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Law Benjamin Ferencz; and three NGO representatives: Secretaire generale
´ ´´


31
For example, see NGO CICC Web site, ˜˜US and the ICC,™™ and the Web site for the
American Non-Governmental Organizations Coalition for the International Criminal
Court.
32
Interview.
155
NGOs “ Advocates, Assets, Critics, and Goads

du Comite des victimes des Khmers Rouges Mme. Billon Ung Boun-Hor;
´
Secretary General of the Pan African Lawyers Union Mr. Getachew Kitaw;
and NGO Coalition for the International Criminal Court Convener Pace. It
has become routine as well for Pace to address the plenary session of the
annual meeting of the Assembly of States Parties.


THE NGOs AND ICC OPERATIONS

Like the ICC, NGOs collectively straddle the dilemmas of reconciling jus-
tice and peace, international legal norms and local political expediencies,
prosecutorial and victim orientations, long- and short-term perspectives.
The ICC Statute is a universalist document espousing global norms. The
crimes that the Court prosecutes are crimes that may shock the conscience
of humankind, but they are visited upon real people in actual places. There
is no guarantee that upholding the international norms necessarily maxi-
mizes local interest, at least in the short spans of potential victims™ lives. As
the Court began pursuing investigations and prosecutions, NGOs became
vital assets to its operations and constructive, but critical, commentators on
its behavior.
NGOs had extensive experience in the domestic and international con-
texts in which the ICC began operating. While an ICC-centered view might
regard the NGOs as adjuncts to the Court™s operations, the perspective
from the NGOs™ standpoint is that the ICC is a new international organi-
zation trying to ¬t into a large NGO and international governmental
organization community. The objectives of the NGOs include shaping and
ultimately promoting the ICC, but their activities predate the ICC, and their
mandates are generally quite different than those of the Court. Promoting
human rights, women™s issues, victims™ rights, peace, or justice can all be
connected with the ICC™s mandate, but they are not bounded by it. Simi-
larly, the ICC™s mandate is not coextensive with any NGOs because it is
ultimately a judicial institution.


Initiating Referrals
Under the ICC Statute, anyone can send a letter to the Prosecutor calling for
investigation into suspected crimes. The Statute requires the Prosecutor™s
Of¬ce to screen these submissions and respond to them. The communica-
tions about suspected crimes can come from government representatives,
NGOs, or individuals. Long before the ICC came into being, human rights
and humanitarian NGOs had been collecting the kinds of information
156 Building the International Criminal Court

upon which such letters can be based. Now NGOs are major sources of
information for the ICC Prosecutor.
The Of¬ce of the Prosecutor reported on February 10, 2006, that it had
received 1,732 communications from individuals and organizations, three
referrals from states parties to the Statute, and one referral from the UN
Security Council. The 1,732 messages, the OTP said, came from individuals
or groups located in at least 103 countries. With 60 percent of the messages
coming from the United States, Great Britain, France, and Germany, it can be
concluded that many originated with human rights NGOs. Crimes were
alleged to have taken place in 139 countries.33 (The OTP deemed 20 percent
[346 communications] to be worthy of further analysis.)34


Providing Local Contact
Despite the creation of regional of¬ces (by mid-2006, there was one for
Uganda in Kampala and one in Kinshasa and one for the Congo in Ituri),
the ICC has very little continuing presence in the situation areas. In con-
trast, the local NGOs are part of the scene, working not only (and in many
cases not even primarily) on international justice matters but also engaging
in peace, mediation, humanitarian, development, and other kinds of efforts.
The Court depends upon local NGOs and leaders for contact with local
populations. In efforts to explain the ICC™s role and rules and the oppor-
tunities for victims to make their views known, Registry Public Information
Of¬ce personnel and Victims Participation and Reparations Section of¬cials
hold seminars for local leaders and legal professionals, meet with local
NGOs, and develop information for use in radio and print media to spread
the word about the Court. These events are often planned and presented in
cooperation with local NGOs and include NGO representatives as conduits
to local groups. Much as there can be dif¬culties in distinguishing legitimate
journalists from others, the Court faces challenges in picking trustworthy
and credible local intermediaries and information sources. CICC regional
representatives can sometimes help the ICC to screen organizations to
determine which are legitimate and most likely to be useful.
These NGOs, community organizations, and local leaderships vary in
their views of the ICC, and their attitudes both re¬‚ect and shape local
responses to the Court as it pursues its activities. ICC of¬cials are aware of

33
ICC, Of¬ce of the Prosecutor, ˜˜Update on Communications Received by the Of¬ce of the
Prosecutor of the ICC™™ (2006).
34
Ibid.
157
NGOs “ Advocates, Assets, Critics, and Goads

the dif¬culties that the ICTR and ICTY experienced in their relations with
local populations and of the strong suggestions from NGOs and others that
vigorous outreach and local representation programs be developed in the
situation areas. Exhortation and implementation, however, are very dif-
ferent things. For the ICC as an organization with limited resources, bud-
getary trade-offs must be made. So far, the budget lines for outreach and
regional of¬ces, as approved by the Assembly of States Parties, have been
small. In the fourth ASP in the fall of 2005, for example, one of the con-
tentious issues was whether to permit the Registry to expand its outreach
personnel component, adding eleven staff people including eight who would
work at ¬eld of¬ces. The Committee on Budget and Finance targeted this
line item for reduction in the ICC™s proposal, recommending only ¬ve for
¬eld activities. In the end, the Registry budget was reduced as recommended
by the CBF but left with the ¬‚exibility to reprogram resources from other
budget components into outreach. At the next ASP, in November 2006,
under pressure from NGOs and despite a similar recommendation from the
CBF, the ASP voted to signi¬cantly expand the outreach budget from e1.4
million in 2006 to e2.7 million in 2007 (for all public information and
documentation section expenditures).35
Serious contradictions are built into the ICC™s operations at the local
level. NGOs and local organizations pursue a broad spectrum of activities
in their own societies, so NGOs exist on most sides of these contradictions.
A primary divide is between peace-oriented and justice-oriented NGOs. A
second dilemma is how the ICC can gain government cooperation but
appear unbiased. NGOs and local organizations might be thought of in this
context as pressure groups as well as resources for the ICC; the problem for
the organization is to be responsive and convincing enough that the NGOs
do not oppose, and preferably assist it, and that the Court™s legitimacy as an
organization is increased at local and international levels.
Acting simultaneously at these two levels is itself fraught with problems.
International human rights”oriented organizations, such as Human
Rights Watch and Amnesty International, call for suspected perpetrators of
statutory crimes to be indicted and prosecuted. They advocate a narrow
understanding of the Statute™s criteria under which the ˜˜interests of justice™™
might be cited as a reason not to prosecute.36 In contrast, some local NGOs

35
Boyle, ˜˜ICC Outreach Budget Gets Big Boost™™ (2006).
36
Amnesty International, ˜˜Open Letter to the Chief Prosecutor of the International
Criminal Court: Comments on the Concept of the Interests of Justice™™ (2005); Human
Rights Watch Policy Paper: ˜˜The Meaning of ˜The Interests of Justice™ in Article 53 of
the Rome Statute™™ (2005).
158 Building the International Criminal Court

view situations very differently. They claim, for example, that for the
northern Uganda peace negotiations to succeed, the government™s offer of
amnesty to Lord™s Resistance Army ¬ghters must be upheld. They charge
that when the ICC issued arrest warrants against leaders of the LRA, it
acted against local interests (see Chapter 7).
To operate in a country requires some degree of cooperation from the
government. The Chief Prosecutor solved this problem in Uganda and the
Congo by gaining referrals from those governments to pursue investiga-
tions. But those agreements make the ICC appear to be working with the
government in con¬‚icts in which government forces and personnel are also
suspected by local populations of engaging in criminal activity. As a con-
sequence, in both Uganda and the Congo, the ICC sought NGO assistance
in reaching out to local populations and has been criticized by the same
organizations for disrupting peace efforts or neglecting government-related
crimes. In the Congo, various local organizations pressed the ICC for
additional (or different) arrests following the arrest and transfer from DRC
custody in Kinshasa of Union of Congolese Patriots leader Thomas Lubanga
Dyilo to stand trial in The Hague (see Chapter 7). In Uganda, in addition
to some calls for the ICC to suspend its activities and/or respect
the government™s amnesty offer, some groups called for the Prosecutor to
demonstrate impartiality by issuing warrants against the government
Uganda People™s Defense Force (UPDF) as well as the rebel LRA forces.


Reconciling Divergent Agendas
The International Center for Transitional Justice (ICTJ), in collaboration
with the Berkeley Human Rights Project, carried out research in northern
Uganda to determine what local people really wanted in connection with
peace and justice efforts. They found complex answers that favored both
prosecution and conciliation; as a consequence, they recommended that the
ICC continue its prosecution efforts but expand its outreach program to
explain to the local people what its mandate is and how prosecutions were
intended to promote peace.37
The more the ICC can focus and clarify its objectives, the more clearly
it should be able to explain its decisions. However, since its mandate is
broad and not entirely coherent, this remains a dif¬cult challenge, one
compounded by the limits of its resources, the dif¬culty of outreach in the

37
International Center for Transitional Justice, ˜˜New Study Finds Ugandans Favor Peace with
Justice™™ (2005).
159
NGOs “ Advocates, Assets, Critics, and Goads

areas of its operations, and the complexity of the situations in which it is
involved. Again, it seeks NGO help to resolve the problem. It organizes
visits to The Hague by local leaders and NGO representatives from situa-
tion states. The visitors typically also spend time with international NGO
people organized by the CICC.
The information ¬‚ow needs to work in the other direction too “ from
the local areas back to the ICC “ in order for full implementation of the
Statute™s mandate for ICC attention to victims and witnesses. NGOs have
been central to this process. For example, in the DRC situation, af¬liates of
the FIDH held local meetings to explain to local groups the ICC in general,
and victims™ rights in particular. As a result, some victims asked to partic-
ipate in the Court™s proceedings regarding the Congo. Even before the ICC
Registry had completed work on a form for victims to use to seek partici-
pant status, the FIDH assisted a group of ¬ve victims to petition the Court
for representation. The victims (whose numbers grew as the case moved
toward the fall 2006 con¬rmation hearing) were thereafter represented by a
lawyer, so FIDH did not take part in actual Court proceedings. As described
in Chapter 7, the submission will set precedents for the form and timing of
victim representation at the ICC, once disagreements between the Prose-
cutor and the Pre-Trial Chamber are worked out, possibly through the
appeals process.


Ensuring the High Quality of Justice
The ICC Statute has very little to say about the defense of suspects, making
the Registry responsible for defense counsel, while the Chambers guard due-
process rights and the presumption of innocence. The Registrar created a
Division of Counsel with sections for defense and for victims representa-
tion. Both sections depend upon NGOs to help carry out their responsi-
bilities.
Concerned about the lack of any structure to provide an ˜˜equality of
arms™™ (a defense strong enough to balance the Prosecutor™s capabilities),
Advocats sans Frontiers (ASF) and the Union Internationale des Advocats,
´
as well as representatives of national bar associations came together in 2002
to create the International Criminal Bar (ICB) to make available counsel for
defendants before the two ad hoc tribunals and, especially, the ICC. The
ICB was founded on June 15, 2002, at the Conference of Montreal. It held
its ¬rst general assembly in Berlin on March 21 and 22, 2003, at which 400
people from more than 50 countries attended. Its governing council includes
representatives from ¬ve continents and represents all of the world™s legal
160 Building the International Criminal Court

systems; four members are regional coordinators for Asia, Latin America
and the Caribbean, Sub-Saharan Africa, and the Arab World. The ICB™s
members include national and regional bars, the largest international
organizations of counsel, and individuals who have been deeply involved in
the development of international criminal law. As its Web site proclaims,
˜˜Through the membership of non-governmental organizations, the ICB has
the bene¬t of the experience and perspective which these groups have
developed through many years of working towards the creation and
implementation of the ICC.™™38
The ICB presents joint training courses with the ICC for counsel inter-
ested in practicing before the Court, and it assists the ICC in developing
lists of counsel authorized for that practice. The Court can assign ˜˜duty
counsel™™ from its lists to defendants until they either hire their own lawyers
or choose an alternative from the Court™s list, and it also maintains a list of
counsel available for victim representation.


T H E E V O L V I N G N G O “ICC R E L A T I O N S H I P

From the time of the Preparatory Committee™s (post-ILC 1994 draft Stat-
ute) work through the ¬rst year of the Court™s existence, the group of state
representatives, NGO personnel, and Court of¬cials involved with negoti-
ating, planning, and beginning to operate the ICC was remarkably stable.
An identi¬able community, ¬rst centered in New York, but then adding The
Hague as a second locus of activity, negotiated and began to implement the
consensus that developed over the period of their involvement. In contrast,
by late 2005, the NGO community had greater personnel continuity than
either state representatives to the ICC or, because of its rapid recent growth,
the Court itself. Once the Court came into being, located in The Hague, the
state representations began to be subject to the more normal rotational
effects of diplomatic service postings “ people long involved with the ICC™s
creation as government representatives moved to other activities, and dip-
lomats in The Hague were assigned to deal with the ICC and transferred the
portfolio to their successors as they shifted to other posts.
Early Court employees left for other jobs, and many new Court
employees were hired from outside of the community. NGO personnel

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