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Review Conference: Informal Daily Summary - 9 June 2010
09 June 2010
Dear All,

The Review Conference of the Rome Statute of the International Criminal Court (ICC) opened on May 31st in Kampala, Uganda.

>From 31 May to 11 June 2010, States Parties to the ICC Rome Statute - ICC's founding treaty - as well as observer states, international organizations and NGOs are meeting to discuss amendments to the Statute as well as its impact to date.

This message includes a short summary of developments at the Review conference on Wednesday 9 June 2010 (I); related documents and press releases (II); as well as latest news articles and opinions on the conference (III).

For more information on the Review Conference, please visit the CICC website at: http://www.coalitionfortheicc.org/?mod=review

Please note that official Review Conference documents can be found on the ICC website at: http://www.icc-cpi.int/

Please do not hesitate to contact us should you need further information.

Regards,
CICC Secretariat
www.coalitionfortheicc.org

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I. INFORMAL SUMMARY OF THE REVIEW CONFERENCE: 9 JUNE 2010

1. AGRESSION

On 9 June 2010, the Working Group on the crime of aggression adopted three paragraphs of its draft report, which was thereafter to be conveyed to the plenary. The Chair pointed out that they were now to continue in informal meetings and appealed to the delegates to achieve a consensus outcome. During the session, Japan highlighted the obligation of every State Party to cooperate with the Court with regard to the crime of aggression irrespective of whether they have accepted the amendment or not and set forth a proposal for an amendment to the understandings in Annex III in order to reflect this.

Informal consultations on the understandings concerning the definition on the crime of aggression took place in the afternoon chaired by the German delegation.

For more information and background, see: http://www.icc-cpi.int/Menus/ASP/ReviewConference/Crime+of+Aggression.htm and http://www.iccnow.org/?mod=review

2. ARTICLE 124

Similarly, an informal consultation also took place to consider a draft resolution deciding not to delete Article 124 from the Statute, but to have an automatic review of the said article in five years.

Article 124 of the Rome Statute is an optional protocol, a transitional provision, which allows States to choose not to subject their nationals to the Court's jurisdiction over war crimes for a seven year period after ratification. The article itself provides that it must be reviewed at the Review Conference.

Background on article 124: http://www.coalitionfortheicc.org/?mod=article124

3. DRAFTING COMMITTEE

The drafting committee considered the translations into 6 official languages of the various reports and other documents considered by the Review Conference.

4. SIDE EVENTS

- ‘The Rome Statute in action’:

The ICC Office of Public Counsel for the Defence (OPCV) and the International Bar Association (IBA) held a ‘demonstration confirmation hearing’ at the People’s Space attended by various lawyers, NGOs, academics, and states delegates. Judge Elizabeth Nahamya and Judge Bruce Kwalisimia Kyerere took part in the moot court, and a number of Ugandan lawyers participated as representatives of the Prosecution, the Defence and Legal Representatives of Victims.

More information on the OPCV: http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Defence/Office+of+Public+Counsel+for+the+Defence/
More information on the IBA: http://www.ibanet.org/

- Arab Working Group on Transitional Justice

No Peace without Justice and the Kawakibi Democracy Transition center held a presentation and discussion on the work of the Arab Working Group on Transitional Justice, which was established in 2009 and includes NGOs, academics, lawyers, researchers and Arab experts in the issues of transitional justice, peaceful resolution of violent conflicts, national reconciliation, human rights and democracy transitions.

More information on the Working Group: www.arabtransitionaljustice.org

II. RELATED MATERIALS

i. “Proposals threaten International Criminal Court's independence”, Amnesty International, Press Release, 8 June 2010, http://www.amnesty.org/en/for-media/press-releases/proposals-threaten-international-criminal-court’s-independence-2010-06-08

ii. “Registrars of international tribunals meet at ICC field office in Kampala (Uganda)”, ICC Press Office, 8 June 2010, http://www.icc-cpi.int/menus/icc/press and media/press releases/pr542

iii. “Video summary of the President of the ICC Judge Sang-Hyun Song visit to Gulu district (north Uganda)”, International Criminal Court, June 2010, http://www.youtube.com/watch?v=CzB_I04CFnI

iv. Read other related documents and statements: http://www.coalitionfortheicc.org/?mod=review

III. LATEST NEWS

i. “ICC fails to fund war victims”, by Mary Karugaba (New Vision), 8 June 2010, http://www.newvision.co.ug/D/8/16/722188

“War victims in the north will have to wait a little longer to get funds to cater for their needs from the International Criminal Court (ICC) Trust Fund.

The chairperson of the trust fund, Elizabeth Rehn, recently said they were unable to reach all the war victims in the north due to limited resources, since the fund relies only on contributions from member countries.
Rehn, who has been in the north assessing the conditions of the 21-year war survivors, hoped that after the review of the Rome statute, the ICC will not only provide peace, but also financial support to the victims.
‘ICC is not mandated to provide financial support to victims. However, for the first time, the issue will be integrated,’ she said.

Renn called on the Government to continue taking care of the war victims. …”

ii. “Making Good on Nuremburg”, by Michael Abramowitz (The Atlantic), 9 June 2010, http://www.theatlantic.com/international/archive/2010/06/the-legacy-of-nuremburg-a-new-scope-for-the-international-criminal-court/57894/

“On the margins of the Review Conference for the International Criminal Court -- a two-week convocation at Lake Victoria, outside the Ugandan capital -- delegates and non-governmental officials from more than 100 countries have attended screenings of a newly restored version of "Nuremberg: Its Lesson for Today," a 1948 documentary on the trial of key members of the Nazi hierarchy. The film concludes with a powerful summation by the chief U.S. prosecutor for the trials, Robert H. Jackson: ‘Nuremberg stands as a warning to all those who plan and wage aggressive war.’ It's a message echoed by former Nuremberg prosecutor Benjamin B. Ferencz and others here this week, who hope to spur conference delegates to approve a new statute for prosecuting the crime of aggression.

Whether or not delegates succeed in codifying such a crime before the conference closes on Friday, Nuremburg's unfinished business has been one its major themes. And it's a major conference: the most significant convocation of international law experts since the gathering in Rome 12 years ago that gave birth to the International Criminal Court (ICC)

…. The debate over the crime of aggression has been the major focus of the talks here, with the United States and the other permanent members of the Security Council on one side and Germany, Brazil, and many smaller countries, on the other. Proponents see the statute under debate as a key step to fulfilling the Nuremberg legacy while reining in aggressor states. The U.S. and others are worried, however, that such a statute could be used to criminalize the lawful use of force (to stop a genocide, for instance) or lead to unjustified prosecutions of political leaders by other countries. Negotiations for a compromise have been intensifying in recent days.

The focus on aggression has perhaps distracted from the other main purpose of the conference: to take stock of how the international justice system is functioning. Last week, delegates engaged in lengthy explorations of related themes, such as the impact of the Rome Statute on victims and enhancing the cooperation of states with the ICC. One particularly involving discussion for delegates, on the tensions between peace and justice, looked at the question of whether ICC prosecutions have interfered with the resolution of conflict in places like Sudan and Uganda. …”

iii. “Are super powers undermining the ICC”, by Haggae Matsiko (The Independent), 9 June 2010, http://www.independent.co.ug/index.php/component/content/article/106-myblog/3011-are-the-super-powers-undermining-the-icc

“Benjamin B. Forencz, a former Nuremberg trials prosecutor has castigated the UN Security Council members for hindering the International Criminal Court (ICC) from attaining jurisdiction to prosecute the crime of aggression.

The ICC is holding its performance review conference at the Lake Victoria shore hotel, Munyonyo Commonwealth Resort, in Kampala. The 14 day conference ends on June 11. The latest news from the conference indicates that although small states like Uganda want the ICC empowered to prosecute the crime of aggression, the big powers remain sceptical and evasive of the issue that has threatened world peace for decades.

‘The Security Council members are putting obstacles. They claim that aggression should be defined but it was already defined,’ said Benjamin.B.Forencz

…. ‘It is clear the Security Council members do not want to surrender their powers to the ICC,’ said Benjamin, the former World War II prosecutor.

Despite this, the ICC President, Judge Sang-Hyun, said the court needs ‘cooperation from party states and that the only formal possibility for the court to deal with non-cooperation is to refer an instance of it to the Assembly or Security Council.’

Analysts say that since the court is subordinate to the interests of the Security Council members, the outcome of the Kampala declaration will largely depend on the big powers’ position on the crime. And Judge Song rightly says the party states’ ‘ooperation with the court is in tension with some other state priorities.’
The ICC therefore faces a challenge to reconcile the interests of the state parties and the role of the court considering that it seems to draw its power from the Security Council member states.

‘It is my hope that the Assembly will consider as a matter of priority how they can best use the political and diplomatic tools at their disposal to bring about cooperation,’ Judge Song says….”

iv. “The Future of the ICC Under Discussion in Kampala”, Genocide Intervention, 8 June 2010, http://www.genocideintervention.net/blog/future_icc_under_discussion_kampala

“… In his speech to the assembly last Monday, UN Secretary-General Ban Ki-Moon called for more support for the ICC to ensure the successful prosecution of war crimes and crimes against humanity. According to Secretary-General Ban, “If the ICC is to have the reach it should possess ... we must have universal support; only then will perpetrators have no place to hide.” This is particularly important, as nearly eight years after the statute came into force, several large countries continue to have contentious relationships with the ICC. China, Russia and India have yet to sign the Rome Statute. The United States has signed the treaty, but has yet to ratify the statute due to concerns about the prosecution of members of the U.S. armed forces.

Secretary-General Ban also denied charges that the ICC only targets African leaders, a trenchant topic given the ICC cases concerning Darfur and the ongoing investigations into crimes committed during the 2007 Kenya elections. ….”

v. “AFRICOM and the ICC: Enforcing international justice in Africa?” by Samar Al-Bulushi and Adam Branch (Black Agenda Report/Pambazuka), 1 June 2010, http://www.blackagendareport.com/?q=content/africom-and-icc-enforcing-international-justice-africa

“… Nearly eight years since its establishment in July 2002, and with its first major review conference just around the corner, the International Criminal Court (ICC) faces a number of challenges. The fact that it has prosecuted only Africans has provoked charges of neocolonialism and racism; its decision to indict certain actors and not others has triggered suspicion of the court’s susceptibility to power politics; and its interventions into ongoing armed conflicts have elicited accusations that the ICC is pursuing its own brand of justice at the cost of enflaming war and disregarding the interests of victims. Each of these concerns is likely to provoke heated discussions at the review conference in Kampala next week.

But there is another aspect of the court’s role in Africa that will require scrutiny going forward: enforcement. Lacking its own enforcement mechanism, the court relies upon cooperating states to execute its arrest warrants. The ICC has found, however, that many states, even if willing to cooperate, often lack the capacity to execute warrants, especially in cases of ongoing conflict or when suspects can cross international borders. Moreover, the African Union (AU) has rejected the ICC’s arrest warrant for its most high-profile target, Sudanese President Omar al-Bashir, and ICC supporters worry that the AU will continue to challenge the court’s authority, especially when the court targets African leaders. The court today thus faces an enforcement crisis: out of 13 arrest warrants issued, only four suspects are in custody. Apparently, having concluded that African states are either unwilling or unable to act quickly or forcefully enough to apprehend suspects, the court has begun to seek support from the one country that has shown itself willing and able to wield military force across the globe: the United States …

The ICC’s Office of the Prosecutor is leading this effort. In June 2009 at a public event in the US, Chief Prosecutor Luis Moreno-Ocampo declared the need for ‘special forces’ with ‘rare and expensive capabilities that regional armies don’t have,’ and said that ‘coalitions of the willing,’ led by the US, were needed to enforce ICC arrest warrants. More recently, Special Adviser to the Prosecutor Béatrice Le Fraper du Hellen declared to CNN, ‘We have our shopping list ready of requests for assistance from the US government,’ which, she asserted, ‘has to lead on one particular issue: the arrest of sought war criminals. President al-Bashir, Joseph Kony in Uganda, Bosco Ntaganda, the ‘Terminator in Congo’ — all those people have arrest warrants against them, arrest warrants issued by the ICC judges, and they need to be arrested now.’ She said that the ICC needed American ‘operational support’ for the Democratic Republic of Congo (DRC), Uganda and the Central African Republic (CAR) ‘to assist them in mounting an operation to arrest him [Kony]. They have the will—so it’s a totally legitimate operation, politically, legally—but they need this kind of assistance. And the US has to be the leader.’…”

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CICC's policy on the referral and prosecution of situations before the ICC:

The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. 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.

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