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Letter to Foreign Ministers of African States Parties to the ICC
Human Rights Watch
26 January 2012
Coalition Members Human Rights Network-Uganda (HURINET), Human Rights Watch (HRW), Coalition for Justice and Accountability (COJA), and International Commission of Jurists-Kenya (ICJ-K) join over thirty civil society organizations in calling on African state parties to the Rome Statute to reaffirm support for the International Criminal Court.
Dear Foreign Minister,
On the occasion of the 18th Ordinary Session of the Assembly of the African Union (AU)–which will take place in Addis Ababa, Ethiopia, on January 29-30, 2012–we, the undersigned African civil society organizations and international organizations with a presence in Africa, write to share some important developments affecting international criminal justice in Africa and to encourage African states parties to reaffirm their strong support for the International Criminal Court (ICC) and its goal of ending impunity for grave international crimes. (…)
Significant moment in the evolution of the ICC and need for renewed support from Africa
2011 was marked by a number of important developments for justice for crimes under international law, such as a higher number of ratifications of the ICC Statute than in previous years, strong popular calls for justice in North Africa, and important elections to top positions at the ICC that will result in a change of leadership at the institution in 2012.
Six new states ratified the ICC Statute in 2011, thus affirming their support to the values of justice and accountability it embodies. Among these six states, two are African (Tunisia and Cape Verde), thus bringing the total number of African states that are parties to the court’s treaty to 33–still the largest geographical group in the membership of the court. (…)
The popular uprisings in North Africa have brought to light the strong desire for justice of populations that had been subjected to repressive rule for several decades. Because of these clear aspirations, ratification of the ICC Statute as well as national prosecutions of grave human rights violations are on the agenda of some of the new governments in that region. Government changes in North Africa have the potential to bring a positive shift in the way these countries approach the ICC and accountability for grave crimes. (…)
(…)The appointment of African officials to senior offices at the ICC reflects the important role that individual Africans are playing in contributing to the success of the court and is of great significance to promoting mutual understanding and strengthening cooperation between the ICC and the AU. (…)
The new prosecutor and the ICC face important challenges at this juncture. With the addition of three new situations (Kenya, Libya and Côte d’Ivoire), the ICC has almost doubled its work-load in not even two years. However, despite this increase in activities, in December 2011, the ASP imposed budgetary cuts on the ICC for 2012 beyond those suggested by the ASP’s expert financial body. (…)
Another major challenge to the court’s authority and ability to deliver justice is of course the fact that several suspects against whom the court has issued arrest warrants have still not been arrested and surrendered for trial, in relation to situations in Uganda, the Democratic Republic of Congo, the Darfur region of Sudan, and Libya. (…)
(…) The ICC and the AU indeed share a commitment to end impunity for the perpetrators of the worst crimes around the world.
In this regard, we would like to highlight three areas of action for your consideration:
• Renew and strengthen dialogue between the AU and the ICC (…)
• Reconsider the creation of an ICC liaison office in Addis Ababa: (…)

• Uphold cooperation obligations under the ICC Statute: (…)
The undersigned organizations also congratulate African states parties for adopting, along with other ICC member countries, important ASP procedures to deal with occurrences of non-cooperation with the court. This non-cooperation protocol foresees two steps: 1) an early warning mechanism through which the President of the ASP will use his good offices, with the assistance of regional focal points, to approach the state party which may find itself in breach of its ICC obligations with a view to promoting full cooperation; 2) once the court has referred an issue of non-cooperation, the bureau of the ASP will take some steps to have a dialogue with the concerned state party and report to the full ASP.(…)
Promoting justice before national courts
In light of the ICC’s limited resources, the court cannot be the sole actor in pursuing the fight against impunity. Under the ICC Statute, states retain the primary responsibility to bring to justice those responsible for war crimes, crimes against humanity, and genocide. (…) To that effect, our organizations call on African states parties to enact effective implementing legislation of the ICC Statute where such legislation is lacking and to support work towards strengthening of domestic systems to handle international crimes.
Concerns over the expansion of the African Court’s jurisdiction
(…) Increased avenues for accountability are positive in principle. However, we are concerned about the proposed expansion of the court for a number of reasons. Notably, the African Court already faces serious challenges implementing its current mandate and giving it jurisdiction over a distinct type of offenses (crimes under international law committed by individuals, as opposed to human rights violations by states) would require significant time to establish new expertise and a vast overhaul in the way the court is currently set-up.
Consequently, our organizations encourage African states parties to insist on a number of conditions to ensure that the expansion of the African court’s jurisdiction will advance the cause of justice for crimes under international law, including the following:
• Wider consultation with civil society and officials (…)
• Adherence by the African Court to international standards and best practices regarding any prosecutions of serious crimes in violation of international law;
• Recognition that AU member states have the primary obligation to investigate and, if there is sufficient evidence, prosecute persons suspected of crimes under international law before their national courts;
• Matching political commitment to expand the African Court’s jurisdiction and personnel, financial and material resources to enable operations in accordance with international standards and best practices; including effective protection and support for victims and witnesses, outreach to victims and affected communities, pre-trial detention, investigations and prosecutions, trials and imprisonment;

• Clarity regarding the relationship between an expanded African Court and the ICC.
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