FIDH Position Paper, Ninth Session of the ICC Assembly of States Parties, New York, 6-10 December 2010
At the eve of the opening of the Ninth Session of the Assembly of States Parties (ASP) to the Statute of the International Criminal Court (ICC), FIDH is publishing its position paper putting forward specific recommendations to the ASP.
Significant developments have taken place since the Eighth session of the Assembly held towards the end of 2009. Throughout 2010, the Court continued to operate in four situations, namely: Uganda, the Democratic Republic of Congo ("DRC"), the Central African Republic ("CAR") and Darfur, Sudan. In March 2010, a fifth investigation was opened into the situation in Kenya. The Office of the Prosecutor has also continued to conduct preliminary analyses into various situations with a view to possibly opening further investigations.
Situations under preliminary examination include: Afghanistan, Colombia, Côte d'Ivoire, Georgia, Guinea, Honduras, Nigeria and the Palestinian Territories.
The Court issued one arrest warrant for Callixte Mbarushimana for crimes committed in the Kivus, DRC and two summons to appear for Abdallh Banda Abaker Nourain ("Banda") and Saleh Mohammed Jerbo Jamus ("Jerbo"), who are suspected of war crimes committed in Darfur. Callixte Mbarushimana was arrested in France on 11 October 2010 and is likely to be transferred to The Hague in the weeks following the Ninth session of the Assembly. Banda and Jerbo appeared voluntarily before the Court on 17 June 2010.
The first two ICC trials against Thomas Lubanga (first case) and Germain Katanga and Mathieu Ngudjolo (sencond case), which opened in 2009, have been ongoing. The third ICC trial, for the case against Jean-Pierre Bemba, opened 22 November 2010. Additionally, a confirmation of charges hearing for Banda and Jerbo is due to start on 8 December 2010. As a consequence, there is a prospect that the ICC will hold at least three trials in 2011.
Interesting developments have taken place in the field of victim participation. Victims have continued to participate in the two ongoing trials. Over 1000 victims could participate in the Bemba case.1 Moreover, for the first time, victims participated in the proceedings in relation to the request for authorisation of the Pre-Trial Chamber to open an investigation, in accordance with Article 15 of the Statute (Kenya situation). Important measures have been taken by the Court to simplify the application process, facilitate legal representation of large numbers of victims and endeavour to make victim participation as meaningful as possible.
A landmark event of the past year was the Review Conference of the ICC Statute, which took place in Kampala, Uganda, from 31 May to 11 June 2010. The Review Conference made important decisions with respect to key amendments to the Rome Statute. Significantly, it also provided a space to "take stock" of achievements and shortcomings in the implementation of the Rome Statute system with respect to four relevant issues: the impact of the Rome Statute system on victims and affected communities, complementarity, cooperation, and peace and justice. Discussions in Kampala helped identify a number of significant positive developments, while also pointing to areas where further work needs to be done. In this regard, it is crucial that the Assembly and the Court ensure adequate follow-up of the findings made.
Throughout 2010, the Court has continued to face pressing challenges on the cooperation front. The African Union ("AU") has once again disregarded the authority of the Court's decisions. It has also refused to consider the opening of a Liaison Office at the AU. In addition, for the first time since the issuance of the arrest warrant against him, Omar Al-Bashir visited States Parties,
Chad and Kenya. Both countries have seriously failed to live up to their obligations by arresting and surrendering him to the Court.
Organisation of domestic proceedings for crimes under ICC jurisdiction, under the principle of complementarity, continues to be a challenge. FIDH has welcomed the OTP policy of positive complementarity. Our organisation endeavours to contribute to it through its various programmes. FIDH submits that further efforts must be deployed on this front to achieve prosecution of Rome Statute crimes at the domestic level.
This is the framework in which the Ninth session of the Assembly will take place. Issues before it include the follow-up of the Review Conference, the approval of the budget for 2011, as well as a range of issues related to the oversight role of the ASP.
This paper focuses on a limited number of areas, on which FIDH has particular expertise and would like to make recommendations upon.
FIDH has contributed actively to the papers developed by the Coalition for the ICC (CICC) Thematic Teams and subscribes to their content and recommendations.