International Justice Day: Celebrating the 11th Anniversary of the Rome Statute

Friday 17 July 2009, 10 a.m. – 12 p.m.

The Hague, The Netherlands

REPORT

Eleven years ago, the Rome Statute, the ICC founding treaty, was adopted at the historic Rome Conference. July 17 is now celebrated around the world as International Justice Day. On this occasion, the Coalition for the International Criminal Court (CICC), the Grotius Centre for International Legal Studies (Leiden University, Campus The Hague) and the T.M.C. Asser Institute organised a moderated panel discussion followed by a question-and-answer session titled "International Justice Day: Celebrating the 11th Anniversary of the Rome Statute". All discussions were held from 10 a.m. to 12 p.m. in the Auditorium of the Grotius Centre for International Legal Studies in The Hague. The event was introduced by Dr Carsten Stahn, Programme Director of the Grotius Centre. A keynote opening address was delivered by Judge Hans-Peter Kaul, ICC Second Vice-President, followed by interventions of Ms. Fiona McKay, Chief of the Victims Participation and Reparations Section of the ICC on "Balancing Victims and Defence Rights in Practice"; Prof. Dr. Goran Sluiter, Professor of International Criminal Law, University of Amsterdam on "Improving Cooperation with the ICC"; Ms. Mariana Pena, Delegate to the ICC, International Federation for Human Rights on "Communicating the Rome Statute System: Making Justice Relevant" and Ms. Deborah Ruiz Verduzco, Senior Programme Officer at Parliamentarians for Global Action on "From Rome to Kampala: Prospects for the 2010 Review Conference". Discussions were moderated by Ms. Cecilia Nilsson Kleffner, CICC Hague Director. The present document is an informal account of the speeches delivered at the event.

I. Introductory remarks Dr Carsten Stahn, Programme Director, Grotius Centre for International Legal Studies "It is a pleasure to welcome you here on this special occasion. We are here to commemorate International Justice Day. 11 years ago, when the votes had been counted at Rome, this day was a distant prospect. The Statute emerged in a unique historical window of opportunity. The ICC was seen as a ‘gift of hope’ and a symbol of a new ‘generation of justice’.

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A day of commemoration is not only a moment of celebration, but an incentive to look into the mirror and to engage in critical reflection. If we were to consult a physician on the state of international justice, and the Rome system of justice, in particular, he or she would probably answer: "The ‘teenage years’ are approaching - and you what this means". The young adolescent is in a crucial stage of transition. Growth is advancing at high speed, but it is coupled with aspiration, doubts and occasional renitence in the strife for profile and independence. We observe signs of this on several levels. Traces of emancipation are visible in the legal and judicial practice of the Court. The Court is part of the justice family. But there is a trend towards emancipation from parent institutions or previous generations of justice. Key substantive concepts, such as genocide, joint criminal enterprise or command responsibility are critically reflected. Procedural practices, such as ‘witness proofing’ or trial procedure are mapped out with new ambition. At the same time, there is some struggle with the heritage of birth, and the genes implanted from different jurisdictions. What is the role of the judge in proceedings? How can disclosure be implemented in a fair and transparent fashion? How do we approach charges and mens rea issues, such as intent, knowledge or recklessness? Inside the family tree, there is some emancipation from brothers and sisters. Different organs and Chambers are in dialogue with each other. But there is a diversity of approaches and opinion, and occasional struggle to preserve role and identity. Different entities, organs and Chamber propose different solutions to similar problems, based on distinct visions of criminal policy, truth-seeking or institutional autonomy. This search is quite natural. It complemented by other symptoms and side effects of growth and emancipation. The states - as parents - are still in control. But with growing age, occasional signs of distinction or warning are sent out to the creators, signalling that the parents are not immune from scrutiny and criticism, irrespective of rank and status. Our Prometheus knows that this may affect budget or cooperation. This is accompanied by reflection on identity and emerging questions about role and performance. How much independence can we realistically seek to aspire? Are we efficient? Where is the balance between universality and regional approaches or domestic traditions? What is the role and function of pre-trial? To what extent can we engage with victims without compromising fairness and capacity? This search and identification takes time and energy. There are risks. It is easy to get side-tracked or to remain self-centered. There may not be enough time for stocktaking and review. At this time, it is important not to lose sight of essentials. There must be clarity on goals and focus. What is the realistic impact of justice? Whose interests does it serve? What is the ‘lasting footprint’ that international courts and tribunals can leave, and how can it be achieved?

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These issues are increasingly pre-occupying the focus of the ad hoc tribunals and the special Court of Sierra Leone. They are equally relevant to specific situations under the jurisdiction of the ICC. These issues cannot be solved by courts and tribunals alone. They require active input from civil society, academia and a broad range of international and domestic jurisdictions and institutions. This is why we are particularly happy to have such a broad participation and such a diverse panel today. "

II. Opening Address Dr. jur. h. c. Hans-Peter Kaul, Second Vice-President, International Criminal Court "Rome, 17 July 1998 – nobody who was there on that crucial day for the International Criminal Court will ever forget it. So, what was it like in Rome on 17 July 1998? The tension in the air was incredible, particularly in the final phase of the conference – excruciating, nerve-wracking. The waters had become ever clearer over the preceding weeks: two camps had emerged. On the one side were the countries that favoured a restrictive approach to the court. Many of them did not really want an international criminal court at all, notwithstanding their protestations to the contrary. Most of them wanted a court that if at all possible was only for others, not for themselves. The then US delegation – hopefully we will soon have again a US delegation at ICC meetings - wanted a particular variant of a Court "for the others only", namely a permanent ad-hoc criminal tribunal that would be subordinate to the UN Security Council, an instrument at the beck and call of politics. On the other side, there was the large group of like-minded states, in general consisting of smaller or medium-sized states, who advocated a truly effective and independent world criminal court. The like-minded States were fully supported by the International NGO Coalition and its members, who already then proved to be steadfast and reliable allies. Then, on 17 July 1998, after one last dramatic tussle at the negotiating table, came the breakthrough, the climax. When the Rome Statute, our founding treaty, was adopted with 120 votes in favour, 21 abstentions and 7 votes against, there was an enormous outpouring of emotions among the 1500 participants, unparalleled for such a conference: screams, stamping, exultation without end, tears of joy and relief; hard-baked delegates and journalists who had watched the entire conference with a frown on their faces hugged each other in delight. And I remember well how a German delegate, normally a level-headed man, jumped up and down like a rubber ball and kept punching me in the ribs, completely breathless, "Herr Kaul, Herr Kaul, we've done it! We're getting an international criminal court!" The great hopes and expectations placed in our small and fragile institution persist to this day, eleven years later. Although some of these hopes are unrealistic, they are nonetheless very understandable. For the creation of the International Criminal Court was indeed a breakthrough, a great advance in world legal policy. Why?

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� For the first time, there is a general, a permanent, a forward-looking international criminal court, that is based on the free will of the international community, on the free will of the States Parties, which has not been imposed on them by the UN Security Council or any victorious powers after the large-scale commission of crimes against international law. � For the first time, there is a universal international criminal court which is based on the general principle of law "equal law for all, equality before the law", i.e. a court that is not selective, as the tribunals for the former Yugoslavia, Rwanda, Sierra Leone, Lebanon and Cambodia necessarily are. However, in the sixth year of my work in The Hague I do know that it remains difficult, incredibly difficult, to transform this fragile institution into a truly viable and universally recognized world court. It will take a lot more hard work and many arduous years, on the part of many people, before we reach our goal. Some of the Court’s challenges arise from inherently limiting characteristics: First: Under the principle of complementarity, the Court may initiate proceedings only if the States which would in fact have jurisdiction are either unwilling or unable to genuinely prosecute crimes. Second: The Court lacks executive power and is entirely dependent on effective cooperation with States Parties, in particular when it comes to the key issue of arrest and surrender of the suspect. Third: The Court must conduct its complex investigations in regions thousands of kilometres away from The Hague, regions where travel is difficult, the security situation is volatile and it is very difficult to collect evidence. Fourth: Genocide, crimes against humanity and war crimes are usually committed during armed conflict as a result of orders from the top. This means that the Court will almost inevitably be caught between the poles of brutal power politics on the one hand and law and human rights on the other. The Court’s legal work is bound to encounter political winds. Adverse political winds can take different forms. In the more extreme variant, the Court can come under attack by States and other bodies that have ulterior motives. Such attacks are often characterized by scare tactics and misinformation. Challenges also arise within the Court simply through the daunting task of implementing the Rome Statute in practice. The Chambers have responded to a diversity of challenges and problems arising from judicial activities which may have remained unnoticed by the wider public. With regard to this, allow me to share with you some observations. � The Court rules on many legal questions both novel and complicated in nature. Most of the adjudicated questions pertain to procedural issues, at times accompanied by so-called interlocutory appeals which trigger parallel "mini-appeal procedures", often resulting in delays. At the same time, other more substantive issues, such as the relationship between the

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Pre-Trial and Trial Chambers or victims’ participation, have not been clearly defined in the Rome Statute and need to be further developed by the Chambers. � A particularly serious problem for the Court is the necessary provision of protection of witnesses and victims and the related implication on proceedings before the Court. Far more so than in central Europe, witnesses and victims, who are prepared to testify, and who are from African "situation countries", are often at great risk and may face threats due to their cooperation with the Court. Their constant demands for appropriate protection are, in the view of the Court, both legitimate and understandable. At the same time, States Parties demand that the Court’s action should neither endanger nor harm any witnesses or victims. And this is where the problem starts: Chambers have the duty to take appropriate measures, such as redactions of information contained in a statement, to protect the safety and well-being of witnesses and victims, on the one hand, and carefully balance it with the rights of the defence to a fair trial without undue delay, on the other hand. Additionally, establishing protection programmes for witnesses and victims in the “situation countries” involves a considerable amount of time, human resources and financial means. To give you a picture, at present more than 300 witnesses and victims are enrolled in protection programmes planned and managed by the Court. � Next Issue: quite high-costs for legal assistance. It would seem that the suspects brought before international courts never have any money. Differences of opinion about the level of legal assistance and defence services that should be provided – based on an almost mechanistic understanding of the common law principle of "equality of arms" – repeatedly flare up and play a complicating role. Today is the birthday of the Rome Statute and of the Court. In many countries, the so-called "birthday child" has, on this occasion, the possibility to express wishes to its parents and relatives. The States Parties are the parents, creators and family members of the Court. As a member of the ICC family, I would like to formulate, on a personal basis, some hopes and wishes vis-à-vis the States Parties: First: with regard to the crucial, yet unresolved question of arrest actions for the Court, one may hope that States Parties will muster the energy and wisdom to tackle this issue more actively and more practically. Nice speeches are not enough. The States did not want the ICC to have its own powers of arrest. Therefore, they should form or make available task forces to arrest suspects for our Court, just as it has been more or less routine for some time now to use these forces against armed criminals domestically. Second: with regard to the budget of the Court, one may hope that States Parties will muster the wisdom to ignore unreasonable demands for zero nominal growth. I can assure you that the Court is now a quite cost-conscious institution – and this has been acknowledged repeatedly by the Committee on Budget and Finance. It is noteworthy that the restrictive position of zero nominal growth is often voiced by States which, on the other side, make sweeping demands to the Court, for example to provide for more public outreach in Africa or more protection for witnesses and victims, regardless of the Court’s limited financial and human resources. If, however, funding is not available to pursue two trials at the same time, or to appropriately finance staff and efficient investigations in African situation countries, this will obviously affect the performance of the Court. Third: with regard to the future Permanent Premises, one may hope that States Parties will muster the energy and wisdom to overcome the general stagnation and frustration which currently prevail, despite the successful conclusion of the International Architectural Design

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Competition on 1 November 2008. Since then, already eight (8) to ten (10) months have been lost for the project, with related additional costs of up to 8 or 10 m € (i.e. 0.5 m € rent per month, from 1 July 2012 onwards + 0.5 m € in increased building costs through inflation). The States Parties established the Project Board. Only the States Parties, not the ICC, are able to ensure that this mechanism works properly and efficiently. We urgently need a Project Board which does not only identify potential risks and problems. We need a Project Board which pro-actively controls these risks and finds solutions for potential problems. We need a Project Board which really drives the project ahead. For the time being, our hopes rest essentially on Ambassador Parker, the committed Chairman of the Oversight Committee. One now must hope that he will be successful in bringing notably the selection process of the architect back on track within the next months. Fourth: with regard to the Review Conference in Kampala in 2010, one may hope that States Parties will muster the energy and wisdom to ensure a successful and harmonious review process and an outcome which will give a strong boost to the Court. As I am regarded as one the architects of the Statute, it is, of course, my very sincere wish that any risks for the integrity of our founding treaty or for a uniform treaty regime will be avoided. If at all, the focus should be on amendment proposals to the Statute which enjoy consensus or the widest possible support. I have spoken a lot about challenges and problems facing the Court. On a day set aside for the celebration of international justice – on the anniversary of the remarkable agreement in Rome – this may come across as raining on the parade. But quite to the contrary, I would like to underscore that the birth of the Rome Statute is something very much worth celebrating. It is a milestone in the development of a comprehensive, permanent system that one day could end impunity for the worst crimes known to humanity. So, to the best of our abilities – and our abilities are greater than many think, at least that is my experience – let us all be bold and optimistic in continuing this work in progress for greater justice in this imperfect world. Thank you very much."

III. "Balancing Victims and Defence Rights in Practice" Ms. Fiona McKay, Chief, Victims Participation and Reparations Section, ICC "Honourable Judge(s), ladies and gentlemen, it is a great pleasure to be here today on this occasion to mark International Justice Day, eleven years on from the conclusion of the Rome Statute. First, I would like to convey the best wishes of the Registrar, Mme. Arbia, and her regret at not being able to be present herself at this event today. I am very happy to have the opportunity to say a few words about a subject that goes right to the heart of the justice that the ICC was established to implement: the rights of the defence and of victims in the proceedings. Full respect for the rights of the defence and ensuring the "equality of arms" is crucial for a fair trial and for justice to be both done and seen to be done. The rights afforded to victims under the Statute may be new to international criminal justice, but they are fundamental to the nature of the Court and to its role in tackling the most serious crimes of concern to the international community.

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It is worth reminding ourselves of what these rights are. The rights of the defence recognized in the Statute include: 1) the right to be present during trial, 2) the presumption of innocence, 3) the right to a public hearing, 4) the right to have adequate time and facilities for the preparation of the defence, 5) the right to counsel and legal assistance, 6) the right to be tried without undue delay, 7) the right to examine and call witnesses, 8) the right to interpretation and translation, and 9) the right to remain silent. The Statute also establishes important rights for victims. Some of these are an innovation in international criminal justice: the right to participate in the proceedings by presenting their views and concerns where their interests are affected, the right to be represented by counsel during the proceedings, and the right to request reparations. The Court is bound to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. A Trust Fund was established to benefit victims of crimes within the Court’s jurisdiction and their families. When it comes to putting these rights into practice, the Court sets out to ensure that the rights of both victims and defence are fully respected. I would assert that we should not view these two sets of rights as somehow naturally or inevitably in opposition to each other. The concept of balancing assumes that somehow one or the other needs to be compromised. Yes, there are challenges in implementing the rights of each of them, and yes, there are occasions when a balance needs to be struck. But the Court should – and does – aspire to fully respect the rights of each. To date we have seen important decisions of the Court defending both sets of rights. I will just mention two important decisions. One is Trial Chamber I’s decision to suspend proceedings against Thomas Lubanga Dyilo because the prosecution’s inability to disclose to the Court potentially exculpatory information it had collected raised concerns that Lubanga would not receive a fair trial. A second is Trial Chamber I’s decision of 18 January 2008, which established how victims could participate during the trial. The Registrar is given important responsibilities in the Statute that are aimed at putting into practice both of these sets of rights. These include providing support to counsel for the defence and victims, providing protection and support to victims and witnesses, and assisting victims in relation to participation and reparation. I would like to take this opportunity to recognize the vital role that is played by NGOs, including very small community based organisations that work hard with few or no resources to make sure that victims of crimes can actually take advantage of the rights that they are given under the Statute. We are right now seeing the first experience of victims participating in a trial, with 93 victims participating in the Lubanga case, represented by three legal teams. It has been fascinating to see how the process is being managed by the Trial Chamber, including the balancing exercise that is called for in Article 68.3 of the Statute. Article 68.3 provides that victims may present their views and concerns "in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial". During the first part of the Lubanga trial we have seen attempts to develop workable procedures that enable this balancing to take place. Victims’ legal representatives can apply in writing to the Trial Chamber to intervene on behalf of their clients at specific stages, such as to put a particular line of questioning to a witness, so that the Chamber can rapidly

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determine whether the interests of their clients are affected and decide whether or not to permit the intervention. A key issue addressed through the Lubanga case has been whether victims may present or challenge evidence during trial. This is obviously important in the context of fair trial. The decision of Trial Chamber I of 18 January 2008, which was confirmed in this respect by the Appeals Chamber, was that victims’ legal representatives could introduce and challenge evidence during trial if it would assist the Chamber in the determination of the truth. Interestingly, we have not yet seen the legal representatives seeking to use this possibility during the trial so far. The legal representatives have sought leave to put certain questions to witnesses; they suggested that the Chamber appoint an expert on the question of names in the DRC – a suggestion that was acted upon by the Chamber; and they successfully argued that the possibility exists for a legal re-characterisation of the facts to be made during the trial, if the facts substantiate different charges to those currently charged. But they have not yet directly taken advantage of the opening that was provided in the Trial Chamber’s decision of 18 January 2008. If and when they do so, we will certainly see the Chamber vigilantly exercising its role under Article 68.3 to balance any such requests with the interests of the defence. I think this first experience has shown that the participation of victims can work. There were fears in some quarters that the participation of victims would overwhelm the proceedings and have a negative impact on the rights of the defence. Few would assert today that this has been the case, at least to date. The practice to date before the pre-trial, trial and appeals chambers has demonstrated that the Court has tools at its disposal that assist in balancing the role of victims with the rights of the defence. Chambers have the opportunity to group victims so that they are represented collectively, and have encouraged legal teams representing victims to make joint filings wherever possible, thereby reducing the number of participants and filings that the defence – and indeed the Prosecutor – have to respond to in the proceedings. It is true that the participation of victims has created additional work for the defence teams. But this has been recognized in the legal aid scheme in terms of resources made available to the defence. It is also true that the requirement to protect the security of victims has made it necessary for chambers to frequently order that the identities of victims who have applied to participate, or are participating, in the proceedings are not disclosed to the defence. This reflects the reality of the contexts in which the Court is operating. Different Chambers have sought to deal with this in different ways. Most have distinguished between the role that can be played by anonymous and non-anonymous victims, giving more extensive access to confidential documents, for instance, to representatives of victims who agree to disclose their identities. To conclude, we are seeing the pre-trial and trial chambers rising to the challenge of on the one hand making victims’ participation meaningful, while on the other hand ensuring the fair trial rights of the accused. It is certainly still very early days, and we will certainly face many challenges and see further evolution in this area through the Court’s practice and jurisprudence, for instance when it comes to the first reparations proceedings. So far, though, the Court has been able to demonstrate its impartiality and its capacity to successfully balance the rights of the defence and victims."

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IV. "Improving Cooperation with the ICC"1 Prof. Dr. Goran Sluiter, International Criminal Law Professor, University of Amsterdam Improving cooperation is most difficult. It was difficult for the ICTY and is for the ICC. There is a risk that the ICC may end up with too many outstanding indictments. It would not be a good solution to follow the Special Tribunal for Lebanon and have trials of the accused in absentia. However, how can we arrest and transfer individuals to the Court? The above is the ‘cooperation paradox’. There are States with no obligations to the Court. These States are potential safe havens. We want to improve cooperation and make it solid and effective. However, States may not want to join a Court that is effective with cooperation. How can we improve cooperation? Firstly, substantive law, namely Part 9 of the ICC Statute must be improved. It is not impressive and remains one of the weakest parts of the Statute. Further, its effectiveness is questionable. There are many examples; however, the example of obtaining testimonial evidence will be elaborated upon. Obtaining the presence of witnesses in Court is important. The Judges must be able to see and get an impression of the witness. However, the witness does not have a duty to come to The Hague. The witness can stay at home. The named situation is problematic, not only for justice, but for the defence of the accused. The Review Conference will be in 2010, will this be on the agenda? Maybe not. The ASP is the legislator. How are they kept informed? In practice, they follow the Court and jurisprudence. But they might not know the problems that arise in practice through the functioning of the Court (all organs). With practical and functional knowledge in hand, the ASP should then be in a position to be an active and effective legislator. Secondly, enforcing cooperation, especially under circumstances where a State has an explicit position of non-cooperation (i.e. Sudan), needs to be addressed. The enforcement of cooperation primarily concerns the arresting of the accused and said being transferred to The Hague; its secondary function is development of the law. However, there has yet to be any finding of non-compliance by the Court, pertaining to Art. 87(7). At this stage, we are unsure of the obligation of the States. There might not be any obligations for the States at all. After years of non-cooperation, we have not seen any decision by the Court as of yet. Can this be seen as the Court condoning such behaviour? States refuse to cooperate and the Court condones. The situation challenges the authority and legitimacy of the Court as a whole. Is it the responsibility of the OTP or Judges? The OTP applies for the warrant, but the decision is imposed by the Pre-Trial Chamber and steps must be taken if not complied with.

It is surprising after all of these years, there has been not been any non-compliance findings; maybe owing to political reasons? There are many challenges ahead; however, cooperation will be the most important area for the functioning of the Court. I hope we will have a judicial finding of non-compliance for the case of Sudan.

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V. "Communicating the Rome Statute System: Making Justice Relevant"2 Ms. Mariana Pena, Delegate to the ICC, International Federation for Human Rights The following topics will be explored in this presentation: (i) the importance of communication around the ICC Statute (ii) review of the achievements made to date (iii) challenges lying ahead. It is important that the terms public information and outreach are clarified: (i) public information, refers to the Court’s relationship with and use of international and local media, including print, radio, or televised media (ii) outreach, on the other hand, refers to sustained, two-way ‘dialogue’ between the Court and affected communities. Importance of Communication around the ICC Statute Why is communication important to the success of the Court and the entire Rome Statute? Firstly, we should consider: who is justice for? Is it for a group of lawyers, judges, academics, diplomats and experts in The Hague? Or is it mainly for those most concerned by the crimes, the victims and communities who witnessed and suffered as a result of those crimes? Communities affected by massive crimes feel neglected and a sense of frustration can arise as a result of the feeling that justice has not been made. This can potentially reinforce existing tensions between different groups (ethnic, racial or other) within the society, and eventually, bring new sources of conflict. This is why it is paramount that justice is not only done here in The Hague, but also seen as being done by the affected communities. Dissemination of knowledge about the Court can further create a sense of awareness and interest in the rule of law and respect for human rights. Therefore, victims are and should be among the main targets of communication. The Rome Statute gives victims unprecedented rights before an international criminal tribunal. In order for those victims to be able to exercise those rights meaningfully, they must be made aware of them, as well as of the challenges involved in implementing those rights, the practical aspects, and the results they can possibly expect. Communication is an exercise which implies management of expectations. In addition, it must be noted that the ultimate goal of the Rome Statute is the fight against impunity and the prevention of further crimes, through accountability. In order to have a deterrent impact, the Court's actions and potential, must be known to potential perpetrators and those who would be in a position to potentially commit crimes within the jurisdiction of the Court. Finally, conveying information about the ICC trials contributes positively to putting an end to a culture of impunity and fostering complementarity. For example, it is believed that public information about the OTP’s visits to Colombia, or the declarations made in relation to the Kivus, Kenya, or Gaza, show a major have had a positive impact on both deterrence and complementarity. Review of Achievements Communication around the Rome Statute has evolved. When the ICC started operating, communication was not seen as a core function of the Court. Primarily, this was based on the fear that dissemination of information could affect the discreet conduct of investigations. It soon became apparent, that dissemination of information, in particular through outreach, was essential for the success of the Court and that it was part of its core mandate. It was then acknowledged that although NGOs and other external actors could contribute to increasing the Court’s visibility, there were messages that had to be delivered by the Court itself.

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A significant investment by States resulted in the creation of an Outreach Unit and in that new staff was hired both in The Hague and in field, to better devise and implement the Court’s outreach strategy prepared in 2006. The Court went from organizing seminars and workshops, to devising other means to reach out to local communities, including town hall meetings, use of local radio and cooperation with interactive radios, and more recently the production of video and radio summaries, for local screenings followed by debates and distribution to local radios. Challenges Lying Ahead There are a number of challenges that lie ahead. The difficulties of (i) conducting outreach (ii) logistical challenges, related to access and security (iii) polarization of the affected communities, and (iv) an extremely politicized local context, cannot be underestimated. Misinformation does exist. Some of the major challenges the Court faces at present relate to public information, as the Court's first efforts on communication have focus primarily on outreach to affected communities. The current climate surrounding the ICC (in particular following the announcement of an arrest warrant against Omar Al-Bashir) has made it evident that a gap left by lack of public information coming from the Court, is easily filled by those willing to manipulate public opinion. There are other challenges the Court faces, such as: (i) early start of outreach activities; the moment an investigation is opened, but in many cases, even before, information about the Court starts circulating. If the Court is not ready to provide accurate and timely information, there is a high risk that misinformation starts circulating and wrong perceptions are created, or high expectations arise (ii) coordination, both internally and externally needs to be improved, (a) between the different organs of the Court, especially between the Registry and OTP (b) external actors, including NGOs, community-based organizations, local leaders, but also local and international media (iii) increasing involvement of Judges in public information activities. The Review Conference also presents, rather than a challenge, a major opportunity for communication about the Court. Conclusion The Court has gone from an initial phase of unjustified secrecy and confidentiality, to having a more open and public face. The Court is still perceived by some as a hermetic institution, so efforts to improve visibility of the Court must continue to increase.

V. "From Rome to Kampala: Prospects for the 2010 Review Conference"3 Ms. Deborah Ruiz Verduzco, Senior Programme Officer, International Law and Human Rights Programme, ICC Campaign, Parliamentarians for Global Action Dr. Stahn made reference in his opening remarks to the ICC as a teenager yet to reach maturity. I wonder, however, whether the parents of this teenager, the States, have themselves reached also maturity to deal responsibly with international justice. The Review Conference, set to take place in June 2010 in Kampala, Uganda, will certainly be a moment to make such evaluation, as it concerns mainly the challenges faced by the State Parties, and will be revealed especially on two tracks: (i) substantive proposals for review of the Statute, and (ii) the exercise of stocktaking of the system of international justice. How will the success of the Review Conference be measured? First, to the extent States achieve to keep the Rome spirit alive, one that protects by all means the integrity of

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the Statute in creating an independent, effective and someday universal court to serve above all the purposes of victims or potential victims. The Rome Statute spirit means the positions and the decisions that led to the adoption of the Statute as a “high watermark in the intentions and commitment to end impunity”, the hope of humanity having the possibility of doing better, the single issue that has made possible the 109, almost 110, ratifications to date. Or in the words of Amb. Bruno Stagno, as reflected last year at the 10th Anniversary, the obligation to put humanity above sovereignty. And, third, the Review Conference will hopefully address and reverse what seems to be amnesia being suffered by some States, States that were in Rome, which contributed to the Statute. Namely, recalling their ownership over the Rome Statute, and their obligation towards it. On Substantive Proposals 1. Article 124, the provision that allows for an exception of seven years over the Court’s jurisdiction of War Crimes when a State lodges a declaration upon ratification, is the single transitional provision in the Rome Statute. To date, only two States, France and Colombia have used said provision. In 2008, France withdrew its declaration under Art. 124 leaving Colombia as the only State Party with a declaration under said article. The effects of such declaration for Colombia will expire on 1 November 2009. The inclusion of Art. 124 into the Rome Statute certainly weakened the jurisdictional regime of the ICC. Its inclusion was also seen as being incompatible with the object and purpose of the Rome Statute, namely: “to put an end to impunity for perpetrators of [the most serious] crimes [of concern to the international community as a whole] and thus to contribute to the prevention of such crimes.” States may seem tempted to use the universality argument, namely that article 124 would promote ratifications, not to face their task to delete permanently such transitional provision from the Statute. Indeed, informally some delegates from Non-State parties have mentioned it would be unfair if they could not benefit from Art.124. Both arguments are terribly weak and flawed. If only two States out of 110 have used said clause, how can the universality argument suffice? And indeed, in the case of Burundi, the position of the government to use such clause blocked the ratification process for several years since the parliament was against the use of such clause, precisely because it undermined the very reason why it was in the interest of Burundi, or any other state, to join the Court. Universality is certainly important but especially to achieve the principle of equality of all before the law especially given the current jurisdictional limits of the Court (nationality or territory). However, universality is not a means and not a principle or a policy to be achieved at the expense of victims or potential victims of war crimes. The Rome Statute is not just an ordinary international treaty sustained on reciprocity clauses. It is a manifestation of the fundamental principle that serious crimes cannot go unpunished, and article 124 does not seem to contribute to such objective and therefore should be, as mandated in the Rome Statute, reviewed in Kampala. Its deletion should raise no problems from the amendment procedure point of view, since its deletion would not affect even those States Parties that object it. 2. In regards to the crime of aggression, the fourth crime currently under the jurisdiction of the Court as per article 5 of the Statute, the SWGCA concluded its work in February 2009 with concrete results. The crime of aggression, proposed draft Art. 8 bis has been defined as follows: ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the UN. A proposal for the elements of crimes has been concluded last June and there seems to be agreement other applicable principles, such as complementarity. Further, there are several issues that remain open, all with respect the role of the Security Council. A main challenge will be reaching consensus.

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Contingent on support, two avenues for amendment are foreseen: (i) acquiring a high threshold for ratification for the provision would apply to all states (ii) a lower threshold that would apply only to States that ratified it. None of these ideal to deal with both political challenges and the integrity of the Statute, for this hopefully a third option could be created. The discussions continue with the full engagement of States on equal footing, including non States parties such as Cuba, from the Middle East and Asia, an important development that should be applauded. 3. Other substantive proposals to extend the provision on war crimes include those of Belgium and Mexico. The Belgian proposals, three proposals indeed, concern extending the criminalization of the use of poison weapons and expansive bullets to non international armed conflicts, and adding the use of biological, chemical and anti personnel mines, and of non detectable fragments and laser weapons to both international and non international armed conflicts. The Mexican proposal concerns the inclusion of criminalizing the employment or threat to employ nuclear weapons in the list of war crimes under Art. 8(2)(b). All very complex proposals and power-sensitive that nevertheless reaffirm the centrality of the ICC in the maintenance of peace and the prevention on human fatality. 4. Concerning other crimes, such as drug-trafficking and the crime of terrorism, the final Act of the Rome Conference recommended that a Review Conference “consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court”. No proposals have been put on the table on these matters. In any case, some States, such as Uruguay, that have incorporated the financing of international crimes in their criminal codes in relation to ICC crimes, have certainly contributed to make the link between transnational criminal activities over international crimes, an example that States could follow in matters of their domain and not necessarily in Kampala. Finally, two notes concerning procedure. First, the next session of the Assembly of States Parties (ASP) to be held in November in The Hague will be the forum to submit all proposals with a view of defining the agenda for Kampala and initiate discussions. Under the draft rules of procedures for the Review Conference, the Judges can also make proposals directly to the States. Second, Kampala is just the first of yearly opportunities therein to consider Review the Statute. II. On Stocktaking The ASP has agreed that the Review Conference should have as integral, not secondary, aspect on the stocktaking on international justice, which means reflection, evaluation and decisions on the performance to date of the system as established by the Rome Statute. By system I want to stress the State component, of the system, as domestic jurisdictions and other national actors are components, and contribute to the successes or failures of international justice matters, including those that fall under the ICC. This exercise will include a diverse group of relevant actors, to which victims and communities affected by the Court’s work and Ngo’s belong. As agreed by the ASP stocktaking should include considering: (i) the impact of justice on victims and affected communities (ii) State cooperation with the ICC (iii) complementarity and implementation of the Rome Statute. On the first issue, arrangements and planning is ongoing as to the best modality for this important interaction. PGA will make its contribution by holding in Kampala the week before the Review Conference the VII Session of the Consultative Assembly of Parliamentarians for the ICC with more than 150 MPs from all over the world attending. On cooperation, as indicated by Prof. Sluiter, there have to exist permanent mechanisms, and in Kampala, the minimum to be done on the matter is a compilation of models of best

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practices and ideally a comprehensive plan of action to address cooperation and non-cooperation. The ASP is the forum to be dealing with these issues that are arising. On Complementarity and Implementation of the Rome Statute, these are the indicators of a readiness to prosecute international crimes and cooperate with the Court, and both depend on the existence of legislation. To date, only 40 states have legislation to cooperate with the Court, and 48 states have incorporated the ICC crimes in domestic legislation (none of the situation countries, an important aspect to make complementarity operative). 51 States Parties and 84 NSP have yet to ratify or accede to APIC. Non SPs can do so without joining the RS such as Ukraine. How will the States Parties deal with this enormous and urgent challenge? The date of the Review Conference should be ideally the deadline for each State to advance substantially on legislation. The Review Conference should be also the Forum to make the decision to count with a system for this ongoing task. Other international organizations give considerable importance to implementing legislation enabling its secretariats to address the matter. A propose modality for the ASP need to be found urgently. is

On stocktaking I want to retake the issue of universality. To what extent can one

excuse, after 11 years and so much recent publicity around the Court, that governments are ‘studying’ whether to join or not the ICC? There is a need to mobilise political will in those states where it is missing. The recent ratifications of Chile, for example in complex political situations are an inspiration. And the moment to push for universality is now, ahead of Kampala. All States ratifying or before the 1 of April would be able to have a vote in Kampala. Universality will not only further the principle of equality of all, but can also address concerns over the selectivity of the SC concerning the situations it refers to ICC, but the burden relies on states to participate in the system by joining. The protective factor, namely the ICC protecting it from crimes, should be a motivation. Host State Issue An important issue today. Choosing Uganda to host the RC was not uncontroversial, given that is a situation country, it has signed, a non surrender executive agreement with the US and does not have implementing legislation. But, Uganda recently ratified APIC, and its parliament, among which PGA members, is working on an expeditious adoption of implementing legislation for the Rome Statute, by September. However, with respect to media outlets of a possible visit of Sudanese President Al Bashir, receiving an individual indicted by the Court would be a concrete instance of non-cooperation that would entail losing the venue for the Review Conference. Indeed the ASP considered the scenario of unforeseen developments and would entail losing the venue of the Review Conference. Arrest warrants are not political declarations that need to be supported or not, are judicial decisions that need to be executed to allow justice to takes its course away from politics. Conclusion US State Secretary Hilary Clinton made two days ago remarks at the Council on Foreign Relations on the international institutions the US would be looking to support. She did not make a reference to the ICC, however, but the four elements she pointed to are worth considering in the context of the ICC today, in the anniversary of the Rome Statute. (i) Representativity, that in ICC system is reflected through the universal ratification of the Statute (ii) Legitimacy, in ICC system refers to one that is coherent and preserves integrity with no reservations or exceptions for any state (iii) Proved continued vitality and relevance, in ICC system means to respond to the current challenges, for example by incorporating means to end the use of force, and the threat of certain weapons (iv) Readiness to act swiftly and responsibly when problems arise, that in the ICC system concerns, at least through the adoption of legislation and the creation of collective bodies to look at issues of cooperation to ensure effectiveness. This is the ICC system states need to keep building.