical role in the establishment and development of the ICC.  Kampala provides a useful moment to reflect on the evolution of the various roles NGOs have played in relation to the ICC, particularly in situation countries. This should include identifying lessons learned by NGOs, Court officials, and states over the past 12 years. 

Together with the International Refugee Rights Initiative (IRRI), the Justice Initiative will host a panel on the relationship between the ICC and NGOs as a side-event in Kampala on Friday, June 4 from 6:30-8:00p.m.

The Crime of Aggression

As strong supporters of the Court, we are concerned about codifying the crime of aggression in Kampala. The issues surrounding ICC jurisdiction over the crime of aggression are complex and are ones on which Court supporters can and do reasonably disagree. Many states have undertaken extended discussions in an attempt to forge consensus around this crime. Nonetheless, the current amendment proposal risks politicizing and overburdening the ICC, and undermining the integrity of the Rome Statute.  

For both practical and principled reasons, we have urged states not to add aggression to the Court's docket at this early stage in the court's evolution, specifically because:

• Aggression—a crime based on acts committed against a state—raises fundamentally political considerations about a state's initial decision to resort to the use of force. Amending the Rome Statute now to grant the Court jurisdiction over aggression will exacerbate the challenges the ICC already faces in fending off attacks about its perceived politicization.
• Asking the ICC to take on another category of crime at present risks overburdening the Court when it is still striving to prosecute and try those responsible for current crimes. Much work is needed to further improve the operation of the Rome Statute system in respect of cooperation, complementarity, the impact on victims and affected communities, and questions of peace and justice. Focusing attention on these challenges in Kampala—and deferring a decision on aggression—is the most effective way to support the ICC to combat impunity for the most heinous international crimes at this time.   
• Given the wide range of perspectives that currently exist on the aggression amendment, pushing it to a vote in Kampala risks undermining the cohesiveness of states parties that has been so essential to the Court's establishment and mission.

The Kampala Review Conference is not the last opportunity to address the crime of aggression. Under Article 121 of the Rome Statute, an amendment can be considered at any time in the future by the Assembly of States Parties directly or by another Review Conference. Taking more time to strengthen the Court, to consider this matter further, and to achieve broader agreement on the outstanding issues will benefit the ICC in the long-term. We encourage states to continue discussions beyond Kampala.