Support for the ICC: Material and Political Advocacy

By Liz White


Members of the Darfurian community demonstrate outside the International Criminal Court, or ICC, in The Hague, Netherlands, Wednesday March 4, 2009. The International Criminal Court will announce Wednesday whether it will issue an arrest warrant for Sudanese President Omar al-Bashir on charges of masterminding genocide in Darfur _ amid fears it could provoke a violent backlash. The chief prosecutor, Luis Moreno Ocampo, says dozens of witnesses will testify that al-Bashir controlled a genocidal campaign aimed at wiping out three ethnic African tribes in the vast nation south of Egypt. (AP Photo)

Since July 2002, the Office of the Prosecutor has received 499 allegations of crimes from 66 different countries. Given the vast number of communications the Court receives, it would be easy to assume that they are overlooked, but these communications have a proven impact. The Office of the Prosecutor (OTP) received six communications regarding the situation in Ituri, in the Democratic Republic of the Congo (DRC), including two detailed reports from nongovernmental organizations (NGOs).  These reports prompted the OTP to open an investigation into these crimes, with the specific situation in Ituri as “the most urgent situation to be followed.”

Advocacy groups related to the International Criminal Court make use of two major approaches: material and political support. In the first approach, advocacy groups serve the Court in a material way, before, during, and after investigations, by providing information on potential cases, offering evidence regarding open cases, and aiding victims and witnesses before the Court. The Court often relies upon outside information to form a complete understanding of the situations in countries. Before the investigation begins, human rights NGOs can play a critical role in providing details about the context for and details of crimes committed. These established NGOs have often been following atrocities in countries for extended periods of time and consequently provide valuable insight into the situation and its acceptability before the Court. If there is reason to believe that atrocity crimes that fall under the jurisdiction of the Court are occurring, NGOs can send reports to the OTP, as in the case of the DRC. At this point, advocacy groups can provide information on alleged perpetrators and victims, as well as physical supporting evidence, such as photos or written records.

This aid, however, carries possible dangers. Regarding the collection of evidence, especially concerning sites of crimes, such as mass graves, the involvement of NGOs can complicate, and even destroy, the potential for the Court to make use, if actors outside of the OTP’s team tamper with it. Further, the Court strives to prosecute all guilty actors, rather than only one side of the conflict. However, NGOs can often portray one side of the conflict as victimized and the other as offenders. Additionally, in order to provide useful information to the Court, the NGO must see the Court as a means of justice. The opt-in nature of providing information to the Court tends to favor international rather than national organizations.

Given that the ICC is a court of last resort, and national courts take precedent in prosecuting the crimes if they are willing and able, these NGOs can also provide insight into their capacity and willingness of governments to do so. This information can aid the Court in determining its own jurisdiction and moving forward with investigations.

Kenya’s Deputy Prime Minister and Finance Minister Uhuru Kenyatta, center front, talks to the media outside the International CriminalCourt in The Hague, Netherlands, Friday, April 8, 2011. Uhuru Kenyatta appeared at a preliminary hearing along with Cabinet secretary Francis Muthaura and the country’s former police chief Mohammed Hussein Ali before judges at the International Criminal Court for allegedly orchestrating postelection violence that killed 1,000 people. Uhuru is the son of Kenya’s first post-independence president Jomo Kenyatta and is considered a serious contender in next year’s presidential elections. (AP Photo)

Once an investigation opens before the Court, NGOs have additional avenues of engagement with the Court. Advocacy groups can submit Amicus Curiae, or ‘friend of the court,’ briefs to the ICC during investigations to offer policy suggestions or legal analyses for a particular case. During and after investigations, NGOs also serve as a facilitator between victims and witnesses and the Court. These organizations can help inform victims and witnesses of their potential participation in proceedings, and help them obtain legal representation and in trial in the event that they choose to do so. NGOs are often also valuable in aiding victims in applying for reparations from the Court. However, when engaging in such close contact with victims, if it important that protocols are established for the interaction of advocacy groups and victims. The Court states that it would prefer summarized statements, rather than verbatim, signed statements, that could potentially “contaminate” the witness’ testimony going forward, while NGOs often rely upon these personal testimonies in their research. Ensuring that NGOs are aware of the Court’s needs can help these advocacy groups serve the work of the Court.

In the United States, the second advocacy approach focuses on increasing political support for the Court and its work. With that goal, these groups strive both to increase Congressional support and constituent support. While most of these groups also support the US’ ratification of the Rome Statute, this long-term goal tends to drive smaller projects given the understanding that treaty ratification not likely to occur in the near future due to concerns about a loss of sovereignty. The Washington Working Group on the ICC (WICC) is one of these groups that work to increase U.S. engagement and cooperation through Congressional advocacy. As an example of their work, in collaboration with the ABA-ICC Project, WICC is working to enact legislation that would prohibit crimes against humanity in the U.S. Currently, acts of genocide and war crimes are illegal, but crimes against humanity are not. Enacting such legislation would allow for prosecution of these crimes in the U.S. and would also make American legislation in line with the Rome Statute, allowing for a more seamless eventual entry as a member of the Court.

The opportunities for the engagement of advocacy groups with the ICC are numerous, and their potential aid can be significant. The on-the-ground insight that advocacy groups can provide to the ICC can support investigations and trials, as well as support the victims and witnesses that are involved in cases. There is These advocacy groups can also gain grassroots support for the work of the Court, as well as governmental support for the work of the Court. When engaged in such in-depth work, the value that these groups add to the Court is substantial.