. 27
( 54 .)


NGO CICC, The Rome Treaty Conference Monitor (1998), 1.
NGOs “ Advocates, Assets, Critics, and Goads

daily digest of events called On The Record, which the CICC helped
distribute but did not write.15 The Inter-Press Service, a nonpro¬t jour-
nalists™ association with NGO consultative status at UNESCO, published a
newspaper called Terra Viva supported by contributions from the European
Union through the NGO No Peace Without Justice (NPWJ) and the CICC,
in which the CICC Monitor was an insert.16 These helped maintain
momentum in the negotiations and enabled state representatives to know
what was going on in areas other than those in which they were directly
involved. The daily updates also served as a running ˜˜straw vote™™ on the
major topics of the conference, enabling in particular the smaller and like-
minded states to recognize the extent of their agreement even as the more
powerful states sought to reopen areas of negotiation and divide opposition
(Chapter 3).
Some state representations recruited NGO personnel to be members of
their delegations, so in some cases NGO positions became state positions.
The CICC™s innovative use of electronic communications enabled it to
become the fastest and most comprehensive source of information to
Conference participants. Observers and participants agreed in retrospect
that the NGO role at the Statute Conference was more in¬‚uential in the
progress of the Conference than had NGO participation been at any prior
large international negotiation. CICC convener Bill Pace emerged as one of
the major founding in¬‚uences of the Court.
The ¬nal Rome Statute strongly re¬‚ected NGOs™ efforts although the
NGOs didn™t get everything they wanted. For example, while most of the
participating NGOs and a majority of states were sympathetic to arms
control objectives being pursued by the ˜˜Peace Caucus,™™ a coalition of
groups seeking to criminalize the use of weapons of mass destruction and of
landmines, the clear rejection of this position by the members of the
Security Council “ the nuclear weapon states “ ultimately made it an
unattainable objective.17 Because human rights organizations didn™t want
the negotiations to collapse, they were willing to let the weapons issue go,
but they pressed hard to create a highly independent prosecutor and a Court
as free as possible from future Security Council control.
A coalition of women™s groups pushed successfully to focus the new
court on the victimization of women. The Women™s Caucus for Gender

Ibid., p. 3.
Inter-Press Service, Terra Viva (1998), 2.
Burroughs and Cabasso, ˜˜Confronting the Nuclear-Armed States in International
Negotiating Forums: Lessons for NGOs™™ (1999), 470“4.
150 Building the International Criminal Court

Justice had been founded at the February 1997 Statute Conference
Preparatory Committee meeting. From a small group of organizations, the
Caucus grew to hundreds of members from all over the world by the time of
the Statute Conference itself, and the Caucus joined the CICC steering
committee.18 The Caucus brought gender issues into the mainstream of the
CICC™s aims and was represented consistently by a 12- to 15-person team at
the Rome Conference, among the hundreds of NGO representatives.19
Women™s advocacy groups had accomplished major breakthroughs in both
the ICTY and the ICTR in the few years prior to the Statute Conference during
which the tribunals™ trials had begun. Building upon the Yugoslavia and
Rwanda tribunal precedents (Chapter 2), the Women™s Caucus infused gender
concerns throughout the Statute. In addition to writing gender crimes20 into
the Statute as crimes against humanity and war crimes, the ASP is to elect
judges including ˜˜a fair representation of female and male judges™™21 and
judges having legal experience including with violence against women or
children.22 The Prosecutor is instructed to appoint advisers with legal expertise
including sexual and gender violence and violence against children,23 and the
Registry™s Victims and Witnesses Unit is to include staff with expertise in
trauma, ˜˜including trauma related to crimes of sexual violence.™™24
At the Statute Conference, some NGOs were concerned that the gender
focus could support an agenda antithetical to values upheld by the Catholic
Church, Muslim countries, and ˜˜pro-family™™ organizations. They feared
that the sexual crime de¬nitions might appear to legalize abortion. Their
opposition to the gender crimes de¬nitions forced a painstakingly negoti-
ated compromise that inserted into the Statute a clause noting that the
de¬nition (of enforced pregnancy) ˜˜Shall not in any way be interpreted as
affecting national laws relating to pregnancy.™™25 There was considerable
wrangling as well over terminology that these groups feared might lead to
some implied approval of other than heterosexual gender identities, so
under the crimes against humanity de¬nitions, a clarifying paragraph was
included that stated: ˜˜ ˜Gender™ refers to the two sexes, male and female,

Glasius, op cit., 78“81.
Ibid., 80“1.
Statute Article 7.1(g), ˜˜rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization or any other form of sexual violence of comparable gravity,™™ and
similar language in 8.2(b)(xxii), 8.2(e)(vi).
Statute Article 36.8(a)iii.
Statute Article 36.8.b.
Statute Article 42.9.
Statute Article 43.6.
Statute Article 7.2(f).
NGOs “ Advocates, Assets, Critics, and Goads

within the context of society. The term ˜gender™ does not indicate any
meaning different from the above.™™26
In addition to including women™s concerns in the Statute, NGOs pur-
suing new justice objectives focused more widely on the welfare of victims
and witnesses. Article 68, ˜˜protection of the victims and witnesses and their
participation in the proceedings,™™ was a major victory that built upon the
lessons learned from the Yugoslavia and Rwanda tribunals. The Court is
instructed to protect witnesses and victims involved in its procedures
and, drawing on the civil-law tradition, establishes that the Court ˜˜shall™™
permit victims™ and witnesses™ ˜˜views and concerns to be presented and
considered™™ in its proceedings.27
Another area in which NGOs exerted tremendous effort at the Confer-
ence was in bolstering the majority of countries™ drive for a highly inde-
pendent ICC, free from the need for the UN Security Council to bring it into
action. NGOs generally supported Germany™s proposal that would have
amounted to universal jurisdiction. As described in Chapter 3, the NGOs
and most like-minded states sought a jurisdictional regime under which the
Court would have been empowered to prosecute any suspected perpetrator
of the crimes de¬ned by the Statute. Since the United States, in particular,
sought an ICC that would only be triggered by a Security Council resolu-
tion, states seeking to gain U.S. support for the Statute sought to compro-
mise, which led to a more limited jurisdictional regime.


With completion of the Statute, the NGOs remained highly engaged. CICC
members continued to pursue discussions and negotiations in the Prepara-
tory Commission as it developed the Rules of Procedure and Evidence and
the Elements of Crimes. They pushed for states to support the emerging
organization™s budget. They continued national campaigns for states™ sig-
nature and rati¬cation of the Statute, and urged the states that had joined to
develop and adopt implementing legislation for their domestic legal codes.

Promoting the Rome Statute and Staf¬ng the Court
Once the ICC came into being, the NGOs that had expended such huge
energy to create the Court believed further effort would be needed for it to

Statute Article 7.3.
Statute Article 68.3.
152 Building the International Criminal Court

succeed. The theory of norm cascades and tipping points may imply
irreversibility; however, real organizations can fail; states™ commitments
can waver, wane, or evaporate; and the organization™s resources could be
supplemented by NGOs™ efforts. Even though political support for the ICC
among its members is fairly solid, states still guard their sovereignty jeal-
ously, and they have rival priorities as they calculate their foreign policies
and ¬nancial commitments. NGOs can be advocates for the Court in ways
that Court of¬cials can™t: They campaign for states to accede to the Statute,
they push for legislation in member states to bring their laws into confor-
mity with ICC obligations, and they can urge the Assembly of States Parties
to expand the ICC™s budget. Connecting at an operational level with the
Court, they provide information to the Of¬ce of the Prosecutor, assist the
Court™s outreach efforts, and bring local people into contact with the Court
either directly or through legal procedures such as helping them to petition
the Court for of¬cial victim status.
NGO personnel are in close contact with the Court at policy and oper-
ational levels. Court of¬cials seek both to gain from the knowledge and
ideas of the NGOs and to protect the Court™s freedom of operation. NGO
of¬cials are sometimes critical of what they see as insuf¬ciencies or failings
of the Court, but in these early years, they have been reluctant to criticize
too stridently as they seek to give the ICC and its of¬cials time to consol-
idate the organization and to develop its operations.

Advocating Adherence
The CICC and its members, notably the Parliamentarians for Global
Action, advocate state adherence to the Rome Statute by arranging infor-
mational seminars and national and regional meetings of parliamentarians,
other NGOs, legal experts, and local leaders. As the rate of new adherences
declined, the CICC inaugurated a project targeting a new state each month
to be the recipient of focused efforts to promote awareness of, and action
on, the Rome Statute. In fall 2005, Mexico became the 100th member of
the Rome Treaty, despite adverse pressure from the United States. By fall
2006, the number had grown to 104, with new members St. Kitts and
Nevis, Comoros, Montenegro, and Chad.28 Rati¬cation is only one of the
CICC™s objectives, however. Even when a state has rati¬ed the Statute,
more steps are necessary to bring it fully into effect.

NGO CICC, CICC Web site, ˜˜States Parties to the Rome Statute of the ICC, According to
the U.N. General Assembly Regional Groups.™™
NGOs “ Advocates, Assets, Critics, and Goads

To cooperate with the Court, a state that has joined the Statute needs to
have legal authority to transfer arrested individuals to the Court. This
means the crimes subject to Court prosecution generally must be crimi-
nalized explicitly in domestic law, so that the arrest of a suspected indi-
vidual will fall under the authority of national law enforcement of¬cials.
Similarly, for states to ful¬ll their side of the complementarity bargain “ in
which suspects are to be tried by the Court only in the event that states with
jurisdiction prove unwilling or unable genuinely to prosecute “ states must
have the legal and institutional capacity to carry out such prosecutions on
their own.
So little is known in most countries and their legal establishments about
the Rome Statute and the Court that there is tremendous scope for infor-
mational activities. As employees of an international organization who are
of¬cially nonpolitical, ICC of¬cials do not proselytize on behalf of the
Court,29 and the ICC™s own of¬cial outreach activities are aimed at states
where the Court is involved. Although Court of¬cials™ availability may
decline as courtroom activities increase, the Prosecutor, Registrar, Presi-
dent, judges, and top staff were traveling frequently in the ICC™s early years
to training and information sessions in member and nonmember states,
usually sponsored by academic institutions, legal organizations, and NGOs
and frequently aided by CICC coordination. The NGOs thus bear the
organizational burden for sponsoring and organizing such meetings, and
ICC of¬cials can appear as providers of information rather than as advo-
cates. The NGOs™ involvement also helps replace the possible impression
that the ICC people are self-important and condescending outsiders with
the friendlier image that they come at the behest of NGOs seeking with
local people to expand human rights and rule-of-law initiatives.
In addition to the ICC staff, an international group of academic and legal
experts, many of them participants at Rome and af¬liated with NGOs, also
circulate to seminars for legal professionals, legislators, scholars, and acti-
vists helping to work on draft legislation, sharing model legal codes with
national authorities in states that have signed the Statute, and engaging
of¬cials in countries considering signature and/or rati¬cation in discussion
about what the domestic legal requirements and rami¬cations will be.30
NGOs have also led in efforts within the United States to counteract
American hostility to the Court. As U.S. opposition to the Court congealed

For example, Regional Human Security Center, Regional Workshop, ˜˜The International
Criminal Court and the Arab World™™ (2005).
154 Building the International Criminal Court

under the Bush administration (see Chapter 6), CICC members denounced
U.S. pressure against signatory and potential signatory states intended to
thwart Statute rati¬cation or force acceptance of U.S. bilateral immunity
agreements. U.S. NGOs dispute government allegations that the Court is a
threat to U.S. interests.31

Electing Court Of¬cials
During the 2003 process of nominating and electing judges (and during the
2006 second round of elections), the CICC organized meetings between
NGOs and those running for judgeships. Following those meetings, NGO
representatives communicated to national delegations about their pre-
ferences and priorities, quite likely in¬‚uencing the votes that were eventu-
ally cast. The Women™s Caucus again appeared in¬‚uential. In the ¬rst round
of balloting in 2003, six women and one man emerged as the ¬rst elected
judges. The single victorious male candidate described his campaigning as
having been focused largely on NGO meetings, in contrast to some other
competitors who spent no time with the NGOs. He believed that his
selection was also aided by his experience in his home country as the head
of a children™s welfare-oriented NGO.32 It took twenty-nine more ballots to
select the rest of the Court™s eighteen judges.
In addition to his credentials as a prosecutor of the Argentine generals
implicated in the ˜˜dirty war™™ of the 1970s, Chief Prosecutor Moreno
Ocampo was the founder of an anticorruption NGO in Argentina and was a
board member of the international anticorruption NGO Transparency
International. As nominee for Chief Prosecutor, he met in New York with
NGO representatives prior to his election-by-acclamation by the Assembly
of States Parties.
The speakers list at the installation of the new Chief Prosecutor also
shows the importance of NGOs to the ICC. The speakers included President
of the Assembly of States Parties H. R. H. Prince Zeid Ra™ad Zeid Al
Hussein of Jordan; Court President H. E. Judge Philippe Kirsch; the new
Chief Prosecutor, Mr. Luis Moreno Ocampo; former Nuremberg prosecu-
tor and long-time advocate of an international criminal court Professor of


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( 54 .)