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Introduction

The sixth session of the Assembly of States Parties (ASP) comes at a significant time. Over the past year, the International Criminal Court (ICC) has continued to take important steps forward. The ICC issued arrest warrants for suspects of atrocities in Darfur, took a second suspect into custody for crimes committed in the Democratic Republic of Congo (DRC), and opened an investigation into the Central African Republic (CAR). The court also strengthened its operations by increasing staffing in its field offices.¹ These offices, which are progressively becoming the face of the court vis-à-vis the affected communities, carry out vitally important activities including those related to victim and witness protection, victims’ participation, support for investigations, and outreach.

The Pre-Trial Chambers had an active period as well. The court’s first confirmation of charges hearing was held in the case against Thomas Lubanga Dyilo and important decisions were rendered by the judges elaborating on the novel rights for victims to act as participants in judicial proceedings.² As judges granted the first Ugandan victims the right to participate in the situation and case phases, an increasing number of applications to participate were received in the DRC situation, and the first applications related to Darfur began to be examined. The Trial Chamber is currently holding hearings in preparation for the Lubanga trial, set to start on March 31, 2008, during which important issues, such as the possibility of in situ hearings, are being discussed.

Despite these advances, the year was marked by growing indications that the possibility for the ICC to succeed in its mandate is threatened by insufficient cooperation and support, notably by states parties and other states that are obligated to cooperate. The government of Sudan’s actions demonstrated how far states will go in blatantly frustrating the ICC’s judicial orders, while a degree of silence by states parties in response raised serious concerns. At the same time, debates around peace processes in the situations under ICC investigation underscored that the imperative of justice as an integral element to establishing a durable peace is not yet universally accepted. Reflecting this, six of the nine public arrest warrants issued by the court are currently outstanding.

This memorandum provides analysis and recommendations to states parties in advance of the ASP’s sixth session. The principal focus of the document is the need for states parties to infuse the session with the commitment necessary to ensure that the ICC is able to operate effectively and that peace and justice go hand in hand. These issues are in our view the most critical challenges facing the institution at this time. We also make recommendations with regard to two issues on the ASP session’s agenda: the election of new judges and the crime of aggression. In addition, we make recommendations on the court’s strategic planning process, which will be discussed in the context of the ASP’s “omnibus resolution.”

This memorandum does not discuss several other significant issues on the sixth session’s agenda, namely the court’s budget, the review conference, and changes in the regulations to the Victims Trust Fund. With regard to these, Human Rights Watch aligns itself with the papers being produced by the relevant teams of the Coalition for the ICC, in which we participate.³ We urge delegations to consult these papers and to take up the recommendations contained therein. This is vital to maximize the success and effectiveness of the ASP.

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