Impunity workshop (English)

Working group on impunity: working with the ICC

10/09/2003: Working group D, French Chairperson:

Michel Forst

Secretary:

Delphine Roch

The working group D is made up of defenders from French-speaking black Africa (West Africa and Central Africa), except for Radhia Nasraoui (Tunisia) and Pierre Espérance (Haiti).

1)Ratification problem:

- According to the defenders present, most African states have not ratified the Rome statute because, as they themselves are generally the source of human rights violations in their country, these governments (often the result of coups or genocidal in nature) want to elude the competence of the Court. This poses a problem for the working of the Court in dealing with crimes to which the statute of limitations does not apply, such as genocide.

-Civil society and African NGOs have no legitimacy in the eyes of their government. Dialogue is difficult and African states are also not predisposed to listen to civil society which could be in a position to press for ratification - NGOs have difficulty lobbying their own governments on the issue of human rights defence.

2)Problem with the date of entry into force of the ICC's competence:

The fact that the ICC is not competent to judge the authors of crimes committed before the 2nd of July 2002 poses a certain number of problems:

- What are we supposed to do about crimes committed before this date? What is to be done with all the proof and testimonies gathered systematically from victims over the years? What is going to become of all the documentation on human rights violations before July 2002? The issue of the Court's efficiency arose again because the perpetrators of serious human rights violations who do not come under the court's jurisdiction because of the time issue remain unpunished.

- What are we to say to the victims and their families who come to see us and who have put all their hope into the ICC? Even if we, defenders of human rights and especially those of us who are lawyers, are able to understand the concept of non-retroactivity of crimes and misdemeanours, how can we explain this to the victims? Further, we know that in our countries any complaint against a government member laid before the national courts is useless because the government pursued will simply ask the judiciary to shelve the complaints brought against it or its allies (case of Mauritania). Feeling of impotence.

3)Problem of the efficiency of the ICC because governments "cheat"::

- Problem of self-proclaimed amnesties by repressive governments: several participants expressed their concern regarding amnesty laws which their governments have granted themselves (CDR, Burundi) to protect themselves against legal action.Where these States have ratified the Rome statute, will the ICC accept these amnesties?

- Example of Burundi where the government would be prepared to ratify the Rome statute but wants to push back the date of entry into force of the ICC to 2006 (to avoid being the subject of legal action). Can a government make its ratification subject to such reservations?

- Example of the attitude of the Nigerian government which offered "asylum" to president Charles Taylor who was charged with serious violations of international human rights by the Special Tribunal for Sierra Leone: the participants feared that there would always be a dictator somewhere ready to welcome another dictator into his country by refusing to extradite him or to hand him over to the ICC, thereby paralysing the working of the Court.

4)Failings of ICC regarding HRD:

Lack of information to defenders and even more so to local populations, regarding the workings of the ICC, the legal conditions under which a case may be submitted to it, the type of information required before the case can be put to the prosecutor, etc. All the participants agreed that the concept of the ICC is wooly,that its working is very complex and little understood. The participant from Senegal said that she had just discovered, from her neighbour in Mauritania, that Senegal had ratified the Rome statute, before all the other countries in Africa.Another participant, in giving the example of a complaint brought by the Congolese government against Rwanda, confused the International Court of Justice with the ICC.

In spite of all the reservations made above, the participants agreed that the ICC represents considerable progress, that it is their duty to lobby their governments to ratify it and that they should be able, from now on (because unfortunately the date of the Court's entry into force cannot be reviewed), to submit cases to the Court on the basis of information gathered by them.

Recommendations :

The following recommendations came out of these discussions:

- Train HRD in the workings of the ICC because they are not well enough armed today to lobby their governments effectively to ratify the Treaty of Rome, or, where their government has already signed the treaty, to use the ICC effectively. This training could be provided or encouraged by Frontline or by other African NGOs that have acquired experience in this area in their country and could share their experience with others using regional NGO networks.

- Make the civil population more aware of the ICC (because HRD need its support to press their governments to ratify the treaty of Rome), by preparing documents accessible to the general public which explain the Treaty of Rome and the workings of the ICC, if possible in the local language, so that the information does not remain the preserve of an elite. Help from Frontline or other organisations to produce such documents (including their translation) would be very useful.

- Train HRD to collect information, in particular regarding the precautions which must be taken to keep evidence safe, not to put themselves or witnesses in danger and to send this evidence to the ICC prosecutor as part of a complaint to the Court (recommendation made by Judge Maureen Harding Clark).