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More Cooperation Needed for the ICC to Be Successful

Without any enforcement mechanism, the ICC’s success is directly related to the will of states parties to support it and to ensure necessary cooperation. This year, the Sudanese government showed in stark terms the level of resistance the ICC faces in advancing its work. The Sudanese government first refused to hand over two individuals subject to ICC arrest warrants despite its obligation to do so.⁴ The government then appointed one of the suspects, Ahmed Harun, who has remained State Minister for Humanitarian Affairs for Darfur, to a committee whose mandate includes hearing human rights complaints. The Sudanese authorities then released the other suspect, Ali Kosheib, who had been in domestic custody on unrelated charges, for lack of evidence. The Sudanese government has furthermore refused to cooperate with the ICC’s on-going investigation since the arrest warrants were issued.

Such actions are an egregious affront to the victims of the crimes. They also reflect stunning disregard by the government of Sudan for the international community, especially the Security Council that referred Darfur to the ICC, and are a frontal assault on the court’s credibility.

Experience has shown that concerted efforts and active wielding of states’ political, diplomatic, and economic weight can be decisive in compelling cooperation with tribunals, including convincing recalcitrant governments to turn over suspected war criminals.⁵ With more than 100 states parties, including permanent and non-permanent Security Council members, the ICC should be able to widely benefit from such types of efforts in order to advance its work. As discussed below, however, much more is needed by states parties. In particular, this should comprise increased clear, consistent political and diplomatic support for the court’s activities, insistence on cooperation with respect to specific incidents where obstruction is occurring, and practical assistance.

Political and Diplomatic Support

Over the last year, states parties took a number of opportunities to affirm in broad strokes the importance of the ICC’s work and the general need for cooperation.⁶ During the 62^nd Session of the General Assembly’s general debate, for example, a number of states parties’ interventions discussed the ICC, with some citing the need for cooperation.⁷ A few states parties on the Security Council, namely the United Kingdom, Belgium and Slovakia, also raised the significance of the ICC and the need for cooperation at a Security Council summit meeting on peace and security in Africa in September.⁸

Following the presentation of the ICC’s annual report to the General Assembly in November, a number of states parties raised the need for Sudan to cooperate with the ICC or the need for the court’s arrest warrants regarding Darfur and northern Uganda to be enforced.⁹ Denmark, Australia, and the United Kingdom also explicitly referred to the need for Sudan to cooperate in the General Assembly general debate or Security Council meetings.¹⁰ At the same time, states parties – including those on the Security Council – did not for the most part actively react to Sudan’s flagrant attacks on the court’s credibility and failure to cooperate. States parties also missed crucial opportunities to raise the issue where it was relevant and appropriate, such as during the Security Council mission to Sudan in June, which took place only one week after the ICC prosecutor briefed the council on the warrants.¹¹ Most states parties on the Security Council also failed to raise the ICC at all during the summit meeting on peace and security in Africa, including France, which convened the meeting.¹² Similarly, not nearly enough was said regarding the warrants during a high-level consultation on Darfur at the United Nations (UN) in September, and there are indications that states parties do not regularly raise the warrants in bilateral meetings with Sudanese authorities.

With regard to northern Uganda, states parties also missed opportunities to advance the ICC’s efforts. As the peace talks on northern Uganda continued in Juba, Southern Sudan, some states parties seemed keen at certain points for the ICC’s involvement to be sidelined or to support measures contrary to the Rome Statute, which would lead to impunity for ICC suspects. Significantly, displaced persons with whom Human Rights Watch spoke in March 2007 flagged that the failure to execute the arrest warrants for leaders of the Lord’s Resistance Army (LRA) since they were issued in 2005 has fueled opposition to the ICC’s involvement in northern Uganda.

States parties’ political and financial support has been essential to the ICC’s establishment, but without targeted concerted efforts to advance the ICC’s objectives, this court will fail. With its unprecedented judicial mandate, the ICC is unique among permanent international institutions. It is not enough for states parties to have created the court; states parties must be actively engaged in pushing its efforts forward.

States parties should regularly signal the general significance of the court in order to create an overall climate in which cooperation is understood as required. States parties must also indicate in specific situations before the ICC the value they attach to cooperation with the court alongside other objectives. States parties should encourage intergovernmental organizations like the United Nations to do the same. We recognize that states parties need to manage advancing a range of interests. Nevertheless, silence, especially in the face of direct attacks on the court’s credibility, sends a message that is inconsistent with states parties’ commitments to support the ICC. 

Practical Assistance

Judicial and logistical assistance to the ICC by states parties and intergovernmental organizations is also key to the court conducting its work. Such assistance may take a variety of forms and includes activities such as information sharing, facilitating interviews with witnesses, providing transport, and relocating witnesses.

Some positive action was taken to ensure such assistance this year. For example, some states concluded witness relocation agreements, and ten states parties ratified the Agreement on Privileges and Immunity of the ICC.¹³ The Democratic Republic of the Congo also facilitated the transfer of an ICC suspect to The Hague while other states parties provided logistical support in the field.¹⁴ Operational assistance from the United Nations was significant as well.¹⁵

At the same time, there are a range of legal instruments that have yet to be completed by governments and intergovernmental organizations that are necessary to create the foundation in law for crucial assistance. For example, only a very small number of states parties have concluded enforcement of sentences agreements,¹⁶ and many more witness relocation agreements are needed. As for intergovernmental organizations, the ICC’s relationship agreement with the African Union has yet to be concluded. Meanwhile, the European Union, which is made up almost entirely of states parties, has dragged its heels in integrating ICC cooperation into the rules of engagement for its force for CAR and Chad. As the first real test of implementation of the ICC’s relationship agreement with the European Union, this is particularly disconcerting.

ASP Working Groups’ Efforts on Cooperation

Over the course of the year, the ASP working groups in The Hague and New York took steps to enhance cooperation. Under the facilitation of the Netherlands and Denmark, consultations were held and a valuable, comprehensive report was produced (“Report of the Bureau on Cooperation”). The report identifies a range of crucial steps states parties should take to promote cooperation, including: 1) designating national focal points to coordinate court-issues across government institutions; 2) utilizing bilateral contacts and activities in regional and international organizations to generate political momentum for the timely surrender of suspects; 3) raising the ICC when discussing relevant matters, such as peacekeeping mandates, Security Council missions, and peace initiatives; and 4) establishing a follow-up mechanism for the working groups’ efforts, such as an ASP focal point on cooperation.¹⁷

It is vital that the report on cooperation is followed up on in a deliberate and focused manner and that efforts by states parties to promote cooperation are intensified. We see the upcoming ASP session as a significant moment in which states parties can advance these objectives. Accordingly, we urge states parties at the sixth ASP session to:

Publicly call on Sudan in the general debate to arrest and surrender ICC suspects;

Indicate in the general debate and the relevant sections of the omnibus resolution dedication to specific and ongoing efforts to ensure cooperation, including at appropriate moments at the UN and in interactions with non-cooperating states. States parties should also cite concrete steps taken to advance cooperation if they can be publicly mentioned;

Endorse the Report of the Bureau on Cooperation and express support in the general debate and the omnibus resolution for an ASP focal point on cooperation. Such a focal point could in particular work informally with ICC officials throughout the year as necessary to identify cooperation challenges. The focal point could further report on the status of cooperation at the following ASP;

At this ASP, hold and actively participate in an informal meeting to get acquainted with the Report of the Bureau on Cooperation and to identify next steps to build off the report’s conclusions, including follow-up mechanisms. Such a meeting would provide a valuable opportunity for states parties, court officials, and non-governmental organizations to exchange views; and

Plan to convene a working group on cooperation during the ASP’s seventh session to discuss work undertaken by states parties to follow up on the Report of the Bureau on Cooperation.

Notably, the next briefing by the ICC prosecutor to the Security Council on the progress of the Darfur investigation will coincide withthe ASP sixth session. This opportunity only further underscores the importance of states parties clearly indicating at the ASP session that Sudan must arrest and surrender ICC suspects.  We urge delegations attending the ASP session to attend the prosecutor’s report to the council, which will also be taking place at the UN. Attendance by a large group of states parties would send a powerful signal to the Security Council and the government of Sudan.