THE FOURTH SESSION OF THE ASSEMBLY OF STATE PARTIES

TO THE ROME STATUE OF THE INTERNATIONAL CRIMINAL COURT

The Hague 28 November – 3 December 2005

Report to WILPF-IEC

by

Martha Jean Baker (UK section) and Lies Jansen (Dutch section)

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1. Introduction and general impression

2. The Assembly, the ICC and the NGO-Coalition

3. Legal matters and impunity

4. Rights of victims and witnesses and the Victims Trust Fund

5. Gender justice

6. The Courts public responsability, communication and outreach

7. Points of attention for IEC and sections

1. Introduction and general impression (Martha)

Last year WILPF once again used its a membership of the NGO Coalition for the Criminal Court (CICC). The WILPF IEC-meeting in September asked Lies Jansen and me to attend the fourth session of the Assembly of State Parties (ASP) in The Hague. We had little time to prepare for the complicated agenda and the relationships in the ‘triangle’ ASP, ICC and CICC. But we both managed, with pleasure.

When I arrived, first thing, I was pleased to see a number of people I knew from the prep-coms I attended for WILPF in 1999 and 2000. This made settling in and understanding the work and the method easier than it would have been if I has no history with the CICC.

The NGOs and many of their representatives were ones I already knew from my previous work with the ICC. Bill Pace was still the head of the CICC but most of the rest of the CICC personnel were new faces for me although I knew many of their names from the email list that keeps members informed of the issues and the work.

Some of the representatives of States Parties were also people I knew or recognised from before, but there were also many new faces for me. This included the entire UK delegation. I found this group to be far less open and accessible than the people I worked with in such harmony before. Many of the people who I had known as delegates to the pre-coms were now staff members of the ICC. This included many individuals who had been particularly receptive to NGO input, people who would show us drafts and propose language we as NGOs would suggest to them. There was one particular delegate, Professor Roger Clark with whom I had worked before, there as an advisor to the Samoan delegation (and formerly at the prep-coms, the representative from Samoa). Clark, originally from New Zealand, is a law professor at Rutgers University in the US and is particularly active in the ICC Working Group on the Crime of Agression which will be discussed below.

This was my first time attending the ASP and I was surprised to see how many important issues were before it and how controversial many seemingly innocent issues became. This was a particularly important moment in the short history and (hopefully) long future of the ICC. There are now live cases before the court, with the first arrest warrants issued. The ASP was preparing for the second triennial election of 6 of the 18 judges which was due and did take place in the resumed meeting in New York in January. The second President and bureau of the ASP was elected and there was a sense of the progress of moving on.

NGOs were offered the opportunity to visit the current premises of the ICC. Lies and I both took advantage of this offer. We were shown the court rooms and the facilities for the press. They are quite high tech and their workings were explained to us. I also would have liked to see the offices that are currently operational, those of the judges, the prosecution and the registrar as well as the facilities to be used for the victims and witnesses.

There are several issues that Lies and I want to look at fair length in the following pages, but I want to take a minute here to talk about one highly contentious issue that would seem innocent on first glance and that is the issue of when and where the ASP would meet in the future. Most developed countries and especially the host country, The Netherlands, felt the ASP should meet in The Hague, the seat of the court. This was especially the case after the Dutch government made a very generous offer to the ASP of land and favourable conditions for a purpose-built permanent home for the court, an offer that was gratefully and enthusiastically accepted. The smaller and less developed countries felt that the ASP should meet at the UN in New York. The reason for this was that they maintain delegations, if only small ones, to the UN and it was costly to send people to The Hague. This surprisingly difficult issue was finally resolved with a typical diplomatic compromise. Some meetings will take place in New York but most will be in The Hague, however a special trust fund was expanded to allow countries to apply for grants to send their delegates to the ASP when it meets in the Netherlands.

2. The Assembly, the ICC and the NGO-Coalition (Lies)

The Assembly is the formal governing body of the ICC, responsible for managerial and administrative matters, like regulations, finances, staffing and housing. The Court is mandated to investigate and try criminal cases against individuals who are seen as responsible for genocide, war crimes and crimes against humanity. At the moment of the ASP meeting there were four cases or situationa before the court: Congo, Uganda, Central African Republic and Sudan. The ASP is not involved in the Courts criminal cases.

For me, this Assembly was my first experience with the world of the ICC. Over two thousand women and men, bulks of paperwork, delay of meetings, political tensions in closed rooms – and visible joy with official delegates and NGO observers participating in the ongoing construction of the Court, seen as a revolutionary development in the field of international law.

The CICC is a world-wide Coalition of more then 2000 NGO-member organisations, most of them human rights organisations with the goal to promote the ICC and to influence their governments on participation and implementations

The goals of the CICC are:

• to activate and support national and local groups,

• to follow, analyse and document the developments at the Court, e.g. on regulations, procedures and practices and to inform members, states and the public,

• to stimulate the just application of human rights in the Court’s practices, especially with regard to victims and witnesses.

The Coalition is dedicated to the establishment of the Court as a fair, effective and independent international organisation. It’s position at the Assembly is well respected. The relationships between the ICC and civil society has been mentioned as a model for new diplomacy.

It must be made clear that the CICC as a body never makes any statements on the criminal cases before the court. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts.

3. Legal matters and impunity (Martha)

There were three main legal issues that were discussed at this ASP: the legal code of practice, the crime of aggression and the issue of special agreements with the US (sometimes called Article 98 Agreements.)

In preparation for the ASP a draft code of practice was distributed to States Parties and also by the CICC to NGO participants. Most of the code was straight forward and not contentious. There was one issue that was discussed at length with some fear that in opening the code up at all for discussion Paties would start to pick away at its provisions and no agreement would be reached. This fear turned out to be unfounded and in the end the code, as amended was approved.

The sticking point involved the issue of fee sharing. This is a practice that is forbidden but is still known to happen. It is where a lawyer receiving legal aid is asked by the client for some of the money the lawyer receives. There could be several motives behind the request. The original draft included a requirement that council inform the court if a client suggested fee sharing. Some Parties were concerned that this would lead to a breach of the privilege of confidentiality and ultimately a breakdown in trust between a lawyer and the client. In the end a compromise was reached where the new provision required the lawyer to warn a client in advance that a fee-sharing agreement was illegal.

The definition of the crime of aggression remains the great unresolved legal issue of the ICC. This crime appears in the treaty in Article 5 but without a further article defining it. Until a definition can be agreed it remains an ICC crime that cannot be prosecuted. A working group has been in existence since at least the first prep-com after Rome. It is hoped that it can reach a consensus in time for the 7 year review conference 2010.

There are several major issues involved in this definition and many smaller and developing countries are awaiting this definition before they decide whether to become a party or not. They see this a of major importance because many have experienced or fear aggression from another country. One of the discussion points is the role of the Security Council in identifying the crime of aggression. Here, specifically, some countries fear that if the Security Council has too great a role it could lead to vetos or stalemates with aggression never being found for ICC purposes.

The working group has held many meetings with Parties, academics and other informed and interested participants. I has also begun to hold informal intersessional meetings that can last for a few days where thorny issues and be discussed in and informal and frank manner. These seem to be making progress.

The third issue revolves around the United States of America. The US remains hostile to the ICC. Its stated fear is that a rogue court would bring a prosecution against the US President or other high US officials. The Rome Statute deliberately includes provisions that make this highly unlikely. Nevertheless, the US does its best to sabotage the court. Often as a condition of continuing aid, the US coerces/convinces many states including both parties and those not yet parties to the court to sign Article 98 agreements that promise never to send a US person found on their territory to the ICC. Many expect that these agreements will be brought to the court for the judges to rule on their legality. Until that happens and perhaps even after it has a chilling effect. Some countries have ratified the agreements they have signed and some who have refused have suffered the consequences of the withdrawal of aid.

4. Rights of victims and witnesses and the Victims Trust Fund (Lies)

The concerns on these issues are analysed and defined by the coalition’s Victims Rights Working Group (VRWG). This group raises awareness of the rights of victims of crimes within the jurisdiction of the International Criminal Court and contributes to the development of the ICC policies and procedures relating to victims’ access to and participation in Court proceedings with full dignity. The role of victims is one of the important innovations of the ICC.

The VRWG pays particular attention to the need to ensure that the Court will render not only retributive, but also restorative justice, that will aim to prevent, inter alia, re-victimization, breaking cycles of violence and war, and providing reparations and rehabilitation for victims.

Victims Rights as such were not on the agenda. The Court has units for Victims Participation and Reparation, for Victims and Witness and recently an Office for Public Counsel for Victims, with clear roles and mandates to help victims to exercise their rights. Nevertheless, the deep concerns on these issues came to the surface in the Assembly with criticism of the budgetting and the poor provision for personnel and facilities.

The Victims Trust Fund (VTF)was prominent on the agenda and got much attention throughout the whole conference.

The VTF ( chaired by Mme. Simone Veil) is part of the Rome Statue. It is meant to give financial support to victims, their families and communities in need of reparation of their current circumstances. The international community wants “to recognise those who over several years have been the faceless ones, the anonymous ones, the ones that have been side-passed, and so in that proocess help to heal trauma, help to heal wounded communities, help to make whole what was broken,...” (Desmond Tutu, member of the board of the VTF).

The financial means of this fund comes from contributions from states and others. There were two problems. First the issue of earmarking of voluntary contributions. Second the question, wether the VTF board is mandated to make decisions awarding reparation before the sentence in a trial is passed. The working group had a tough diplomatic job, urging the Assembly parties to settle the funds regulations with enough freedom for the board to make its decisions on reparations, quickly and effectively.

5. Gender justice (Martha)

Gender Justice is one of the real innovations of the ICC. It is seen and felt throughout the Rome Statute. It codified for the first time, for example, the crime of rape as a war crime and also a crime against humanitiy (cah). Several other specific gender crimes are enumerated in the Statute. The Treaty also includes, for example, the need for a “fair representation of female and male judges in the selection process.” The inclusion of these provisions is largely due to the dedication and hard work of the Women’s Caucus for Gender Justice of which WILPF is a founding member and the UN Office originally offered the Caucus the use of its office. Since the establishment of the Court, the caucus has taken on a more permanent role and established itself in The Hague as Women’s Initiatives for Gender Justice where it plays an active and complementary role in and with the CICC.

When I attended the prep-coms, I worked closely with the Women’s Caucus on the elements of the gender crimes. At that time we worked hard for wide and inclusive definitions to be included for the benefit of women in affected areas. I attended the ASP I sought out Women’s Initiatives to work with them. Gender remains firmly on the ICC agenda and the Initiatives are there to make sure it remains a strong component of the ICC.

The CICC divides it work into teams who follow specific issues before the ASP. The Women’s Initiatives worked as a team of its own but also with members of the group on other teams to ensure that gender issues were never overlooked by the CICC in its work.

This ASP saw the first Gender Report Card published by the Initiatives. This publication the gender requirements found in the statute itself and also at those found in the rules of procedure and evidence and the elements of crimes. It then went on to produce statistics to show how well the court was doing to meet the various mandates. Overall it showed that with staffing issues there was an over concentration of women in the lower professional posts. They also broke down the list of legal council appointments by region, showing a regional and also a serious gender imbalance. We lobbied to have this redressed.

Gender training also appeared on the Report Card. It was only in the Office of the Prosecutor that this training was seen as adequate. Strong needs for strengthening sexual harassment policies and flexible working conditions were identified. Weakness in a number of other policies was also noted. We lobbied to have these issues redressed.

A section of the Report Card looked at the implementation of a variety of gender mandates and identified several areas where improvement and work is needed.

The document ended with a two page set of recommendations, many of which were actively lobbied. Of particular importance it was felt was the establishment by the ASP of a gender sub-committee of States Parties to monitor the implementation of the gender mandates in the Rome Statute.

After the announcement was made by the government of The Netherlands of an offer to facilitate the building of a purpose build and designed structure for the ICC, I suggested that we should lobby to have plans include a family friendly place. Court employees often have to work long and late and anti-social hours. I suggested that the new building should include a secure crèche or day care for staff and also for witnesses and victims.

6. The Court’s public responsibility, communication and outreach (Lies)

Transparency is the Court’s motto. But good intentions require expertise and an adequate budget. This is especially important on the outreach level: to communicate with the victims and their communities during the whole course of a case. Why should a victim be happy with a trial of a ‘top-criminal’ that is far-away , when he or she is only asked as a witness in the victims role and when there is no involvement of the community and no view on its future? Given this reality, it will be a challenge for the Court to make its motto come true.

In the final resolution, the ASP acknowledged the importance of engaging communities in a situation under investigation with a process of constructive interaction with the Court and asked for there to be a strategic plan for the outreach facilities. The Court does have a unit for Outreach Activities, with main objectives in sensitising and raising awareness about the ICC.

During the ASP there were also serious discussions about the facilities. It became evident that this is not only a matter of intentions and policies, but also of staff and expertise. The outreach to the victims and the (leaders of) their communities asks for very careful processes, in complex situations, and therefore for very experienced liaison officers. They have to gain trust of people who are hard to reach, speak different languages and are very vulnerable, etc.

7. Recommendations for IEC, sections and members

a. We recommend that WILPF continues its participation in the Coalition for the Criminal Court and to accredit some members as observers to the Fifth session of the ASP in The Hague, end of 2006.

b. We recommend the sections follow the development of the relationship between their states and the ASP. If the state of a section is not a party to the the Rome Statue, it would be important to lobby their government to ratify or accede to the Statue and to cooperate with other NGOs in the fields of peace, law and human rights.

c. We recommend all members to follow the developments of the ICC in the above mentioned issues and to eventually take part in the electronic activities of the working groups.

Caucusses/working groups

Women’s Initiatives for Gender Justice

Victims’Rights Working Group

Faith and Ethics Network for the ICC

Universal Jurisdiction Caucus

Children’s Caucus

Peace Caucus

The Crime of Aggression

And others

Information about the reported issues, caucuses/working groups and links to ICC documents can be found on the website of the CICC: www.iccnow.org.