Human Rights Watch (Washington, DC)

15 November 2012

Africa: Letter to ICC Prosecutor On the Court's Relationship With Africa

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Fatou Bensouda

Prosecutor

International Criminal Court

The Hague, the Netherlands

Dear Prosecutor,

We, the undersigned African civil society organizations and international nongovernmental organizations with a presence in Africa, write to congratulate you on your recent appointment as Prosecutor of the International Criminal Court (ICC). The Office of the Prosecutor (OTP) is a cornerstone of the ICC and we have confidence that it will benefit from your skills, experience, and demeanor. We are looking forward to your leadership and guidance in the work of the office.

As you know, a critical challenge for the OTP, and the ICC more generally, is its relationship with Africa, and particularly the African Union (AU). Many of our organizations campaigned for the establishment of the ICC. Over the past several years we also have engaged in collective advocacy to counter backlash against the ICC from some African leaders, which has emanated largely from the AU following ICC arrest warrants for the Sudanese president. Our organizations, which are based in many of Africa's capitals, have issued group declarations, news releases, and analyses on shared concerns such as the need for an ICC liaison office with the AU in Addis Ababa and AU decisions calling for non-cooperation with the ICC. We have worked closely with African media to draw attention to anticipated travel by al-Bashir to countries that should arrest him, which has sometimes contributed to canceled visits, and to provide a more balanced view on Africa's relationship with the ICC in news stories.

Despite tensions between the ICC and the AU, there also have been recent indications of the more positive view of the ICC among African governments. As you know, Malawi's new president, Joyce Banda, made it clear in May 2012 that Malawi would fulfill its ICC obligations and arrest al-Bashir if he attended the African Union Summit there. Other states-including Botswana, South Africa, Burkina Faso, and Niger-also have reaffirmed publicly the need to arrest ICC suspects on their territories.

We believe these developments reinforce that opportunities exist for the OTP to work with African governments on promoting a principled, supportive relationship between the AU and the ICC. In this context, we would like to make several recommendations for your work, which we believe will help promote the court's effective functioning and work in Africa. These are the need for:

1. A more proactive approach to explaining the independent character of the OTP and the parameters under which the ICC can and cannot act in relation to different country situations.

In our experience, too often the OTP, and the ICC more generally, is seen as being responsible for decisions that are in fact out of its control. This is especially the case for action or lack of action by the United Nations Security Council to refer situations involving non-states parties to the court. As you know, some African leaders have repeatedly criticized the ICC for failing to take up situations that are beyond the court's mandate. We believe this is due partly to misunderstandings or misinterpretations of the limitations and scope of the mandate of the OTP and the ICC.

As a key official at the ICC with responsibilities related to whether the ICC becomes involved in different country situations, we believe that you are in a prime position to provide greater clarity to the general public and African leaders on the way the court works, and what its structural and legal limitations are. We believe continually emphasizing the parameters of the ICC's role will help reduce misunderstanding and attacks on the court that seem to be fueled in part by lack of accurate information.

The second joint AU-ICC technical seminar held at the AU, along with your office's participation in the Security Council's open debate on peace and justice focusing on the ICC, the African Prosecutors Association Annual General Assembly and Conference in Namibia, the seminar on the ICC hosted in South Africa by the Institute for Security Studies, recent meetings with various stakeholders in Kenya, and the side event organized at the 11th Assembly of State Parties to the ICC on African efforts to end impunity are encouraging examples of interactions that can contribute to increasing relevant understanding. Going forward, we encourage you to give priority to clarifying the role of the ICC and how that relates to the role of the Security Council in communications with government and AU officials.

2. Actively encouraging in public and private communications the importance of complementarity and the role of African states and the AU in promoting complementarity.

As you know, complementarity is a key aspect of the ICC system. In our view, it is an important way to ensure more comprehensive accountability, including in Africa, and it also is an important element of demonstrating that the ICC is not only focused on accountability before international courts.

In the past few years, several African states have passed comprehensive ICC implementing legislation, but the overall number of states in Africa that have done so remains quite small. At last count, fewer than 10 African countries had adopted such legislation, although many countries have draft legislation before their legislatures.

We note statements you have made in countries such as Guinea and Nigeria on the importance of domestic accountability. We believe important elements that should be continually inserted into your public and private communications in countries where grave crimes have been committed, but also with the AU and all African governments, are the need to strengthen the capacity of national courts to prosecute the most serious crimes in violation of international law, including by adoption of legislation that makes the gravest crimes punishable domestically. This will not only help to promote better dynamics on ICC intervention in Africa, but the delivery of justice more widely.

3. More and improved overall outreach and public information.

Over the past 10 years, some of our organizations have substantially contributed towards the work of the court through disseminating information about the work of the OTP and the ICC generally. We believe increased outreach and public information efforts by the OTP at all levels, from the grassroots to the AU, in collaboration with the ICC's outreach office, is vital to facilitate better relations with African states and greater clarity on the involvement of the ICC in Africa.

We also encourage your office to regularly engage local civil society in countries where the ICC is conducting investigations. We believe this will enhance your office's understanding of concerns from the communities most affected by the crimes, and allow your office to make information available on country situations under the OTP's purview that is responsive to local concerns, thereby enhancing the court's impact. Your recent visit to Kenya provides a good example of such type of interaction; this was welcome and should be continued.

We hope these reflections and recommendations are useful, and we wish you the very best in leading the court to greater achievements and in particular towards supporting the role of the OTP in undertaking its functions.

Sincerely,

Association Congolaise pour l'Accès à la Justice, Democratic Republic of Congo

Association pour les Droits de l'Homme et l'Univers Carcéral, Democratic Republic of Congo

Centre for Accountability and Rule of Law, Sierra Leone

Children Education Society, Tanzania

Club des Amis du droit du Congo, Democratic Republic of Congo

Coalition Béninoise pour la Coalition pour la Cour Pénale (CPI), Benin

Coalition Burundaise pour la CPI, Burundi

Coalition Congolaise pour la CPI, Democratic Republic of Congo

Coalition for the International Criminal Court, with offices in Benin and the Democratic Republic of Congo

Coalition Ivoirienne pour la CPI, Côte d'Ivoire

Human Rights Watch, with offices in the Democratic Republic of Congo, Kenya, Rwanda, and South Africa

International Commission of Jurists, Kenya

International Crime in Africa Programme, Institute for Security Studies, South Africa

Legal Defence and Assistance Project, Nigeria

Ligue pour la Paix, les Droits de l'Homme et la Justice, Democratic Republic of Congo

Media Foundation for West Africa, Ghana

Nigerian Coalition on the ICC, Nigeria

Southern Africa Litigation Centre, South Africa

Vision Sociale, Democratic Republic of Congo

West African Bar Association, Nigeria

  • The signatories are among the most active members of an informal network of African civil society organizations and international organizations with a presence in Africa who have been working on Africa and the International Criminal Court.

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