Transnational Actors and International Criminal Law - IS MUNI

MASARYK UNIVERSITY FACULTY OF SOCIAL STUDIES

Department of International Relations and European Studies

Transnational Actors and International Criminal Law : Study of NGOs' influence on formation of International

Criminal Court and its jurisdiction

Master Thesis

Author: Alona Sydorenko (UČO 329314)

M.A. in European Politics

Spring 2010

Supervisor: JUDr. Ivo Pospíšil, Ph.D.

Brno, 2010

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I hereby declare that this thesis I submit for assessment is entirely my own work

and has not been taken from the work of others save to the extent that such work has

been cited and acknowledged within the text of my work.

Date: Signature

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Acknowledgment

As the author of this work, I would like to express my gratitude to my supervisor

JUDr. Ivo Pospíšil, Ph.D. for his patience, assistance and encouragement throughout the

thesis writing process. Also I’d like to express my appreciation to the International

Visegrád Fund for giving me the possibility to study in Masaryk University. Special

thank goes to Egor Kudrin for his assistance and suggestions, which were useful while

writing this work, and to all my friends and my family for the moral support.

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Abstract

The International Criminal Court (ICC) was established on 1 July 2002 after

ratification by 60 states of the Rome Statute, with which the Court is governed. The ICC

is the first permanent, treaty based, international tribunal, which tries for the most

serious crimes to the international community, which are the genocide, crimes against

humanity and war crimes. Its development was followed and facilitated by the

Nongovernmental Organizations Coalition for the International Criminal Court (further

the Coalition or the CICC), formed in 1995, when the idea of creation of permanent

international criminal court was received its second life.

The Coalition became an important figure in the process of the ICC creation, and

participated in all phases of its progress. The aim of this work is to analyze the CICC

contribution into the ICC and to find out its role in the Courts everyday work.

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Table of Contents

List of Acronyms………………………………………………………………………...6

Introduction ……………………………………………………………………………...7

Chapter I

1.1. NGOs in democratic mode ……………………………………………………10

1.1.1. The role of NGOs in global politics……………………………………10

1.1.2. Human rights non-governmental organization in international

politics…………………………………………………………………….22

1.2. International Criminal Court…………………………………………………..31

1.2.1. Historical aspect of creation of ICC and its structure………………….31

1.2.2. The mandate of International Criminal Court………………………….42

Chapter II

2.1. The NGO Coalition for the ICC in the making of ICC………………………..49

2.1.1. The background of the CICC; its organizational purpose and logistics..49

2.1.2. The process of negotiations and ratification (1995-2002)……………...58

2.1.3. Life after birth of the ICC: transformation of priorities and turning points

in the CICC mission………………………………………………………72

2.2. The interaction between NGOs and the ICC in investigation and prosecution of

crimes………………………………………………………………………….78

2.2.1. Providing information…………………………………………………..78

2.2.2. NGO assistance to victims and witnesses………………………………86

Conclusion……………………………………………………………………………...91

Bibliography……………………………………………………………………………94

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List of Acronyms

ASP – Assembly of States Parties CICC – Coalition for the International Criminal Court DipCon – UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court DRC – Democratic Republic of the Congo ECOSOC – Economic and Social Council FAO – Food and Agriculture Organization of the United Nations ICC – International Criminal Court ICTR – International Criminal Court for Rwanda ICTY – International Criminal Tribunal for Former Yugoslavia IGO – intergovernmental organization ILC – International Law Commission LMG – like-minded group MONUC – a French acronym for Mission de l’Organisation des Nation Unies en République (English: Mission of the United Nations Organization in the Democratic Republic of Congo) NGO – nongovernmental organization NPO – non-profit organization OTP – ICC Office of the Prosecutor PrepCom – Preparatory Committee U.S.S.R. – Union of Soviet Socialist Republics UN – United Nations UNHCR – the UN High Commissioner for Refugees US – United States WFP – World Food Program

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Introduction

NGOs are playing an important role in every sphere of our live today. They

became the voice of those who cannot rise by themselves and talk, or those whose

voices are not heard. They are the voice of society. It is not a new phenomenon,

however today it is more important and influential than any time in the history of

humanity. They stand up to defend the position of people and to provide the guaranty

that society will is fulfilled on the highest level of governance.

When the human rights received their attention among the circles of governors of

developed states and became on of the agenda of every powerful and respected state,

which promoted human rights not only on its own territory, but went as far as states of

the third world, NGOs became the ardent advocators of human rights enforcement all

over the globe. Promotion of human rights in the regions of undeveloped states and

states in the transition phase is slow and has a range of challenges, and despite all the

attempts to enforce the rule of law to stand on the guard of the humanity, which was

thought to be provided by numbers of Charters, Treaties, membership in

intergovernmental organizations which promoted human rights, the most unstable

regions are still absorbed by waves of flagrant human rights violations. Except,

provision of humanitarian help and facilitation to rebuild in the crisis areas, NGOs

became the defenders of those who are in need.

When the humankind faced the atrocities brought by Nazi, the Nuremberg and

Tokyo trials became the pattern of states’ concern about the human treatment. Further

military tribunals for Former Yugoslavia, Rwanda, and Sierra Leone, continued to

expose outcomes of grave and massive human rights violations. The results of attempts

to persevere enforcement of jurisdiction over grave crimes that still were common in

unstable regions of the world, the idea of international criminal court, after years of

preparation, negotiation and ratification was achieved and in 2002 the International

Criminal Court sitting in the Hague was established. Although the legal establishment

of the Court depended on states, the process of states adoption of the Rome Statute and

pre-conference preparations in major part was a merit of the NGO Coalition for the

International Criminal Court formed in 1995, slightly after the idea of the international

tribunal rose up once again after being suspended by the Cold War.

The purpose of this work lies in a detailed contemplation of the processes that

formed the role of NGOs as an important component for the ICC. This idea is actual,

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because NGOs were not only crucial in the process of the ICC creation, but are essential

in ICC’s work today, which means that they had to change their goals and instruments

in a cardinal way. Additionally, it is important to make a detailed research and to find

out which are the obligations of NGOs in the ICC functioning and to demonstrate that in

general ICC became dependant on the work of NGO; to give an overlook of NGO-ICC

cooperation during investigations and to vindicate that NGOs’ participation is

irreplaceable.

The hypothesis of this work asserts that NGOs are integral force in widening the

authority of international criminal law through engagement in establishment and

maintaining of agenda of international institutions practising international criminal law.

The practical significance of thesis is that the conducted research gives clear and

wide view on the position of nongovernmental organizations in international politics

and in international jurisdiction particularly. Gradually it was defined the level of NGOs

involvement into the ICC creation and its work since it has been established. In addition

this work enables the continuation of carried out research by further monitoring of the

work of NGO Coalition for the International Criminal Court and to trace future coups in

their mission.

The objectives of this work proceed out of the purpose:

First, to indicate sources that contain genuine information about involvement of

transnational actors, nongovernmental organizations particularly, into the process of

creation of international criminal courts and their functioning.

Second, using the analyzed materials to characterize the main functions of NGOs

gradually increasing since the initiative for creation of the international criminal court to

its establishment and its functioning.

Third, basing on the held analysis to prove that transnational actors, precisely

nongovernmental organizations, are facilitating the international tribunals to conduct its

main purposes – to carry on investigations and court proceedings – additionally

widening the courts jurisdiction and strengthening its authority.

The object of the research is relations of NGOs towards the International Criminal

Court.

The subject is role of the Coalition for the International Criminal Court before and

after creation the International Criminal Court.

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The chronological analysis of the topic of this work encompasses period from

1995 to 2010. The time limits where chosen according to the date of the creation of the

CICC and the period of its functioning, which lasts until today.

The methodological base for the thesis are works – books and articles – of famous

scholars, who made researches on the topics concerning definition of the status of the

NGO in political environment, role of civil society in the world politics, involvement of

NGOs in the policymaking processes, and NGOs’ merits in the process of creation of

the ICC, whose studies became respected worldwide. Number of scholars discussing the

role of NGOs in the prospects of the ICC directly or indirectly participated in the

process of creation, establishment and bringing into function of the ICC. Additionally, a

range of original documents concerning CICC, ICC and other tribunals – ICTY and

ICTR – as well as their publications of the Coalition devoted to the Court were

analyzed.

The main methods of the research were methods of analysis, synthesis,

classification, comparison and generalization.

The work consists of two chapters, each of which contains the structural

components – units – introduction, conclusion and bibliography.

Introduction includes purpose of the work, its actuality, practical significance,

hypothesis, objectives, methodological base and methods of the research.

The first chapter is composed of theoretical knowledge. It contains two

subchapters which enclose the definition and place of nongovernmental organizations in

the world politics; and historical aspects of the creation of the International Criminal

Court, its structure and jurisdiction.

The second chapter encloses the practical information, including the knowledge

gained after the conducted research. It is composed of two subchapters, which provide

the information on the NGO Coalition on the International Criminal Court, its mission

and structure, its participation in the pre-conference period and the Rome Conference

time itself, and its modification after the Court establishment; and give an overlook on

the interaction between the NGOs and the Court during the investigation and

prosecution of crimes, work with information and victims and witnesses particularly.

In conclusion the short outputs are given, which were acquired after the conducted

analysis.

The bibliography enlists all sources used to accomplish the pre-determined goal.

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1.1 NGOs in democratic mode 1.1.1 The role of NGOs in global politics

For nearly two centuries1 the force of the civil society voice was making its way to

reach those heights on which it is now. They designate themselves the “third sector” of

global government or, in their sublime times, “global civil society.” The other two

sectors - business and government - name them pests. Their mutual name is non-

governmental organizations or NGOs shortly.2 NGOs, also known as “private voluntary

organizations,” “citizens associations,” “civil society organizations,” and as well

increasingly called “NPOs,” an acronym for “non-profit organizations”,3 functioning in

world politics has skyrocketed.4 Their activities in re-shaping politics and economic at

not only domestic but also global levels is recognised as a phenomenon equal to the rise

of the nation-state and the end of the nineteenth century.5

The term non-governmental organizations was officially used for the first time in

the UN Charter 1945 to differ the procedures for participation by the intergovernmental

specialized agencies and by international private organizations.6 Article 71 in fact

formalized the irregular arrangements used by League of Nations to govern interactions

with NGOs.7 Although, while the term was set up and introduced into international

politics by UN Charter, no definition was provided.8

1 Steve Charnovitz, Two Centuries of Participation: NGOs and International Governance, Michigan Journal of International Law 18 (2), 1997, pp. 183-286. 2 R.C. Longworth, Activist Groups Gain Influence in Global Body, Chicago Tribune, December 1, 1999. 3 Ben Ofosu-Appiah, Making NGOs More Effective and Responsive in a Globalized World, African Path March 28, 2008. 4 Paul Wagner, Defending accountability in NGOs, Chicago Journal of International Law, 3(1), 2002, Research Library p.197 – 205. 5 Ben Ofosu-Appiah, Making NGOs More Effective and Responsive in a Globalized World, African Path March 28, 2008. 6 Peter Willetts, What is a Non-Governmental Organization? UNESCO Encyclopaedia of Life Support Systems, available at http://www.staff.city.ac.uk/p.willetts/CS-NTWKS/NGO-ART.HTM last viewed 19.04.2010. Of course, this does not mean NGOs did not exist before. Even though some scholars believe that the growth of NGOs is a phenomenon of twentieth century, it is actually possible to track the NGOs’ efficacy 200 years back. Steve Charnovitz, Two Centuries of Participation: NGOs and International Governance, Michigan Journal of International Law, 18 (2), 1997, p. 183-286. 7 Thomas G. Weiss, International NGOs, Global Governance, and Social Policy in the UN System, Globalism and Social Policy Programme, March 1999 available at http://gaspp.stakes.fi/NR/rdonlyres/3E658C34-198E-4F2D-AC72-8778870B02D7/0/gaspp31999.pdf last viewed on 07.03.2010. 8 Rachel Brett, The Role and Limits of Human Rights NGOs at the United Nations, Political Studies, 43 (1), 1995, p. 96 – 110.

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Similar to other terms extensively used in social sciences, the concept of NGO is

not clearly specified.9 In fact it is very hard to find a common definition for the term

“non-governmental organisation.” It is hard to substantiate it on a legal definition given

the wide range of NGO activities in laws, in accordance to which an NGO can have, for

example, the legal status of a charity, non-profit association or a foundation.10 The term

“nongovernmental” is what an ancient philosopher Aristotle used to call a privative

term: it establishes the determination of its cases by what they are not. In its broadest

sense, the term “nongovernmental” presents any organization or institution which fulfils

public functions but is not a part of a government of the territory where it works.11

From rather sociological approach, NGOs are defined as “self-governing, private,

not-for-profit organizations that are geared toward improving the quality of life of

disadvantaged people.”12 They do not appear to be a part of government and are not

controlled by public body. For this cause, they create opportunities of communication

and contact between households and the state which provides possibilities of concerted

action and social self-organization.13 Definition of NGOs given by Peter Willetts

characterises them as “an independent voluntary association of people acting together

on a continuous basis, for some common purpose, other than achieving government

office, making money or illegal activities.”14 The definition given by Diane Otto

emphasized NGOs’ civil and popular nature.15 She defines NGOs as “organizations that

aim to represent values and aspirations associated with peoples rather than with states,

including the promotion of human rights, gender and race equality, environmental

9 Cenap Cakmak, Civil Society Actors in International Law and World Politics: Definition, Conceptual Framework, Problem, International Journal of Civil Society Law, 6(1), 2008, p. 7 – 35. 10 Commission discussion paper: The Commission and Non-Governmental Organisations: Building a Stronger Partnership COM (2000) 11 of 18/01/2000: http://ec.europa.eu/civil_society/ngo/en/communication.pdf last viewed on 05.03.2010. 11 Norimitsu Onishni, Nongovernmental Organizations Show Their Growing Power, New York Times, March 22, 2002 available at http://www.nytimes.com/2002/03/22/world/nongovernmental-organizations-show-their-growing-power.html?scp=1&sq=NGOs%20Show%20Their%20Growing%20Power&st=cse last viewed 05.03.2010. 12 Anna C. Vakil, Confronting the Classification Problem: Toward a Taxonomy of NGOs, World Development, 25 (12), 1997, p. 2057 – 2070. 13 Peter van Tuijl, NGOs and Human Rights: Sources of Justice and Democracy, Journal of International Affairs, 52 (2), 1999, p. 493 – 512. 14 Peter Willetts, What is a Non-Governmental Organization? http://www.staff.city.ac.uk/p.willetts/CS-NTWKS/NGO-ART.HTM last viewed on 04.3.2010. 15 Cenap Cakmak, Civil Society Actors in International Law and World Politics: Definition, Conceptual Framework, Problem, International Journal of Civil Society Law, 6(1), 2008, p. 7 – 35.

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protection, sustainable development, indigenous rights, nonviolent conflict resolution,

participatory democracy, social diversity, and social and economic justice.”16

The World Bank defines NGOs as “private organizations that pursue activities to

promote the interests of the poor, protect the environment, provide basic social services,

relieve suffering or undertake community development.”17

European Commission in its “The NGO Discussion Paper” allocates common

characteristics which can be used as shorthand to refer to a range of organizations which

share them:

� “NGOs are not created to generate personal profit. Although they may

have paid employees and engage in revenue-generating activities they do not

distribute profits or surpluses to members or management;

� NGOs are voluntary. This means that they are formed voluntarily and

that there is usually an element of voluntary participation in the organisation;

� NGOs are distinguished from informal or ad hoc groups by having some

degree of formal or institutional existence. Usually, NGOs have formal statutes or

other governing document setting out their mission, objectives and scope. They are

accountable to their members and donors;

� NGOs are independent, in particular of government and other public

authorities and of political parties or commercial organizations.”18

Though it is hard to find the proper explanation of what NGOs are, it is much

easier to tell what they are not. For example, an NGO can not be organised as a political

party; it can’t be profit-making and it can’t be a criminal group, in fact it is non-violent.

NGOs originally are not presented as interest or political pressure groups. Their

functions often include creation of connection of the complex, unfamiliar world of

government to the familiar terrene of existing or appearing social and economic

groups.19

16 Dianne Otto, Nongovernmental Organizations in the United Nations System: The Emerging Role of International Civil Society, Human Rights Quarterly, 18(1), 1996, p. 107 – 141, p. 112. 17 The World Bank web page available at http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTPSIA/0,,print:Y~isCURL:Y~contentMDK:20433436~menuPK:2453409~pagePK:210058~piPK:210062~theSitePK:490130,00.html last viewed on 05.03.2010. 18 Commission discussion paper: The Commission and Non-Governmental Organisations: Building a Stronger Partnership COM (2000) 11 of 18/01/2000: http://ec.europa.eu/civil_society/ngo/en/communication.pdf last viewed on 05.03.2010. 19 Cenap Cakmak, Civil Society Actors in International Law and World Politics: Definition, Conceptual Framework, Problem, International Journal of Civil Society Law, 6(1), 2008. p. 7 – 35.

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Gerard Clarke used a seven-fold test to distinguish NGOs from variety of other

organizations proposed by Salmon and Anheier, where they argue that NGOs are:

1. “formal (i.e. they have an institutional character);

2. private (i.e. institutionally separated from government);

3. non-profit-distributing (i.e. institutionally distinct from the privat sector);

4. self governing;

5. voluntary (i.e. depending on a certain amount of voluntary effort, even if only

on board level);

6. non-religious (i.e. non-proselytising);

7. non-political (i.e. not primarily engaged in promoting candidates for electoral

office).”20

Even though it is not agreed universally on what NGOs are exactly, however there

is prevalent agreement that their numbers, influence, and reach are at unexampled

levels.21 A lot of NGOs see themselves as monitors of the world affairs, holding states,

intergovernmental organizations, multinational corporations, and other accountable to

prevailing notion.22

Since the end of the Cold War NGOs took their way on development and growth

in numbers, abilities, functions and effectiveness. In fact, the end of the Cold War gave

NGOs opportunities for activity on the global level.23 The 1990s witnessed a dramatic

increase in the involvement of NGOs in global governance.24 NGOs with international

agenda are not a novelty, however in the last two decades they have increased in

number and broadened their activities and ways in which they operate.25

20 Cited: Salamon, L. M., and Anheier, H. K. Caring sector or caring society: Discovering the non-profit sector cross-nationally), In P. G. Schervish, V. A. Hodgkinson. M. Gates, and Associates (eds.), Care and Community in Modem Society: Passing on the Tradition of Serving to Future Generations, Jossey-Bass, San Francisco, California, 1995, p.14-15 in Clarke Gerard, The Politics of NGO in South-East Asia, Routlage, 1998. p 2. 21 Derk Segaar, The Evolving Role of NGOs in Global Governance available at http://www.cic.nyu.edu/global/multilateral.html last viewed 05.03.2010. 22 Paul Wagner, Defending accountability in NGOs, Chicago Journal of International Law, 3(1), 2002, p. 197 – 205. 23 Cenap Cakmak, Civil Society Actors in International Law and World Politics: Definition, Conceptual Framework, Probléme, International Journal of Civil Society Law, 6(1), 2008 p. 7 – 35. 24 Steve Charnovitz, Two Centuries of Participation: NGOs and International Governance, Michigan Journal of International Law 18 (2). 1997, pp. 183-286. 25 Marina Ottaway, Corporatism Goes Global: International Organizations, Nongovernmental Organization Networks, and Transnational Business; Global Governance, 7 (3), 2001, p. 265 – 292.

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There is a consensus that NGOs are a curtail thing for the 1990s. However, no

consensus is found on how this happened.26 Many factors promoted their growth.

“According to Mary Kaldor, some of the factors involved include the end of the cold

war, the reduction of the welfare state, the legacy of the Reagan-Thatcher ideology of

anti-statism in international relations, the increased role of multilateral institutions

(notably the United Nations) in global governance, big ideas like Robert Putnam's on

social capital, which in turn led to the resurrection of Tocqueville's associational life,

and the success of social movements such as Solidarnost in Eastern Europe.”27

There is a number of reasons for the increased influence and number of NGOs after

the end of the Cold War:

“First, the ebbing political and military rivalry between East and West allowed for

international consensus to develop in favour of humanitarian action…. With the

growing world-wide respect accorded them, NGOs could not be so easily ignored by

countries with an eye to their international image… Secondly, diminishing superpower

competition made Western donor governments less willing to offer aid to Third World

countries as a means of exercising influence… A third reason for the ballooning

influence of NGOs in the 1990s is the greater role they assumed in determining policy,

both in Western capitals and in the United Nations. NGOs are gaining more authority in

determining US foreign policy now that the demise of the Soviet threat has loosened the

rigidity of power calculations.”28

Keck and Sikkink in book “Activists Beyond Borders” present their research from

Yearbook International Organizations since 1953 to 1993 were they tend to show the

grows of international nongovernmental social change organizations categorised by

their sphere of work. (Table 1)

26 Risto Karajkov, Who Else Will Do the Work? July 16, 2006 available at http://www.globalpolicy.org/component/content/article/176/32095.html last viewed 05.03.2010. 27 Ibid. 28 Shirin Sinnar, Mixed Blessings: The Growing Influence of NGOs, Harvard International Review, 18 (1), 1995/1996.

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Table 1: International nongovernmental social change organizations (categorized by

the major issue focus of their work)

Issue area

(N)

1953

(N=110)

1963

(N=141)

1973

(N=183)

1983

(N=346)

1993

(N=631)

Human

rights

33

30.0%

38

27.0%

41

22.4%

79

22.7%

168

26.6%

World order 8

7.3

4

2.8

12

6.6

31

8.9

48

7.6

International

law

14

12.7

19

13.4

25

13.7

26

7.4

26

4.1

Peace 11

10.0

20

14.2

14

7.7

22

6.3

59

9.4

Women’s

rights

10

9.1

14

9.9

16

8.7

25

7.2

61

9.7

Environment 2

1.8

5

3.5

10

5.5

26

7.5

90

14.3

Development 3

2.7

3

2.1

7

3.8

13

3.7

34

5.4

Ethnic unity/

Group rts.

10

9.1

12

8.5

18

9.8

37

10.6

29

4.6

Esperanto 11

10.0

18

12.8

28

15.3

41

11.8

54

8.6

Source: Margaret E. Keck, Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics. Ithaca and London: Cornell University Press, 1998, p.11.

It can be noticed from the table NGOs in different areas grew constantly starting

from the end of the WWII however, the larges leap was observed during 80s and 90s.

The number of NGOs has increased from nearly 13,000 in 1981 to more than 47,000

by 2001 according to the Union of International Organizations. Something similar was

happening to Northern NGOs which are the originally performers of international

humanitarian assistance, including the refugee and food aid programs, reciprocally, of

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the Office of the UN High Commissioner for Refugees (UNHCR) and the World Food

Program (WFP). 29

NGOs are quickly emerging as a third actor in elaboration and consummation of

macro-political and macro-economic decisions. They become the key to the evolution

and establishment of democracy. In addition, NGOs serve as an effective force of

internationalism which is able to check the power of politically strong forces –

hegemonies – like the US government or transnational corporations.30 The main NGOs’

activities are directed to introduction of new ideas, provision of information and

lobbying for policy changes.31 They reach completely different spheres of life and may

have variety of specialties starting from trade policy to environmental concerns,

democracy building to disaster relief. Some of them can be multifaceted organizations

that try to coordinate a pile of activities to endorse long-term solutions to problems that

are both chronic (poverty, disease, corruption) and acute (natural disasters). 32

Today, NGOs have greater amplitude and influence in international affairs than

ever before.33 They are having several major strengths that facilitate their work, so that they

could act efficiently and effectively:

“First of all, their small size and flexible administration allow NGOs to avoid the

complex procedures and politics that larger bureaucracies use to make decisions or

organize resources… The single, specialized focus and expertise of NGOs is a second,

related advantage, chiefly responsible for the success of groups like Amnesty

International or Human Rights Watch. NGOs can focus intensively on human rights

research and publicity, uninstructed by other agendas… A third strength of NGOs lies in

their apolitical nature and independence. Neutrality and independence, their most

important distinctions from government, give them opportunity and credibility…

Finally, the long-term grassroots involvement of many international NGOs in a country,

29 Derk Segaar, The Evolving Role of NGOs in Global Governance, available at http://www.cic.nyu.edu/global/multilateral.html last viewed 05.03.2010. 30 Walden Bello, Civil Society as Global Actor, May 2000, available at http://www.globalpolicy.org/component/content/article/176/32095.html last viewed on 05.03.2010. 31 Margaret E. Keck, Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics, Ithaca and London: Cornell University Press, 1998, 228 pp. 32 Michael Hill, “The NGO Phenomenon, Baltimor Sun, January 9, 2005, available at http://www.globalpolicy.org/component/content/article/177/31633.html last viewed on 06.03.2010. 33 Shirin Sinnar, Mixed Blessings: The Growing Influence of NGOs, Harvard International Review, 18 (1), 1995/1996.

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particularly developing ones, gave them a familiarity with the people and an expertise

that donor governments could not match.”34

“Non-governmental organizations (NGOs), informal associations, and loose coalitions

are forming a vast number of connections across national borders and inserting themselves into

a wide range of decision-making processes on issues from international security to human rights

to the environment.”35 In result, to feel in the void that can not be filled by states variety of new

transnational actors with a range of specializations for solving different specific problems

appear.36

Eizenstat, describing NGOs as “the fifth estate,” claimed that although there can arose a

range of problems with NGOs their existence is an affirmative and originative element for the

course of world affairs, since they have proven to be efficient in the formation of a more

democratic and just world.37

There are several reasons of NGOs development and their increased involvement

in international policymaking and service delivery now than two decades ago:38

1. Global and more complex nature of new problem

A lot of today urgent problems appear to become global or of regional character.

However, the lack of global regulation in these fields became incontrovertible,

which led to increase NGOs advocacy efforts

2. Collapse of public social services

As a result of the wake of world recession, financial crisis, and the prevalent

acceptance of liberalization and privatization policies, a world-wide vacuum of

1980s created as public delivery of social services gradually undermined. NGOs

faced several challenges. They had to decide whether to cooperate with states or to

pressure them; whether to form new partnerships with private companies or to or

to engage in strong advocacy efforts to press the corporate sector for more

“socially responsible” behaviour.

3. End of the Cold War; increase in democratic regimes

34 Ibid. 35 Cited: Ann M. Florini and P. J. Simpsons, What the World Needs Now? In The Third Force: The Rise of Transnational Civil Society, edited by Ann Florini, Tokyo and Washington: Japan Centre for International Change and Carnegie Endowment for International Peace, 1999, p. 3. by Cenap Cakmak, Civil Society Actors in International Law and World Politics: Definition, Conceptual Framework, Problem, International Journal of Civil Society Law, 6(1), 2008, p.10. 36 Cenap Cakmak, Civil Society Actors in International Law and World Politics: Definition, Conceptual Framework, Problem, International Journal of Civil Society Law, 6(1), 2008, p. 7 – 35. 37 Ibid. 38 Derk Segaar, The Evolving Role of NGOs in Global Governance available at http://www.cic.nyu.edu/global/multilateral.html last viewed 05.03.2010.

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In result of the end of the Cold War the number of democratic regimes increased,

which opened new lands for NGOs actions.

4. Donor incentives for the development of NGOs

The use of new bilateral, multilateral and private resources stimulated NGOs’

development.

5. Changing UN-NGOs relations and interactions

The United Nations’ decisions to begin a range of important World Conferences

and Summits through 1990s gave one more stimulus for NGOs growth and placed

the UN–NGO relations on different level.39 The UN has most openly recognized

and until today supports the need to cooperate with the non-governmental sector.40

6. Improved global communications

The possibility to use new communication technologies (telephones, e-mails and

the Internet etc.) facilitated more rapid development of NGOs than in the past. 41

NGOs have come to play very important roles on the contemporary international

arena and to provide integral voices in international discourse. NGOs are facing three

particular ways for setting their agendas – consultations, information, lobbing;

surveillance; and policymaking and decision-making. First, NGOs participation in

international regime creation has been analysed in the legal point of view that decided

which institutions would have “consultative status.” This is the number of NGOs

credited to international conferences and annual meetings of UN agencies. Second,

NGOs have insensibly provided a large number of surveillance functions, even without

formal invitation. Considering consulting, information and lobbying as well as

surveillance, it was agreed that the major sphere for NGOs influence has been global, ad

hoc conferences organized by UN. Governmental policymakers more and more

understand benefits of securing commitments for NGOs, and many UN agreements

incur different NGO fingerprint. Third, formal participation in intergovernmental

organizations policymaking and decision-making by NGOs is usually unquestionable. 42

39 Derk Segaar, The Evolving Role of NGOs in Global Governance available at http://www.cic.nyu.edu/global/multilateral.html last viewed 05.03.2010. 40 Barbara Gemmill, Abimbola Bamidele-Izu, The Role of NGOs and Civil Society in Global Environmental Governance, available at http://www.globalpolicy.org/ngos/introduction/growing-importance-of-ngos-in-the-international-arena.html last viewed 07.03.2010. 41 Derk Segaar, The Evolving Role of NGOs in Global Governance available at http://www.cic.nyu.edu/global/multilateral.html last viewed 05.03.2010. 42 Thomas G. Weiss. International NGOs, Global Governance, and Social Policy in the UN System, Globalism and Social Policy Programme, March 1999 available at

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Non-state actors, including international non-governmental organisations, provide

notable affect on world politics. They operate as advocacy networks or international

pressure groups to influence state policy, business and individual behaviour and more

and more directly implement policy. Often they do that in partnerships with

governments and/or international organisations.43 NGOs encourage setting the

international political agenda and influence state behavioural changes.44 The NGO role

on the international political agenda also makes available a particular form of world

politics collaboration between moderate states and transnational NGOs – a so called

“new internationalism.” This form of world politics provides a process model that could

be useful in current and future efforts to boost security, prohibitions, and restrictions.45

Actually, the increasing role of NGOs in policy implementation is at first-hand

tied to the decreasing capability of weak states and the decrescent availability of strong

states to intervene with public tools. NGOs more and more allow themselves to

implement policy where state power is weak or non-existent. Although they have the

possibility to influence political processes directly, thy prioritise their self-defined role

to pursue these aims in specific way – to create an image of being politically neutral

with respect to party or regime and working with anyone who occupies major positions

in the government to achieve their goals. 46

Rutherford likewise concludes that under certain conditions NGOs are able to create

international law.47 It was noted that despite the fact that the traditional method of international

law making is still predominant, NGOs have the needful capability, resources, and will to exert

“the emergence, formulation, and monitoring of international norms.”48 As a logical effect of the

intensive participation in and contribution to international law making, almost all human rights

regimes now necessarily involve NGOs.49

http://gaspp.stakes.fi/NR/rdonlyres/3E658C34-198E-4F2D-AC72-8778870B02D7/0/gaspp31999.pdf last viewed on 07.03.2010. 43 Deborah Avant, Conserving nature in the state of nature: the politics of INGO policy implementation, Review of International Studies, 30, 2004, 361–382 p. 362. 44 Kenneth R. Rutherford, The Evolving Arms Control Agenda: Implications of the Role of NGOs in Banning Antipersonnel Landmines, World Politics, 53 (1), 2000, p.76. 45 Ibid. 46 Deborah Avant, Conserving nature in the state of nature: the politics of INGO policy implementation, Review of International Studies, 30, 2004, p. 361–382. 47 Kenneth R. Rutherford, The Evolving Arms Control Agenda: Implications of the Role of NGOs in Banning Antipersonnel Landmines, World Politics, 53 (1), 2000. p. 74 – 114. 48 Marie Törnquist-Chesnier, NGOs and International Law, Journal of Human Rights, 3 (2), 2004, p. 253. 49 Welch, Protecting Human Rights in Africa: Roles and Strategies of Non-governmental Organizations, University of Pennsylvania Press, 1995 p. 48.

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There are a lot of patterns of NGOs and other civil society actors having a

significant impact on the creation of international standards and norms, which include

the UN Charter and the Universal Declaration of Human Rights. The Charter was the

first prominent reference to international human rights and the Declaration the most

authoritative document in the field of human rights which was first to note some

fundamental rights and freedoms of individuals. NGOs also played an important role in

the creation of the Covenants (International Covenant on Economic, Social and Cultural

Rights, and International Covenant on Civil and Political Rights).50 Some main

international NGOs, such as the International League for the Rights of Man and the

International Commission of Jurists, have been participating in the promotion and

initiation of those two authoritative documents.51

Though this influence is not noticeable sometimes because it is covertly exercised

via a lot of various networks in which members of conservative NGOs participate.52

Because of a narrow understanding of politics and neglect of societal dimension of

activists’ efforts politics is percepted as practice associated only with government and in

this way understanding activist efforts solely as their influence on government. Looking

from this perspective, transnational activists are exclusively global pressure groups

eager to change states’ policies or create conditions in the international system which

strengthen or lessen inter-state cooperation. All the other efforts forwarded toward

societies in general are ignored or devalued because they are not originally considered

to be political in character.

Activist organizations are not just transnational pressure groups – they are political

actors in their own right.

The major argument is that we better think of transnational activist societal efforts

through the concept of “world civic politics.” When activists work to change conditions

without providing direct pressure on states, their activities take place in civil dimension

of global civil society. However, if to watch through the state-centrist prism, where

power consists in the means available to states, and that the state system is the machine

for affecting human behaviour all over the world. In this case, NGOs became important,

50 William Korey, NGOs and the Universal Declaration of Human Rights, New York: Palgrave, 1998, p. 72. 51 Ibid. 52 Walden Bello, Civil Society as Global Actor, May 2000, available at http://www.globalpolicy.org/component/content/article/176/32095.html last viewed on 05.03.2010.

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though just because of their influence upon state behaviour. They did not affect world

affairs in their own right.

NGOs are substantial in world affairs not only because they can influence states

but also because they can change or affect the behaviour of larger groups worldwide.

They do so through manipulation of governing structures of global civil society.53

53 Paul Wapner, Politics Beyond the State: Environmental Activism and World Civic Politics, World Politics, 47 (3), 1995, pp. 311-340.

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1.1.2 Human rights non-governmental organizations in international politics

Existence and operation of non-governmental organizations nowadays presents a

substantial theoretical challenge for traditional concepts and ideas of international

relations and especially international law. NGOs definitely occupy an important niche in

the global governance, however, until now they haven’t received an official overall

agreed recognition and definition. Since the end of Cold War and the advent of

globalization, no analysis of international relations can decisively interpret the role of

NGOs. Non-state actors have emerged as an essential element of international

processes. Across issue areas, NGOs influence a variety of actors on international scene.

In terms of density and prominence of NGOs’ activity their role is most visible in the

context of human rights.54

“Particularly during the last 25 years, NGOs have contributed to international and

national discourse on issues of global scope, such as the eradication of poverty and the

promotion of gender equality, peace, sustainable development and human rights”55

NGOs promoting human rights principles are largely represented in the

international system and their presence is steadily growing. However, it is not only the

present time where we can notice their growth. They have always enjoyed a large

representation amongst the variety of causes maintained at this level. Since 1953 to

1993, number of NGOs committed to human rights has increased more than in five

times, consistently accounting for more than one-quarter of NGOs active on the

international arena. 56

These NGOs have also been given greater notability in human rights policy

debates.57 For the 1993 Human Rights Conference in Vienna, according to UN source

lists 248 NGOs in consultative status and 593 as participants were registered. However,

54 Peter J. Spiro, NGOs and Human Rights: Channels of Power, available at http://ssrn.com/abstract=1324971 last viewed on 13.03.2010. 55 Peter van Tuijl, NGOs and Human Rights: Sources of Justice and Democracy, Journal of International Affairs, 1999, 52 (2), p. 494. 56 Margaret E. Keck, Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics Ithaca and London: Cornell University Press, 1998, 228 pages. 57 Ibid.

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NGO reports indicate that between 1,400 and 1,500 NGOs attended the Conference. 58

Today there are 3289 NGOs with consultative status at the UN.59

The genuine human rights organisations’ goals, commonly identified by them, are

“monitoring and reporting of government behaviour on human rights, particularly

violations, building pressure and creating international machinery to end the violations

and to hold governments accountable.”60 Other NGOs active on human rights issues

may have significantly broader organizational tasks such as “religious organizations,

trade unions, professional organizations, or groups concerned with refugees, children

and others.”61 Human rights groups also contribute considerably to the development of

new human rights standards and promotion of human rights, as well as to their

enforcement. 62 Human rights organizations tend to be independent both of governments

and of partisan groups fighting for political power. 63

Though systematically many attempts are made to categorize human rights NGOs,

no universal consensus is found on a cogent typology.64 However, in general activist

rights NGOs can be divided in to two major subcategories: those that stand for and

represent identity groups (eg. organizations advancing the rights of gays, women,

indigenous peoples, the disabled, and scores of other communities) and those which

advocate human rights more generally (Amnesty International and Human Rights

Watch as examples). 65

According to formal mandates, geographical location and preferred means of

action human rights NGOs often follow different aims. Tactics used by NGOs

58 Ann Marie Clark, Elisabeth J. Friedman, Kathryn Hochstetler, The Sovereign Limits of Global Civil Society: A Comparison of NGO Participation in UN World Conferences on the Environment, Human Rights, and Women 1998, p. 1 – 35, p. 9. 59 The United Nations Department of Economic and Social Affairs http://esango.un.org/civilsociety/displayConsultativeStatusSearch.do?method=search&sessionCheck=false last viewed 13.03.2010. 60 Felice D. Gaer, Reality check: human rights nongovernmental organizations confront governments at the United Nations, Third World Quarterly, 16 (3), 1995, p. 394. 61 Ibid. 62 Claude E. Welch, Protecting Human Rights in Africa: Roles and Strategies of Non-Governmental Organizations, Philadelphia: University of Pennsylvania Press, 1995 347 pages. 63 Felice D. Gaer, Reality check: human rights nongovernmental organizations confront governments at the United Nations, Third World Quarterly,16 (3), 1995, p. 389 – 404. 64 A full discussion of differentiation among variety of NGO types can be found in an article “NGOs and Human Rights: Channels of Power” written by Spiro, Peter J available at SSRN: http://ssrn.com/abstract=1324971 (tries “to systematize NGO activity relating to human rights”, and offers “a typology of human rights NGOs, distinguishing generalist from identity-oriented human rights NGOs and domestic from transnational” and than states that “It is not clear, however, that these distinctions are meaningful”). 65 Peter J. Spiro, NGOs and Human Rights: Channels of Power, available at http://ssrn.com/abstract=1324971 last viewed on 13.03.2010.

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committed to human rights usually focus on protecting individual victims of abuse

through a number of means: 66

1. “By exposing the abuses and mobilising shame through public

advocacy to end the abuses and ameliorate conditions. This is perhaps the

most common tactic adopted by such groups, and requires information

gathering.

2. By communicating with decision makers at both the national and

international level in a variety of ways, either specifically to the abuse and

victim, or generally with regard to the establishment of human rights

norms, and with gradations between the two. Armed with precise

information and communicated persuasively, human rights NGOs often set

the agendas of the international organisations to address the issues they

present.

3. By delivering services such as legal aid, training in public

advocacy skills and including broad educational services so that

individuals and groups will `know their rights’ and how to act upon them.” 67

A valuable number of NGOs is engaged in the protection of human rights on

international and national levels. They are working using different means and strategies

depending on their resources, objectives, and “political space.” Most concentrate their

forces on documenting and publicizing abuses, in this way trying to call attention to the

victims of abuses. To be more concrete, they monitor. Other activists focus on the

longer-term task for promoting human rights awareness, usually through education,

seeking an attitudinal change. Some NGOs work in partnership with governments,

recognizing that although political authorities are abusing their powers, they also can

protect citizens’ rights using responsibility and resources they obtain due to their

political power. NGOs forming the political atmosphere and environment to stimulate

actions in the field of human rights in governments and IGOs can play an important

role. They foster to attracting the attention of world public opinion to human rights

issues, affect the setting of the public agenda in this regard and help governments and

IGOs to identify and prioritize key human rights issues. NGOs are active participants in

66 Felice D. Gaer, Reality check: human rights nongovernmental organizations confront governments at the United Nations, Third World Quarterly,16 (3), 1995, p. 389 – 404. 67 Ibid., p.395-396.

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the drafting process of different kinds of human rights conventions and treaties (e.g.,

Universal Declaration of Human Rights, Convention on the Rights of the Child,

Convention Against Torture) and thus help in the development of human rights norms.

However, other human rights NGOs embrace particular governments as enemies. Their

efforts are articulated to do everything for the contemporary government to be replaced

or at least radically modified, to improve the situation. They work in highly politicized

environments. Their goal is democratization or greater autonomy for a specific group of

society. NGOs help to protect human rights against government violations through

various techniques such as diplomatic initiatives, fact-finding missions, reports, public

statements and mobilization of public opinion. And finally other NGOs work for

development.

Many NGOs started as short-term with more useful purposes for the precise

moment -relief distributing entities. However, they have shifted towards long term,

growth oriented organizations. In fact, the ways, in which NGOs operate shift over

time.68

Though, the NGO web influence is complex it is appropriate to concrete the

impact mechanism basing on levers and targets. In particular, in some context activists

tend to influence an actor to affect another actor in turn (levers). In other context, they

direct all their efforts to influence an actor to its own conduct (targets).

International human rights NGOs, genuinely, affect state behaviour, either as

levers or targets. However, in the result of more institutionalized process of protection

of human rights at the global level, obviously, international organizations have become

more sufficient to the development of human rights. NGOs work varied channels to use

international organizations as levers against target actors. In some contexts,

international organizations can become themselves the target of NGO activity.

Since the dawn of globalization the important development in relations between

NGOs and corporations has been noticed. In the past, the NGO-corporate interaction

was largely occurred through state intermediaries, states where thought to secure

corporate conformities. In recent years the non-state actors have made an enormous leap

in their development, thus that paradigm has changed. Now NGOs cooperate directly

68 Claude E. Welch, Protecting Human Rights in Africa: Roles and Strategies of Non-Governmental Organizations, Philadelphia: University of Pennsylvania Press, 1995, 347 pp; Jan Wouters, Ingrid Rossi Human Rights NGOs: Role, Structure and Legal Status, available at https://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP14e.pdf last viewed on 13.03.2010.

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with corporations both as levers and as targets, mostly without state or international

organizations mediation.

NGOs can also affect on each other in a range of contexts. Much of this

interaction is conducted on the level of cooperation through the establishment of

networks, in which NGO interests collide and coordinated action works for mutual

interests. However, inverse relationships have been also noticed; in which NGOs seek to

advance their agendas by affecting and restraining other NGOs, both as levers and as

targets.69

Due to their sphere activities human rights NGOs differentiate in mandates.

Wouters and Rossi in their research summarised that:

“Some of them have very narrow and discrete mandates, focusing on one category

of rights and even on a particular aspect of a category, while other NGOs have broader

and more inclusive mandates. Moreover, some NGOs have activities in several

countries and are thus considered as “international” NGOs, while others limit their

activities to their own country. The main difference between these two types of NGOs is

that international NGOs base their advocacy more consistently on international law.

Mandates of human rights NGOs have been dynamic, changing according to different

circumstances, such as: political and institutional context, ideological positions and

geographical locations, practical issues of membership and fundraising, concerns on

how to maximize achievements, self-perception and pressures from local groups or

other institutions.” 70

Most of NGOs no longer work alone to reach their aims, they often join or form

networks that transfer information and other resources across borders. Those networks

transfer different kind of gathered critical information among themselves vis-à-vis

national governments and other policymaking institutions.71

NGOs working as advocacy organizations have concentrated their job on a few

crucial areas: “working with (or against) government in developing agendas for action;

in standard setting (that is establishing international norms for state behaviour, set forth

69 Peter J. Spiro, NGOs and Human Rights: Channels of Power, available at http://ssrn.com/abstract=1324971 last viewed on 13.03.2010. 70 Jan Wouters, Ingrid Rossi, Human Rights NGOs: Role, Structure and Legal Studies, Working Paper No. 14, Institute for International Law, K. U. Louven, November 2001, available at https://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP14e.pdf last viewed on 13.03.2010. 71 Peter van Tuijl, NGOs and Human Rights: Sources of Justice and Democracy, Journal of International Affairs, 52 (2), 1999, pp. 493-512.

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in legally building treaties that have been negotiated and ratified by governments); in

preparing and providing information about abuses based on research; lobbying officials

and media; and in improving direct assistance to victims of human rights abuses.”72

The major achievement of the century on the issue of global human rights is the

United Nations based system of human rights. In its establishment and expending NGOs

are seen as an important historical player. Advocacy NGOs are a newborn organism of

enforcement of global human rights. 73 “The basic truth, which acknowledgeable

officials at the UN clearly understood, was that without NGOs the entire human rights

implementation system at the UN would come to halt… It goes without saying that the

leading NGOs human rights activists have mobilized the NGO community to vigorously

oppose [any] distributing plans aimed at turning the UN human rights clock back.” 74

The most visible contribution to the evolution of the UN human rights system was

regarded to the creation of a normative framework. After the adoption of Universal

Declaration of Human Rights in 1948, NGOs have gradually continued to get involved

to reinforce the UN human rights system and have thrived in the affecting the

elaboration of different UN treaties and conventions, for instance, the 1979 Convention

on the Elimination on All Forms of Discrimination against Woman and the 1989

Convention on the Rights of Child.75

In his book Claude Emerson Welch claimed that:

“It was NGOs who would take on the challenge of transforming the words of

Declaration from a standard to the reality; it was they who would assume the function of

implementing the demands of international morality. The Universal Declaration itself,

in course of time would be transformed from a mere moral manifesto on a common

standard into “customary international law” that carried a variable obligatory character.

This transformation was presses by NGOs. ” 76

Out of a great amount couple of the greatest achievements of NGOs in

propagation of human rights in recent period were: the establishment of the High

Commissioner for Human Rights, the acceptance of the principles of university at the

72 Claude E. Welch, NGOs and Human Rights: Promise and Performance, Philadelphia: University of Pennsylvania Press, 2001, 290 pp, p. 3. 73 Peter van Tuijl, pp. 493-512. 74 Claude E. Welch, NGOs and the Universal Declaration of Human Rights: A Curious Grapevine, St. Martin's Press: New York, 1998, p. 9 – 11. 75 Peter van Tuijl, pp. 493-512. 76 Claude E. Welch, 1998, p. 2.

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World Conference of Human Rights, the creation of ad hoc International Tribunals for

Former Yugoslavia and Rwanda, the equating of women’s rights with Human Rights at

the Beijing Conference of Woman in 1995,77 establishment of permanent tribunal to

prosecute individuals for genocide, crimes against humanity, war crimes the

International Criminal Court in 1998, and the complete ban of all anti-personnel land

mines which is articulated in the Convention on the Prohibition of the Use, Stockpiling,

Production and Transfer of Anti-Personnel Mines and on their Destruction in late 1997.

Felix Ermacora, one who is familiar with NGOs not from books and papers, but

rather thanks to his long term working experience in official UN and European human

rights bodies, characterized the width of their activity in the next way:

“NGOs have built up a system of international pressure on the development of

human rights. NGOs are the initiators of projects, they press state delegations to act,

they influence intergovernmental stuff who prepare documents and studies, they provide

material and information about human rights problems and situations, they give legal

aid to victims of violations of human rights and they fulfil – to certain extent – the role

of an international ombudsman for human rights” 78

NGOs working on promotion of human rights involve themselves in completely

unfamiliar for them areas. One of the top spheres that collide with the human rights

issue is jurisprudence. Together with access to decision-making and information, access

to justice is counted as one of the major components of the interaction between IGOs

and civil society.79 The fact that NGOs play an exuding role in international law

relevant fields “from treaty making to rule implementation; from support to courts to aid

delivery”80 is unquestionable. “NGOs inevitably play a role in the modern, democratic

law-making process, which is no longer exclusively reserved for states, beyond the

human rights area.”81

77 Ibid., p. 19. 78 Ibid., p. 18-19. 79 Luisa Vierucci, NGOs before International Courts and Tribunals, in: NGOs and International Law: Efficiency and Flexibility, edited by Pier-Marie Dupuy, Luisa Vierucci, Edward Elgar Publishing, Cheltenham, UK, 2008, p.281, p. 155. 80 Christiane Bakker, Luisa Vierucci, Introduction; a normative or pragmatic definition of NGOs, in: NGOs and International Law: Efficiency and Flexibility, edited by Pier-Marie Dupuy, Luisa Vierucci, Edward Elgar Publishing, Cheltenham, UK, 2008 p.281, p. 1. 81 Christiane Bakker, Luisa Vierucci, 2008, p. 4.

29

In fact, international adjudicatory bodies acknowledge the determinant

contribution that the NGOs make to the proceedings and to a different degree don’t tend

to elude the general question of their relations with NGOs.82

Noteworthy is the fact that NGOs are convinced that their participation before

international courts and tribunals is fructuous. This productivity works in two ways.

One of them is technical experience.83 The other, “thanks to their subject-matter

competence and specific knowledge of the adjudicatory body that they are declaring

with, NGOs may help developing jurisprudence and in particular clarifying the scope

and content of individual or collective rights.”84

Luisa Vierucci in her work pointed out that:

“With the fast-increasing role that civil society is playing in practically all areas

regulated by international law, from treaty making to law enforcement, and the

widespread outcry of NGOs representatives claiming more room for maneuver in the

international arena it is remarkable that the degree of NGOs access to international

justice in not subject to opening, especially in those areas such as environment, where

agreements on dispute settlement solutions have been widely accepted.”85

The genuine channels of NGOs for legal enforcement mostly concern advisory

and publicity roles. However, their facilities in direct participation have widened, their

roles lie in acting as actio popularis, locus standi, and amicus curiae. NGOs in the

position of actio popularis are accredited to represent the “public interest” in front of

judge. 86

As a matter of fact some rights have collective dimension which individual

application may not correctly represent or have the interest to raise the right of NGOs

for proper locus standi before international jurisdiction as far as general interests are

concerned. 87

However, different NGOs fear that their enlarged legal standing before

international courts and tribunals would generate more problems than it solves. It can

82 Luisa Vierucci, 2008, p. 157. 83 Ibid., p. 155-180. 84 Ibid. p. 156. 85 Ibid. p. 160. 86 Ibid., p. 155-180. 87 Civil Society, International Courts and Compliance Bodies, edited by: Tullio Treves, Marco Frigessi di Rattalma, Attila Tanzi, Alessandro Fodella, Cesare Pitea, Chiara Ragni, Asser Press, 2005, pp.338, p. 59.

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bring negative effect on the principles of the fair administration of justice or the rights

of the parties involved in the dispute.

In addition it is allowed for NGOs to be a party of proceedings presenting amicus

curiae briefs, as the letter type of intervention is often relied upon by NGOs in order to

overcome the lack of standing in contentious cases.88

Amicus curiae submissions are a form of third-party intervention that in fact is

“the presentation of a technical view of a party not represented before the judge of

points of law or fact, … it reinforces the individual application with external technical

support that is more and more needed considering the variety of technical issues upon

which the international judge is required to adjudicate.”89

Non-governmental organizations working on the benefit of humanity, promoting

human rights involved themselves in completely different areas of global governing to

achieve success in their goals. As Peter van Tuijl emphasized:

“Responding to the forces of globalization these new forms of civil organizations,

which are able to work simultaneously across different issues and different local

national, and international spaces, are absolutely necessary to efficiently promote

human rights and the pursuit of justice.” 90

88 Luisa Vierucci, 2008, p. 155-180. 89 Ibid. p. 166. 90 Peter van Tuijl, NGOs and Human Rights: Sources of Justice and Democracy, Journal of International Affairs, 52 (2), 1999, p. 511-512.

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1.2 International Criminal Court 1.2.1 Historical aspect of creation of the ICC and its structure

“Nothing can stop an idea whose time has come”

– Victor Hugo

After Slovakia, Bulgaria, Romania, Bosnia and Herzegovina, Mongolia, Niger,

Democratic Republic of the Congo, Cambodia, Jordan, and Ireland91 ratified the Rome

Statute of the International Criminal Court on 11 April 2002 bringing the total number

of ratifications to more that 60 triggered the entry into force of the Statute on 1 July

2002.

It is since the 15th century when the idea of international criminal court appeared,

however only since the 19th century we can observe the emergence of the international

criminal law in current understanding, which was reflected in the form of rules

governing military conflict. One of the earliest attempts at drafting a code regulating the

conduct of armies in the field was the Brussels protocol of 1874.

After the end of the “war to end all wars” the other global conflict of 1939-1945

became the following impact for the development of international humanitarian law.

The major feature of this impetus was the establishment of two military tribunals in the

aftermath of the Second World War: the International Military Tribunal sitting in

Nuremberg and the International Military tribunal for the Far East sitting in Tokyo. 92

More than a half century ago, for the first time in history a court with the law

greater than that of individual nations was created to bring Nazi war crimes to justice.

The creation of Nuremberg court was impelled by images of horror the world had never

seen before. This tremendous movement towards the universal justice became the stone

point in history. Opening the International Military Trial in Nuremberg Robert Jackson,

the chief prosecutor for the United States, with an eloquent speech, stressed the

importance of holding Nazi leaders accountable and preserving the rule of law and

emphasised its role in history.

91 The International Criminal Court http://www.icc-cpi.int/Menus/ASP/states+parties/ last viewed 20.03.2010. 92 Laura Barnett, The International Criminal Court: History and Role, 2008 available at http://www2.parl.gc.ca/Content/LOP/ResearchPublications/prb0211-e.htm#notice last viewed 19.03.2010.

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“…That four great nations, flushed with victory and stung with injury, stay the

hand of vengeance and voluntarily submit their captive enemies to the judgement of the

law is one of the most significant tributes Power has ever paid to Reason...

We must never forget that the record on which we judge these defendants today is

the record on which history will judge us tomorrow. To pass these defendants a

poisoned chalice is to put it to our own lips as well. We must summon such detachment

and intellectual integrity that this trial will commend itself to posterity as fulfilling

humanity's aspirations to do justice…” 93

Even though it is a well known fact that both the Nuremberg and Tokyo tribunals

advanced the international rule of law and are commonly regarded as the archetype of

modern international criminal law, in the respect of international facet, they are

imperfect examples, and it was still much to work on after their existence.

In response to Nazi atrocities, one of the first conventions of the UN concerning

the humanitarian issues was established. It was the Convention on Genocide adopted on

9 December 1948 in New York, which entered in to force on 12 January 1951.94

Article 1 states that “the Constructing Parties confirm that genocide, whether

committed in the time of peace or in time of war, is a crime under international law

which they undertake to prevent and punish.”95 However, this considerable achievement

wasn’t followed by any advances for the next four decades. Foreshadowing progress

after the Nuremberg and Tokyo was expressed in the UN General Assembly’s

assignment to the International Law Commission (ILC) for examining the possibility of

establishing a permanent international criminal court. Draft statutes were produced in

the 1950s, but any valuable advance was not possible because of the Cold War.

The ILC’s post-Nuremberg project received new chance for life 1989 after the

Trinidad and Tobago President suggested the UN General Assembly an establishment

of international judicial forum for drug trafficking prosecutions. 96 In addition, this

93 Robert H. Jackson, Opening Statement before the International Military Tribunal http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/opening-statement-before-the-international-military-tribunal/ last viewed on 20.03.2010. 94 Laura Barnett, The International Criminal Court: History and Role, 2008 available at http://www2.parl.gc.ca/Content/LOP/ResearchPublications/prb0211-e.htm#notice last viewed 19.03.2010. 95 Convention on the Prevention and punishment on the Crime of Genocide, adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948, available at http://www.hrweb.org/legal/genocide.html last viewed on 21.03.2010. 96 Laura Barnett, 2008.

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initiative was undertaken by the then U.S.S.R. and Germany, which was also

strengthened by the results of both the scholarly and expert efforts. 97

These initiatives succeeded. Within this regenerated international attention to what

was to become the wider initiative of the International Criminal Court, an “expert

phase” has begun.98 In 1991 a request of the General Assembly to draft an international

criminal court treaty went to the law commission and then in 1992 to complete this task

urgently.99 Thus, the ILC was able to renew its work started in the 1940s over

preparation of a draft statute for a comprehensive international criminal court. 100

There was a little bit of hope for an International Criminal Court between 1989

and 1992. However, changes brought the Security Council Resolution 780101, which

established a Commission of Experts to investigate international humanitarian law

violations in the former Yugoslavia. 102

The creation of the ad hoc tribunals for the former Yugoslavia103 and Rwanda104

caused even more impetus for the Commission’s work and received wider recognition

and confidence in the need for establishing the ICC.

It was very well summarised by William A. Schabas that:

“Popular as they were at that time, there was also general recognition that the ad

hoc tribunals were a temporary and inadequate solution to a more fundamental needs

that of a permanent international criminal court. The idea had been in circulation since

the Nuremberg, and even before, but only in 1989 did the matter return definitively to

the agenda of the General Assembly.”105

After the Draft worked out by the ILC was delivered to the General Assembly,

the process of establishment of a permanent Court entered its “diplomatic phase.”106

97 Benedetti, Fanny, Washburn, John L., Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Rome Diplomatic Conference; Global Governance 5(1), 1999, pp. 1-37. 98 Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law, (Oxford Monographs in International Law), Oxford University Press, USA, 2004, 226 pages, p. 70. 99 Benedetti, Fanny, Washburn, John L., pp. 1-37. 100 Laura Barnett, 2008. 101 Sec. C.R. 780 U.N. SCOR, 47th Session, U.N. Doc. S/RES/780 (1992). 102 Laura Barnett, 2008. 103 The International Criminal Tribunal for the former Yugoslavia was created pursuant to Security Council Resolution 827, U.N. SCOR, 48th Session, U.N. Doc. S/RES/ 827 (1993), the “ICTY Statute.” 104 The International Criminal Tribunal for Rwanda was created pursuant to Security Council Resolution 955, U.N. SCOR, 49th Session, U.N. Doc. S/RES/ 955 (1994), the “ICTR Statute.” 105 William A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, Cambridge University Press, 2006, pp. 768. p. 31. 106 Bruce Broomhall, p. 71.

34

The Draft Statute was created on the basis of the UN Charter, the Geneva Convention,

the International Court of Justice Statute, and the Statutes of the International Criminal

Tribunals for the former Yugoslavia and Rwanda. Although, its final version, submitted

to the General Assembly107 in 1994, looked rather like a permanent version of the ad

hoc tribunals. 108 The following step towards creation of the Court was establishment of

the Preparatory Committee (PrepCom) on the Establishment of an International

Criminal Court in 1996.

The General Assembly was a creator and direct and exclusive supervisor of the

PrepCom, which goal was to achieve a court independent of (although closely related

to) the UN. This court supposed to be an institution to investigate and punish actions

which the broad UN community, consisting of nations, the Secretariat, and NGOs, has

generally embraced as threats to peace, as especially serious crimes, and as violations of

human rights. However, both the Security Council (responsible for dealing with threats

to peace and creator of the ad hoc tribunals) and the Economic and Social Council

(ECOSOC - responsible for the principal human rights bodies of the UN) had any role

in the process of creating the ICC. 109

“When the idea of a permanent international criminal court resurfaced in the early

1990s, there was widespread belief that the endeavour was simply unrealistic. The

political challenge that such a major international institution represented was only part

of the problem. Many believed that the absence of a basic framework of international

criminal laws and rules of procedure would make it impossible for governments to

agree on creating such a court. Many participants found it hard to adjust

psychologically, operationally, and intellectually to the implications of negotiating what

would be not only a new and unique international institution but also a court.” 110

If the criminal law is moving towards effective enforcement – towards the rule of

law – so it is the ICC which must become the foundation stone of this movement.

By the Secretary General Kofi Annan on Monday 15 June 1998 the UN

Diplomatic Conference of Plenipotentiaries on the Establishment of an International

Criminal Court (“DipCon”) was opened. It took place at the headquarters of the United

Nations Food and Agriculture Organization in Rome. Over five weeks of intensive 107 International Law Commission, Draft Statute for an International Criminal Court, Yearbook of the International Law Commission, 1994, vol. II (Part Two). 108 William A. Schabas, pp. 768. 109 Benedetti, Fanny, Washburn, John L., pp. 1-37. 110 Benedetti, Fanny, Washburn, John L., pp. 1-37.

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discussions hosted delegations from 160 States along with hundreds of NGOs and

numerous Inter-Governmental Organizations.111

“The delegations were composed of a mixture of career diplomats from missions

to the UN, senior civil servants from capitals, public and private experts (the largest

group), and a few politicians. Most came through foreign ministries, but larger countries

(France, the U.K., the United States, and Russia) included representatives from justice

and defence ministries. Expertise within and among delegations had to be diverse.”112

When the main dates of the Conference in Rome were known several groups of

participating states were formed. One of the most organised was the self named “like-

minded group” (LMG). It stranded for the establishment of an ICC during the PrepCom

and promoted the idea of a strong and independent court.113 Their common interest was

to create a permanent international criminal court as soon as possible. They realized that

if not to push this movement the opportunity of creation of the ICC could vanish for

another fifty years. The LMG worked through the three years of negotiations as

promoters of a strong, independent, and effective international criminal court. They

cultivated strong connections with the NGO coalition and with other experts, and their

accomplishments were impressive. 114

The second group included states permanent members of the Security Council or

the “P-5”, but with the exception of Britain, which had joined the LMG just before the

beginning of the conference.115 The members of the group supported the notion of the

strong role of the Council vis-à-vis the Court and the exclusion of nuclear weapons from

the weapons prohibited by the Statute.116

The third state grouping was formed in opposition to the P-5. Those were states

which confronted the idea of strong influence of the Security Council on the Court and

insisted on the inclusion of nuclear weapons among prohibited by the state (e.g. India,

Mexico, and Egypt). 117 Though, this group’s position on other issues – the

independence and power of the ICC – was similar to that of the P-5. 118

111 Bruce Broomhall, 226 pages. 112 Benedetti, Fanny, Washburn, John L., pp. 1-37. 113 Philippe Kirsch, John T. Holme, The Rome Conference on an international criminal court: The negotiating process, The American Journal of International Law, 93 (1), 1999, p. 2-12. 114 Benedetti, Fanny, Washburn, John L., pp. 1-37. 115 Laura Barnett, 2008. 116 Philippe Kirsch, John T. Holme, p. 2-12. 117 Ibid. 118 Laura Barnett, 2008.

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“With the exception of these trends, the conference was characterized by a mosaic

of positions that transcended political and regional groupings.”119 In addition, to the

many working groups and informal consultations, discussions were carried out among

political and regional groupings, which were: the Non-Aligned Movement, the Arab

Group, the Latin American and Caribbean Group, the EU, the Western Europeans and

others.120

One more influential role belongs to NGOs. They, except lobbying for certain

positions, also made evaluable the expertise they built up over years of focusing on this

subject. Although their position varied, in general the NGOs pressed for a strong court

with automatic jurisdiction, an independent prosecutor, sensitivity to gender concerns

and jurisdiction over internal armed conflict.121

The negotiating of the statute was guided by two chairpersons. Adriaan Bos, the

Legal Adviser of the Ministry of Foreign Affairs of the Netherlands chaired the Ad Hoh

and Preparatory Committees. However, due to his illness he was replaced by Philippe

Kirsch Legal Adviser of the Department of Foreign Affairs of Canada, who became the

chairman of the Committee of the Whole.122

The Rome Statute of the Court consists of thirteen parts,123 including 128 articles,

many of which were the subject of intensive negotiations and careful crafting. However,

the most controversial elements of the statute were largely concentrated in Part 2 –

Jurisdiction, Admissibility, and Applicable Law – which includes the list and definitions

of crimes.124

As a result of long and intense debates, both crimes against humanity and war

crimes were included in many issues and options in the draft treaty of the Rome

Conference. The definition of war crimes had the most sensitive position. Variety of

states favoured a restrictive list and definitions of these crimes (France, the United

States, India, Pakistan, Iran), although others demanded the substantial alteration or

119 Philippe Kirsch, John T. Holme, p. 2-12. 120 Mahnoush H. Arsanjani, The Rome statute of the international criminal court, The American Journal of International Law, 93 (1), 1999, p. 22 – 43. 121 Philippe Kirsch, John T. Holme, p. 2-12. 122 Mahnoush H. Arsanjani, p. 22 – 43. 123 1. Establishment of the Court; 2. Jurisdiction, Admissibility and Applicable Law; 3. General Principle of Criminal Law; 4. Composition and Administration of the Court; 5. Investigation and Prosecution; 6. The Trial; 7.Penalities; 8. Appeal and Provision; 9. International Cooperation and Judicial Assistance; 10. Enforcement; 11. Assembly of State Parties; 12. Financing; and 13. Final Clauses. 124 Philippe Kirsch, John T. Holme, p. 2-12.

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omission of the treaty language of humanitarian law (Switzerland, Norway, Sweden,

Samoa).125

The Final Act of the Rome Conference provided for the establishment of a

Preparatory Commission, which consisted of all States participated in the Rome

Conference, and charged with proposing practical arrangement for beginning the Court

intro operation including the preparation of draft texts of the additional instruments

needed for the Court to function.126

The treaty’s final text, prepared by the Bureau of the Assembly of States Parties,

was presented to the delegates in the end of the conference as package dealing no

subject to renegotiation. The treaty was adopted by a vote of 120 in favour, 7 against,

and 21 abstentions. Among those voting against the statute were the United States,

China, and Israel.127

The Rome Treaty counts to be unprecedented in the evolution of international

criminal legal justice for number of reasons. The major points are:

• Independent Prosecutor: earlier only states were allowed to bring cases to the

trial 128

• Universal Jurisdiction: cases may be tried on the territory of the State Party or

on the territory of any other State by special agreement129

• Complementarity Principle: if it is appropriate cases are to be deferred to

national jurisdiction (it is formed to complement national courts, not to replace them;

actually, the ICC would only come into play if the national government was unable or

unwilling to prosecute)130

• Sentences to Life in Prison is the highest penalty (no death penalty as

punishment)131

• A seven- year opt out clause for war crimes: State Parties are able to delay

commitment to this jurisdictional framework until the clause expires 132

125 Benedetti, Fanny, Washburn, John L., pp. 1-37. 126 Bruce Broomhall, p. 75. 127 Allison Marston Danner, When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War, Vanderbilt Law Review, 59 (1), 2006, p. 1 – 57. 128 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, art.15. 129 Ibid., art. 4. 130 Ibid., art. 21. 131 Ibid., art. 77. 132 Ibid., art. 124.

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• Sufficient progress of guarantees for justice, protection, and rights for women,

children, and victims.

The ICC is presided over by the president and two vice-presidents, who are

elected for a three-year term by their fellow judges. They are responsible for general

administration of the Court, except of the Office of the Prosecutor. The President of the

Court is Judge Sang-Hyun Song (Republic of Korea), with Judge Fatoumata Dembele

Diarra (Mali) as a First Vice-President, and Judge Hans-Peter Kaul (Germany) as

Second Vice-President. Beyond the presidency the ICC is composed of 18 judges at the

Pre-trial, Trial and Appeal divisions.133

The ICC’s other Prime administrative body is the Registry that is responsible for

the non-judicial aspects of the administration and keeping records. The Registry locates

witnesses and victims and provides for their protection in participation during

investigations and trials. 134

The Prosecutor and his Office is responsible for gathering information about

crimes and presentation of evidence against an accused before the Court. The

Prosecutor’s Office acts independently as a separate organ from the Court.

The Prosecutor of the International Criminal Court is Luis Moreno Ocampo,

previously an Argentinean state prosecutor, who was elected by the States Parties for a

term of nine years.135

“The judicial functions of the Court are carried out by chambers. The chambers

each include several judges. The Court has three chambers, the Pre-Trial Chamber (with

seven judges), the Trial Chamber (with six judges) and the Appeals Chamber (with five

judges).The Pre-Trial Chamber decides whether the Prosecutor is allowed to start a

formal investigation into a case. The Trial Chamber decides whether the accused person

is guilty as charged and if they find him or her guilty, will assign the punishment for the

crime and any damages to be paid to the victims. It also must ensure that a trial is fair

and expeditious, and is conducted with full respect for the rights of the accused with

regard for the protection of victims and witnesses. When the Prosecutor or the convicted

person appeals against the decision of the Pre-trial or Trial Chambers, the case comes to

133 The ICC web page, Structure of the Court available at http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/ last viewed on 21.03.2010. 134 Human Rights Watch, The International Criminal Court: How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals, September 2004. 135 Structure of the Court, The ICC web page http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/ last viewed on 21.03.2010.

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the Appeals Chamber. The Appeals Chamber may decide to reverse or amend a

decision, judgement, or sentence. It can also order a new trial before a different Trial

Chamber.”136

Additionally, several mechanisms to provide assistance to victims of war crimes,

genocide and crimes against humanity exist within the ICC and under the Rome Statute.

The ICC Registry administrates three bodies that provide such assistance.

• “The Victims’ Participation and Reparations Section helps victims to apply

for participation in proceedings on reparations and it provides where

needed.

• The Victims and Witnesses Unit provides protection and psychological

support to witnesses, victims appearing before the Court and others at risk

because of their testimony.

• The Office of Public Counsel for Victims supports victims’ legal

representatives and victims themselves, providing such service or research

and advice. Members of the Office can also be appointed as legal

representatives for victims.”137

Finally, the Trust Fund for Victims, which was established and works separately

from the ICC under the Rome Statute. The Fund started functioning in early 2007 and

has jurisdiction to act only in situations where the ICC itself has jurisdiction. In general,

the Trust Fund advocates for victims and provides tools, assistance and experience for

victims of war crimes, genocide and crimes against humanity.138

Since 2002 when the ICC first came into existence, it has become an efficient part

of the international political relations and human rights system. After 108 parties had

ratified the Rome Statute on July 2008, the ICC prosecutor had already taken up four

country situations: the Democratic republic of Congo, Uganda, Central African

Republic, and Sudan (Darfur).

136 Human Rights Watch, The International Criminal Court: How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals, September 2004. 137 Laura Barnett, The International Criminal Court: History and Role, 2008 available at http://www2.parl.gc.ca/Content/LOP/ResearchPublications/prb0211-e.htm#notice last viewed 19.03.2010. 138 Ibid.

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In addition, though, investigations have not begun, the ICC prosecutor is also

monitoring situations in a series of other countries: Cote d’Ivoire, Colombia,

Afghanistan, Chad (where a field office have been established), Georgia and Kenya.”139

139 Ibid.

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(*)The Secretary of the Assembly of the States Parties operates over the full authority of the Assembly and reports directly to the Assembly The Secretariat of the Assembly is and integral part of the International Criminal Court and, for administrative purposes, the Secretariat and its stuff are attached to the Registry of the Court

Figure 1: Organizational structure of the Court

Source: Proposed Programme Budget for 2008 of the International Criminal Court ICC-ASP/6/8, July 25, 2007, available at http://www.icc-cpi.int/NR/rdonlyres/C5C8945D-8479-4BCB-AF4B-0198C35DD9D3/145925/ICCASP68English.pdf last viewed 20.03.2010, p. 145.

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1.2.2 The mandate of International Criminal Court

The achievement of Rome Conference in 1998, creating a treaty for a permanent

international criminal court is a millenary occasion. The last century has been a

murderous epoch, however, it end up with a great promise to act against those who go

against a fundamental law of war and humanity. The most quintessential areas of the

ICC concern, according to the present Prosecutor, Luis Moreno-Ocampo, are to find the

best way of investigation of crimes that will come before it, to supply and ensure the

protection of victims, and to act independently and interdependently at the same time.140

As it is mentioned in the Statute, the Court “shall have power to exercise its

jurisdiction over persons for the most serious crimes of international concern.”141 The

crimes that could reach this high threshold are set in the Statute. They are: genocide,

crimes against humanity, war crimes and aggression. Each of listed crimes is already

recognized as crime against law of nations, delicta jus gentium. 142

Out of four crimes enumerated in the Statute, just three of them will actually fall

under the ICC’s concern in its primal stages. The fourth, aggression, is yet to be

defined, maybe even in near future, by way of an amendment to the Statute by the

Assembly of the States Parties.143

The U.N. Convention on the Prevention and Punishment of the Crime of Genocide

of 1948, which confirmed genocide as a crime under international law in the aftermath

of the Holocaust, served as the source of the definition of genocide, which is taken

almost verbatim from there. Article 6 states that genocide occurs when acts are

“committed with intent to destroy, in whole or in part, a national, ethnical, racial or

religious group.” Such acts of genocide can be carried out by:

• “killing members of the targeted group;

• causing serious bodily or mental harm to members of the group;

140 Ray Murphy, Gravity Issues and the International Criminal Court, Criminal Law Forum, 17, 2006, pp. 281–315. 141 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, art.1. 142 Daniel D Ntanda Nsereko, The International Criminal Court: Jurisdictional and Related Issues, Criminal Law Forum, 10 (1), 1999, pp.87 – 120. 143 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, art. 5(2).

43

• deliberately inflicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part;

• imposing measures intended to prevent births within the group;

• or forcibly transferring children of the group to another group.” 144

As detailed as it is in the Rome Statute, crimes against humanity have never been

defined before. The Rome definitions build on what was comprised in the Nuremberg

and Tokyo Charters and the Statutes of the ad hoc Tribunals for Former Yugoslavia and

Rwanda, 145 which allowed the Statute to include all the crimes taken from the previous

experiences, and create a fuller list of them.

According to Article 7 crimes against humanity are crimes that are “committed as

part of a widespread or systematic attack directed against any civilian population.” They

can include acts such as:

• “murder;

• extermination;

• enslavement;

• deportation or forcible transfer of population;

• imprisonment;

• torture;

• rape, sexual slavery, enforced prostitution, forced pregnancy, enforced

sterilization or other forms of sexual violence;

• persecution against any identifiable group or collectivity;

• enforced disappearance of persons;

• the crime of apartheid;

• other inhumane acts of a similar character intentionally causing great

suffering, or serious injury to body or to mental or physical health.”146

Similarly, war crimes have never got such detailed definition in any international

instrument. Its list has been formed on the basis of work in Nuremberg, Tokyo, Former

144 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, art. 6. 145 Roger S. Clark, Creating and Explaining the International Criminal Court, Criminal Law Forum, 19(3-4), 2008, pp. 589-599. 146 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, art. 7.

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Yugoslavia and Rwanda. To prepare a full text of war crimes prosecutors and judges

from previous tribunals were invited to make it up as they went along.147

War crimes are severe intrusions of the Geneva Conventions of 12 August 1949

and other serious violations of the laws and customs applicable in armed conflicts. The

Geneva Conventions are series of international agreements (1864, 1906, 1926, 1949),

which define the rules of war. They sing up international standards to protect the

civilian population and to treat the combatants in international and internal armed

conflicts. In general, war crimes are committed in the context of armed conflict,

however, some of them are specifically linked to internal armed conflict – such as civil

war – and others are linked to international armed conflict. But most war crimes can

take part in both situations. 148

War crimes in international armed conflicts consist of acts such as:

• “wilful killing;

• torture or inhuman treatment including biological experiments;

• wilfully causing great suffering or serious injury to body or health;

• extensive destruction and appropriation of property, not justified by

military necessity and carried out unlawfully and wantonly;”149

• “compelling a prisoner of war or other protected person to serve in the

forces of a hostile power;

• wilfully depriving a prisoner of war or other protected person of the rights

of fair and regular trial;”150

• “unlawful deportation or transfer or unlawful confinement;

• taking of hostages.” 151

147 Roger S. Clark, Creating and Explaning the International Criminal Court, Criminal Law Forum, 19(3-4), 2008, pp. 589-599. 148 Human Rights Watch, The International Criminal Court: How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals, September 2004. 149 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949. art. 50, available at http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/fe20c3d903ce27e3c125641e004a92f3?OpenDocument 24.03.2010. 150 Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. art. 130 available at http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68?OpenDocument 24.03.2010. 151 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. art 147 available at http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6756482d86146898c125641e004aa3c5?OpenDocument 24.03.2010.

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War crimes in internal armed conflicts include acts such as:

• “violence to life and person, in particular murder of all kinds, mutilation,

cruel treatment and torture;

• outrages upon personal dignity, in particular humiliating and degrading

treatment;

• taking of hostages;

• the passing of sentences and the carrying out of executions without

previous judgement pronounced by a regularly constituted court” 152

In addition to the Geneva Conventions, other violations of the laws and customs of

war can also be war crimes. The Rome Statute lists a wide range of such acts. Examples

include:

• “intentionally directing attacks against the civilian population…;

• intentionally directing attacks against [civilian objects] …;

• intentionally directing attacks against personnel, installations, material,

units or vehicles involved in a humanitarian assistance or peacekeeping

mission…;

• killing or wounding a combatant who, having laid down his arms or having

no further means of defence, has surrendered…” 153

These acts, under international law, are counted as war crimes even though “they

are not committed as part of a systematic or widespread attack on civilians, but if they

are only rare or sporadic.”154 However, the authority of the International Criminal Court

is limited. According to the Rome Statute, “the Court shall have jurisdiction in respect

of war crimes in particular when committed as part of a plan or policy or as part of a

large-scale commission of such crimes.”155

During the preparation of the Statute of the International Criminal Court, countries

could not find a consensus on a defining an aggression as individual crime. Seven years

152 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949. art.3 (a) – (d) available at http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/fe20c3d903ce27e3c125641e004a92f3?OpenDocument 24.03.2010. 153 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, art. 8 (e) (i) – (xii). 154 Human Rights Watch, The International Criminal Court: How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals, September 2004. 155 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, art. 8 (1).

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after the entry into force of the Rome Statute, the issue of aggression must be reviewed,

which will happen in May and June of this year, where states party to the International

Criminal Court will meet in Kampala, Uganda for the first Review Conference of the

ICC.156 In case of substantial number of states’ agreement on a definition, it will be

included in the Rome Statute, and after that the Court will be able to prosecute crimes of

aggression.

The Court has a right to work in the frames of its jurisdiction only after July 1,

2002, i.e. the date when the Rome Statute entered into force. Crimes committed before

that date the Court is not allowed to prosecute. Those crimes can be prosecuted in the

national justice systems, ad hoc international tribunal for Rwanda and former

Yugoslavia, or the Special Court for Sierra Leone, or before the courts of a third

country, which are allowed to prosecute an individual under universal jurisdiction. If the

ratification of the Rome Statute has occurred later than July 2002, the Court will only

prosecute crimes committed after the date of ratification.

According to Article 1 of the ICC Statute, the court is complementary to national

criminal justice systems. It was created to supplement national courts. This stands for

the notion that the ICC’s role in investigating and prosecuting the crimes, which are

within its mandate, is secondary to that of States. 157 If the investigation or prosecution

is already held in the concern state, the Court will not intervene doesn’t matter which

adjudication was carried out. However, under Article 17 of the Rome Statute, the Court

has the power to prosecute cases if the national state is “unwilling or unable” to carry

out a genuine investigation or prosecution.

“Unwillingness” of the state is determined by three major issues: whether it has

taken measures to shield the suspect from criminal responsibility, whether it has unduly

delayed the proceedings and whether it conducted proceedings in an independent and

impartial way.158 If these conditions are not met the Court will have the right to take the

case under its jurisdiction.

156 Review Conference of the Rome Statute, http://www.iccnow.org/?mod=review 25.03.2010. 157 Daniel D Ntanda Nsereko, The International Criminal Court: Jurisdictional and Related Issues, Criminal Law Forum, 10 (1), 1999, pp.87 – 120. 158 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, art.17 (2).

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Considering whether the state is unable to arrest the accused, to obtain the

necessary evidence, and to otherwise carry out judicial proceedings159 the Court

determines if the state is “unable” to investigate and prosecute a case.

All crimes included into the Court’s jurisdiction, can be committed during an

implementation of the State politics, and thus might be referred to as State crimes.

However, the scheme laid, everything planned and brought to life by individuals, even

though in the name of the State.160 It was mentioned at the Nuremberg International

Military Tribunal: “[c]rimes against international law are committed by individuals who

committed such crimes can be provision of international law be enforced.”161 Following

this policy, the ICC Statute provides that “[a] person who commits a crime within the

jurisdiction of the Court shall be individually responsible and liable for punishment in

accordance with this Statute.”162

Also it is important to mention that for the Court to exercise jurisdiction over an

accused person it is necessary that at least one of the state on whose territory the crime

was committed and the state of which is national be party to the Statute.163

The trigger mechanisms of the ICC are signed up in the Article 13, which covers

the situations that can invoke or trigger the Court’s jurisdiction. The article gives the

right to a prosecutor to start an investigation in three conditions: proprio motu of the

prosecutor itself, if the State Party refers the case or after the referral of the Security

Council.164

Article 15 obliges the Prosecutor to gather information about crimes, analyse it on

potential crimes in order to decide whether it is necessary to proceed with an

investigation and present evidence against accused before the Court.

Before initiating the opening if the case the Prosecutor is required to consider

three factors:165

159 Ibid., art.17 (3). 160 Daniel D Ntanda Nsereko, The International Criminal Court: Jurisdictional and Related Issues, Criminal Law Forum, 10 (1), 1999, pp.87 – 120. 161 The Nurnberg Trial, 6 F.R.D. 69 (1946). Cited by Daniel D Ntanda Nsereko, The International Criminal Court: Jurisdictional and Related Issues, Criminal Law Forum; 1999; 10, 1, p. 98. 162 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, art. 25(2). 163 Daniel D Ntanda Nsereko, The International Criminal Court: Jurisdictional and Related Issues, Criminal Law Forum, 10 (1), 1999, pp.87 – 120. 164 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, art.13 (a) – (c). 165 See Articles 15 and 53 of the Rome Statute and Rule 48 of the Rules of Procedure and Evidence.

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• Whether the available information is reliable and gives reasonable

arguments to believe that a crime (genocide, crimes against humanity or

war crimes) within the jurisdiction of the Court has been committed; 166

• Weather the case is admissible before the Court, with reference to the

requirements of gravity and complementarity with national proceedings;167

• In case of fitting of the above, the Prosecutor must consider the

requirements of the interests of justice.

Operating in the international environment the dilemma confronting the Court

arises in several issues. To operate worldwide and stay successful, international justice

must remain small and limited. Helping governments, the ICC does not replace them.

Working over a small amount of cases, the ICC shows that it is in charge of a lot of

issues and clears up that it does not aim to replace national justice.168 This states that

complementarity of the Court is at the heart of the Rome Statute.169 Although, the case

of the Court is the most visible institutional framework for the universal justice, the

main and the genuine exercise of law must always stay in the national jurisdiction.

166 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, art.53(1) (a). 167 Article 53(1)(b) and Article 17 of the Rome Statute. The term “proceedings” encompass investigations and prosecutions (Article 17). 168 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, Preamble, para. 6. 169 Ray Murphy, Gravity Issues and the International Criminal Court, Criminal Law Forum,17, 2006, pp. 281–315.

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2.1. The NGO Coalition for the International Criminal Court in creation of the International Criminal Court

2.1.1 The background of the CICC: its organizational purpose and logistics

Although at the end it is states that brought the International Criminal Court into

existence by ratifying the Rome Statute, the Court would have never arose the way it

did without the great influence of groups and individuals from the range of global civil

society. 170

The main force of influence during the process of ratification and implementation

of the Rome Treaty which brought the Court into being was the NGO community. Its

functions in the human rights protection and promotion consist of following:

• “creating awareness, through the dissemination of information and

education, of human rights values;

• developing norms and a general conceptual framework for human rights

activities;

• coordinating human rights activities within the national or international

arena;

• promoting a particular human rights agenda through extensive lobbying

with state representatives in norm-creating institutions or conferences;

• gathering and disseminating information on human rights violations

through fact-finding missions to, or national representative bodies within,

the human rights trouble spots of the world;

• submitting complaints of human rights violations to government

institutions or to the enforcement agencies within the United Nations

system of human rights protection;

• affording publicity to instances of human rights violations as a means of

persuading those responsible for such violations to desist from their

repressive policies and conduct;

170 Marlies Glasius, How Activists Shaped the Court, December 2003 available at http://www.crimesofwar.org/print/icc/icc-glasius-print.html last viewed on 27.03.2010.

50

• bringing pressure to bear on governments or government officials guilty of

repression or human rights violations. ” 171

All these functions are vital for the enforcement of human rights; however,

dispersed force of NGOs would take eternity to reach some concrete results. But, the

unified actions already gave the world the international tribunal that tries individuals for

the gravest crimes in all parts of the globe. Starting from the handful of organizations

the Coalition for the International Criminal Court now contains 2,500 organizations

around the world, which are working in partnership for the purpose of strengthening of

international collaboration with the ICC; for provision of fair, effective and independent

Court; for guarantying clear and universal justice; and for development of national laws

to deliver justice to victims of grave crimes (war crimes, crimes against humanity and

genocide).

Within the CICC NGOs get access to negotiations on the ICC, which includes

meetings of the Assembly of States Parties, and get involved into NGO organised events

and gatherings, become informed and follow common strategy on issues considering the

Court.172

The CICC is unique in its structure, because although it has all of the

characteristics of an autonomous organization, its members are NGOs not individuals. It

is not possible for the individuals to become members of the Coalition. To be a member,

an NGO must affirm their liabilities to the Coalition’s aims and concretize which

working team they would like to join. 173

The idea for the permanent tribunal receiving its first notion just after Nuremberg

process hardly made it through the Cold War confrontations. But just thanks to strong

convictions of organizations like the International Law Association and the World

Federalist Movement and a handful of legal scholars, it kept alive and stemmed into a

process of creation of the ICC.

In 1995 organisations and individuals who felt the duty to push the idea of

establishment of the court into a reality with strong and independent ICC found the

Coalition for an International Criminal Court (CICC).

171 Johan van der Vyver, Civil society and the International Criminal Court, Journal of Human Rights, 2 (1), 2003, pages 425 - 439 . 172 About the Coalition, CICC website http://www.iccnow.org/?mod=coalition last viewed on 31.03.2010. 173 Heidi Nichols Haddad, Advocacy Mission Creep: NGO Coalitions and the International Criminal Court, Paper presented at the annual meeting of the Theory vs. Policy, New Orleans, available at http://www.allacademic.com/meta/p415681_index.html last viewed 10.04.2010.

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Since then, the original goal of establishment of the ICC was widened and new

purposes arose before the Coalition, including the main greater goal of providing

guaranties for the Court fair, effective, and independent functioning, thus the Coalition

have grown exponentially. Through the years, the Coalition with its worldwide

members that have been working together, creating the history and making the

breakthrough for the civil society participation in the decision making. Since the

preparatory comities for the creation of the Court to the Rome Conference that

established the ICC to the annual meetings of Assembly of States Parties the work of

the Coalition can be traced.

The central purposes of the NGO Coalition for an International Criminal Court

from the very beginning were first to advocate the creation and later guarantee

functioning of an effective and just International Criminal Court. During the period

from the time when the Draft of the Statute for the ICC was proposed until its official

acceptance, which became the creation of the Court, as the Coalition united a broad-

based network of NGOs and international law experts to work on ICC related issues,

precisely, to develop strategies on substantive legal and political issues relating to the

ICC Statute, it fostered awareness and support among a wide range of civil society

organizations: human rights, international law, judicial, humanitarian, religious, peace,

women’s, parliamentarian and others. 174

The Convener of the Coalition, William Pace, characterized the initial objectives

of the Coalition as follows:

“Among the primary objectives of the Coalition is the circulation and promotion

of new research and expert documents prepared by its member organizations. The

Coalition Secretariat updates both NGOs and governments on current developments in

all fields related to the ICC. Each organization plays a unique role in communicating the

Coalition's varied goals. Somewhat surprisingly, the smaller groups are often more

effective at networking, information dissemination, and coalition-building than the

larger international organizations.”175

However, after the Coalition reached its main aim and the ICC came into force

new purpose came up. Today, when the Coalition consists of more than 2500 member

174 About the NGO Coalition for the ICC, ICC Monitor, Issue 13, December 1999. 175 William R. Pace, Globalizing justice: NGOs and the need for an international criminal court. Harvard International Review, 1998, 20 (2), p 26.

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organizations, through precise actions of member groups and in cooperation with the

variety of international organizations as well as governments, the CICC works toward:

• “protecting the letter and spirit of the Rome Statute;

• raising awareness of the ICC at the national, regional and global level;

• monitoring and supporting the work of the Court;

• promoting ratification and implementation of the Court’s founding treaty, the

Rome Statute;

• monitoring and supporting the work of the Assembly of States Parties;

• facilitating involvement and capacity building of NGOs in the ICC process; and

• expanding and strengthening the Coalition’s worldwide network” 176

The result of long and effective work was recognition of the role of the Coalition

on the official level. It happened in September 2003 after the adoption of the resolution

by the Assembly of States Parties entitled ‘Recognition of the coordinating and

facilitating role of the NGO Coalition for the International Criminal Court’ (ICC-

ASP/2/Res.8) during its second session. 177

The CICC secretariat is chaired by William R. Pace, who is an Executive Director

of the World Federalist Movement-Institute for Global Policy and in concurrent serves

as the Convenor of the CICC. The secretariat is located in New York, USA ("the UN

office") and Hague, the Netherlands ("the ICC office"), and has several regional

coordinators around the globe based in Belgium, Benin, Jordan, the Philippines and

Peru, etc. An informal Steering Committee, that guides the work of the Coalition, helps

to determine its aims, policies and strategies. 178

176 About the Coalition, CICC website http://www.iccnow.org/?mod=coalition last viewed on 31.03.2010. 177 Ibid. 178 Ibid.

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Map 1: Regional coordination of the Coalition for the ICC

Source: The Coalition for the Criminal Court, Promoting a Fair and, Effective and Independent International Criminal Court, available at www.coalitionfortheicc.org/audio-visual/CICC_PowerPoint_Sept05.ppt last viewed 7.04.2010.

The CICC Secretariat started from 3 part-time employers, now it includes almost

40 people plus the numerous interns and volunteers who donate their time. The

correlation of knowledge and relevant skills present in secretariat staff, which represents

all continents, ensures effective coordination of the campaign for the ICC. 179

The sole of the Coalition is a group of the famous and respected NGOs which are

members of the informal Steering Committee. The Committee, through adaptation and

adjusting political achievements, provides help for the work of the Coalition’s

Secretariat. It serves as an advisory body to provide global policy coherence and to

ensure cooperation and provide curtail strategic oversight. A lot of these organisations

were several of those who started the life of the Coalition. All of them have their own

programs, staff, and resources, and are focused on transnational activity. They are

cooperating with each other, national and regional networks and Thematic Caucuses.

The Coalition consists of more than 2500 organizations today, taking start just

from 25 in 1995. The sound of civil society in the face of the Coalition is the major

179 Staff List in New York and The Hague, CICC website http://www.iccnow.org/?mod=stafflist last viewed on 31.03.2010.

* New York Secretariat

* The Hague Secretariat

*Mexico City, Mexico *Lagos, Nigeria Benin City,* *Quezon City,

Phillipines

*Buenos Aires, Argentina

Brussels, Belgium*

*Sana’a, Yemen

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actor in global fight to end the impunity today. In order to organise and equilibrate

steering the Coalition, the advisory body of the CICC, the Steering Committee, in 2007

broadened its number of members for the first time. To create more diversified

Committee the process of expansion will continue for the purpose of inclusion of fuller

mix of national, regional, linguistic and other expertise.

Up to date the members of the Steering Committee are:

• Amnesty International

• Asian Forum for Human Rights and Development (FORUM-ASIA) –

Bangkok, Thailand

• Asociación Pro Derechos Humanos

• Civil Resource Development and Documentation Centre (CIRDDOC) –

Enugu, Nigeria

• Comisión Andina de Juristas (Andean Commission of Jurists) – Lima, Peru

• Fédération Internationale des Ligues des Droits de l'Homme

• Human Rights First

• Human Rights Network-Uganda (HURINET-Uganda) – Kampala, Uganda

• Human Rights Watch

• No Peace Without Justice

• Parliamentarians for Global Action

• The Redress Trust – London, United Kingdom

• Women's Initiatives for Gender Justice

• World Federalist Movement

• Emeritus Steering Committee Members:

• European Law Students Association

• Rights and Democracy 180

It is important to mention the existence of a strong national and regional ICC

networks around the globe, which made possible the success of the NGO campaign for

the establishment of a fair, effective and independent International Criminal Court. The

CICC national and regional coalitions are usually composed of wide range of civil

society groups that work within a precise country or a region, including NGOs,

academics, lawyers, bar associations and others. These networks were the main

180 Steering Committee, CICC website http://www.iccnow.org/?mod=steering last viewed on 31.03.2010.

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instruments for achieving of all goals of the campaign, in particular ratification and

implementation of the Statute, and spreading information about the Court and the

Statute in the purpose of education.

Until 2009, 14 national coalitions in Asia and the Pacific, 14 in Europe, 32 in

Africa, 11 in the Middle East and North Africa, and 9 in the Americas, for a total of 80

national coalitions were formed. 181

Developing the CICC and working on its goals NGOs organized themselves by

issue area, collaborating and cooperating to a high degree.182 The existence of caucuses

and working groups within the Coalition provides an important opportunity for its

members to work together on issues of common concern.183 The history of creation of

the CICC thematic caucuses goes far to the UN Preparatory Committee meetings that

were held for discussions of the Draft Statute for the ICC from 1996 to 1998. They were

created to ensure that the perspectives of particular issues were incorporated into all

aspects of negotiations. Each of the working groups made a great contribution during

the Rome Conference in 1998, reflecting in the treaty that is much stronger than it might

have been from the perspective of women, children, victims, faith-based groups and the

anti-nuclear movement.184

Tasks and aims of the caucuses before and after the Rome Conference have many

differences. After gaining its genuine goals the caucuses have re-shaped their objectives

and continue to bring unique and important perspectives to the work of the Assembly of

States Parties, campaign for the ratification of the Statute, functions directed to

successful implementation of the treaty’s provisions into national law, the worldwide

propagation and education effort, and the effective functioning of the Court itself.185

The sectoral caucuses include the following:

• Women’s Initiatives for Gender Justice functions as an independent NGO with

worldwide membership, and is a member of the Coalition’s Steering Committee. Its

work was directed to the issues of the inclusion of the Rome Statute’s clear definitions

of crimes of sexual violence, such as the recognition of rape and other sexual violence

181 Regional and National Networks, CICC website http://www.iccnow.org/?mod=networks last viewed on 31.03.2001. 182 NGO activities in Rome, ICC Monitor, Issue 10, November 1998. 183 Sectoral Caucuses Will Continue to Strengthen the ICC , ICC Monitor, Issue 21, June 2002. 184 Thematic Caucuses, CICC website http://www.iccnow.org/?mod=caucuses last viewed on 31.03.2010. 185 Ibid.

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as both war crimes and crimes against humanity for the first time in international law.

Regarding its active work and strong convictions the team reached their aims and was

most successful. Thanks to the caucus gender sensitivity and gender justice was

included in the Rome Statute and the ICC.

• Victims’ Rights Working Group includes a big range of organizations and

individual experts which are concerned in issues related to victims and survivors and

their relation to the ICC. Its work encompassed procedural protections for victims in

general, in addition to the ability of victims to participate in the process and claim

reparations before the Court, and the establishment of a Trust Fund for Victims.

• Faith and Ethics Network for the ICC gathered together different organizations

representing the world's religions and faiths concerned about a strong, independent and

effective International Criminal Court. Caucus made important contributions to the

drafting of the Statute’s preamble, which is a reference in interpreting the spirit of the

law and thus in the resolution of many cases before the ICC.

• Universal Jurisdiction Caucus is comparably new team formed after

establishment of the ICC in 2002. As a matter of fact the ICC is not a universal

jurisdiction Court, but evolving principles of universal jurisdiction in national Courts

will complement its work and represent an important mechanism in strengthening

international justice.

• Children’s Caucus activities were very important prior to and during the Rome

Conference. It worked to ensure that child-specific provisions such as trafficking in

children were incorporated into the treaty, while procedural safeguards were included to

protect children involved in the proceedings. And recently NGOs have expressed their

desire to re-vitalizing this network. Number of organizations is involved in the process

of monitoring the protection of children’s rights, precisely in cases where children are

victims of or witnesses to crimes under the Court’s mandate.

• The Peace Caucus worked over the aim to ensure that the central principles of

the Statute included civilian immunity and the principle of proportionately, which can

be used to argue that the use of nuclear weapons is unlawful because of the effect of

such use. 186

186 Thematic Caucuses, CICC website http://www.iccnow.org/?mod=caucuses last viewed on 31.03.2010; Sectoral Caucuses Will Continue to Strengthen the ICC, ICC Monitor, Issue 21, June 2002.

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In addition, issue-specific teams and working groups comprised of NGO

representatives monitor a wide range of issues relating to the work of the ICC. Up to

date these include topics such as:

- “Budget and Finance

- Building - ICC Premises

- Children

- Communications and Outreach

- Cooperation Agreements and Enforcement

- Crime of Aggression

- Gender Justice

- Legal Representation

- Recruitment of ICC staff

- Review Conference

- Strategic Plan

- Trust Fund for Victims”187

Valuable and important work that the CICC have done and continues to do wasn’t

left without any recognition. “Over the past decade, the CICC has been nominated

several times for the Nobel Peace Prize and has been widely acknowledged as the

primary civil society force behind the historic successful adoption of the Rome Statute

on the International Criminal Court on July 17, 1998 and in the creation of the Court

itself in July 2002 with the 60th ratification of the ICC treaty, the Rome Statute.” 188

The NGO Coalition for the International Criminal Court is an important actor on

the international arena, and although it has no visible and clearly defined boundaries it

has an unprecedented potential to influence cooperation between global actors. The

Coalition crossing all possible geographical borders demonstrated a nice and successful

example for transnational activism with vast participation. 189

187 NGO Teams on Issues, CICC website http://www.iccnow.org/?mod=teams last viewed on 31.03.2010. 188 CICC Convenor and Start, CICC website http://www.iccnow.org/?mod=convenorstaff last viewed on 31.03.2010. 189 Cenap Cakmak, Transnational Activism in World Politics and Effectiveness of a Loosely Organised Principled Global Network: The Case of the NGO Coalition for an International Criminal Court, The International Journal of Human Rights, 12 (3), 2008, p. 373 – 393.

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2.1.2 The process of negotiations and ratification (1998 – 2002)

For the member organization of the NGO Coalition for an ICC, the culmination of

three and a half years of joint actions and compliance among NGOs themselves as well

as between NGOs and governments and the UN Secretariat was the adoption of the

Rome Statute. The main result of NGO interference in the process of the establishment

of the Court is the Rome Statute which, although not perfect, but reflects the most

fundamental concerns of civil society and surpasses the expectations of even the most

optimistic observers going into the Rome Conference. 190

In 1995 on February 25, the Ad Hoc Committee for an International Criminal

Court was about to begin its genuine discussions, when the World Federalist Movement

assembled a meeting of interested NGOs, which intended to consider the possibility to

coordinate the efforts of civil society for the promotion of the establishment of the ICC. 191 In result, a small group of NGOs that were monitoring the UN General Assembly

debates on the International Law Commission’s Draft Statute for an international

criminal court formed the NGO Coalition for the International Criminal Court, during

the meeting in New York192 with Bill Pace as its convener. The organisation’s central

aim was to advocate the establishment of an effective and just permanent international

tribunal. The largest and most respectful organisations involved in these early stages of

cooperation formed an informal steering committee, including Amnesty International,

Federation Internationale des Ligues des Droits de l’Homme, Human Rights Watch, the

International Commission of Jurists, the Lawyers Committee for Human Rights, No

Peace Without Justice, Parliamentarians for Global Action and the World Federalist

Movement. 193

In stead of evolving a strong institutional identity, the pioneers of the Coalition

decided to establish a loose NGO network and raise awareness on and draw attention to

the idea of the creation of the ICC. As a result of this overture, a heterogeneous and

complex entity, which is neither fully institutional nor a mere movement, was created.

190 William R. Pace, Mark Thieroff, Participation of Non-Governmental Organizations, in The International Criminal Court: the Making of the Rome Statute, edited by Roy S. Lee, Kluwer Law International, 1999, pp. 700, p. 391 – 398. 191 Johan van der Vyver, Civil society and the International Criminal Court, Journal of Human Rights, Volume 2, Issue 3 September 2003 , pages 425 – 439. 192 William R. Pace, Mark Thieroff, p. 391 – 398. 193 Ibid.

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The members of the Coalition were free to act independently of the network, while

sharing united initiative and working together to provide the maximum pressure towards

the creation of the ICC.

In addition it must be mentioned that the Coalition’s leading figures’ decided to

stay focused on a single issue, because of their pragmatic view. Regarding this decision

the optimal result was received from cooperation of NGOs without forcing them to

make compromises with their identities or area of activities. The main reason of such an

ungrudging participation in the Coalition was that any member was asked to veer from

its orientation. NGOs participating in the Coalition didn’t lose their individuality, but

made contributions to the pre-determined single aim: the promotion of the ICC. 194

The goals of the CICC were defined as follows:

• “Convene the Coalition and its working groups, such as the ad hoc Tribunal/ICC

funding working group, information/media working group, and a working group on US

strategies.

• Maintain a World Wide Web page, international computer conferences and

listserv email lists to facilitate the exchange of NGO and expert documentation and

information concerning the ad hoc Tribunals and the ICC negotiations and to foster

discussion and debate about substantive issues arising from the negotiations for

establishing a permanent International Criminal Court.

• Facilitate meetings between the Coalition and representatives of governments,

UN officials and others involved in the ICC negotiations.

• Promote education and awareness of the ICC proposals and negotiations at

relevant public and professional conferences - including UN conferences, committee,

commission and preparatory meetings.

• Produce newsletters, media advisories, reviews and papers on the developments

and negotiations. ”195

In fact the Coalition is percepted as mediator for civil society entrainment in the

negotiation process and as a main source of information on the ICC. During all the

period of the PrepCom, the Coalition secretariat arranged innumerable meetings for

NGOs with representatives of governments, UN officials and other involved in the

194 Cenap Cakmak, Transnational Activism in World Politics and Effectiveness of a Loosely Organised Principled Global Network: The Case of the NGO Coalition for an International Criminal Court, The International Journal of Human Rights, 12 (3), 2008, p. 373 – 393. 195 About the Coalition, ICC Monitor, Issue 1, July 1996.

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Court’s negotiations; generated and sustained executive electronic resources, print

publications, negotiations at relevant events and conferences around the world. 196

On the very start of the road to Rome there was a hope to create the international

criminal court at least in 50-100 years. In 1995 many of the most powerful nations,

North and South, were still expressing opposition to the ICC, but already in one year no

government publicly opposed it. As fast as on December 17, 1996, by consensus the

General Assembly of the United Nations adopted the resolution on the Establishment of

an International Criminal Court (A/RES/51/207). This resolution represents a major

victory for the NGOs and governments supporting this historic initiative.

Coalition convenor William Pace, Executive Director of the World Federalist

Movement, issued the following comment: “The adoption of this resolution represents

an extraordinary achievement for those governments and NGOs who have been the

strongest supporters of the establishment of an ICC, and who believed that setting the

date at this General Assembly was a critical test in maintaining the level of commitment

and momentum for this truly historic initiative. One cannot overstate the enormous

challenge governments have undertaken in adopting a schedule to complete negotiations

for a statute establishing a permanent ICC by June 1998. We are truly on a path in

which this could be the last major international institution established in the 20th

Century, and one of the most important in all of history.” 197

Regarding the loose structure that allowed the NGOs to act independently when

needed and join the common effort led by the CICC, a great number of NGOs were able

to join the preparatory of the Rome Conference and the conference itself. 198

By the first day of the Rome Conference, this informal grouping had grown into a

movement including already more than 800 organizations. This effect was caused by an

amplification and concrete definition of advocacy efforts in the opening-up to Rome. To

organise their work Coalition members formed sectoral caucuses and working groups

concentrating on the gender issues, the rights of victims, peace and disarmament

questions, the protection of children and matters of faith, which were the most sensitive

aspects of the Court. In addition, in many parts of Latin America, Europe, West Africa

and other areas of the world national and regional networks were established. 199

196 William R. Pace, Mark Thieroff, p. 391 – 398. 197 Governments Agree to a 1998 Conference Date, ICC Monitor, Issue 3, January 1997. 198 Cenap Cakmak, p. 373 – 393. 199 William R. Pace, Mark Thieroff, p. 391 – 398.

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Before the beginning of the Conference in Rome the Coalition’s Secretariat and

governments were discountenanced from a limit set for the number of NGOs who

would have been accredited for the treaty conference. The most visible reason for that

was not possibility of all accredited NGOs to attend the Conference for all five weeks.

However, during the times in which there were too many NGOs for the limited seating,

NGOs have maintained that the Coalition has been able to utilize self-organizing

mechanisms throughout the Preparatory Committee process to deal with these

limitations and that is what they have continued to do in Rome.200

236 NGOs were accredited to participate in the Rome Conference and just few of

them where not members of the Coalition. 450 individual represented these

organisations. As a matter of fact most of NGOs could sent one or two representatives,

and the majority of them had to stagger their attendance over the five week period, but

couple of larger NGO delegations, like those of Amnesty International and Human

Rights Watch, exceeded many government delegations. However, the influence of the

NGOs in Rome was not just a simple size of their presence, but, as it was commented

by the Security General, other UN officials and many governments, regarding their

organization they played a critical role on the Conference. 201 The most publicized

demonstrations prepared by No Peace Without Justice and Amnesty International, press

conferences, briefings, reports prepared by the Coalitions 13 monitoring teams,

responsible for monitoring of all Parts of the Statute, the Final Act and the Preamble, 202

demonstrated time and again that NGO Coalition was not only the larges delegation in

Rome, but one of the most important as well. 203

Although the CICC had no right to participate in the negotiations formally as the

government delegations did, the CICC mostly operated negotiating behind the scenes.

The CICC steadily advanced the development of negotiations by holding “straw votes,”

negotiating deadlocks, making proposals and suggesting texts. 204

200 Important Notice Regarding NGO Participation at the ICC Treaty Conference , ICC Monitor. Issue 7, February 1998. 201 William R. Pace, Mark Thieroff, p. 391 – 398. 202 “All Roads Lead to...” Rome Treaty Conference Opens June 15, ICC Monitor, Issue 8, June 1998. 203 William R. Pace, Mark Thieroff, p. 391 – 398. 204 Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford Monographs in International Law), Oxford University Press, USA, 2004, 226 pages; Benjamin N. Schiff, Building the International Criminal Court, Cambridge University Press, 2008, 320 pages.

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Near 250 NGOs came to the Rome Conference to urged the governmental

delegations to adopt a Statute that would guarantee that “the ICC have automatic

jurisdiction over genocide, crimes against humanity and war crimes,” “be able to

perform its tasks free from the interference of any political body, including the UN

Security Council and states,” “have the broadest possible jurisdiction over the most

serious crimes under international law, such as genocide, crimes against humanity and

war crimes,” “have an independent, impartial Prosecutor , empowered to initiate

proceedings on her or his own initiative.”205

The Coalition carried out wide a flurry of activities during the Rome Conference –

from gala receptions in elegant Rome nightclubs to dense policy papers on issues before

the Rome delegations – with a view to assisting the Conference in achieving its goal.

These activities included the following:

Government-NGO Collaboration

Except formal meetings between government delegates and NGO representatives,

the CICC arranged wide possibilities of government-NGO dialogues to discuss current

issues and find solutions to difficulties in the negotiations. In the process of discussions

over the Statute, the CICC met with all the major regional groupings of governments,

the like-minded group, the permanent Security Council members, and others. 206 NGOs

were helpful as well providing the skilful stuff to participate in the meeting as members

of delegations of some governments. No Peace Without Justice organised a judicial

assistance program which supported delegations from a number of African and other

developing countries by provision of legal experts.

With a purpose to facilitate informal dialogue among governments and between

governments and NGOs, the Coalition assembled numerous regionally oriented

meetings with governments, as well as specific sessions for Francophone and Spanish-

speaking countries. 207

NGO-NGO Cooperation

205 Cited: “From Representatives of Non-Governmental and Social Organizations Participating in the “International Forum, Vienna +5 Review’: Letter of Solidarity on the International Criminal Court”, The ICC Monitor, Issue 11, June 30 1998, p.1. in Cenap Cakmak, Transnational Activism in World Politics and Effectiveness of a Loosely Organised Principled Global Network: The Case of the NGO Coalition for an International Criminal Court, The International Journal of Human Rights, 12 (3), 2008, p. 373 – 393. 206 ICC Monitor, Issue 10, November 1998. 207 William R. Pace, Mark Thieroff, p. 391 – 398.

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NGOs from Africa, Asia, Europe, Latin America, and other regional groupings

were organising several meetings to coordinate advocacy efforts, to share information,

and to plan dialogues with governments. The CICC have sponsored a large number of

various experts from around the globe, with different NGOs helping others to attend. 208

The coalition Secretariat facilitated visits to Rome of 30 NGO experts from less-

developed and transitional states as well as number of students and experts from Europe

and North America. In addition, nearly 50 legal experts from lesser-developed states

provided their assistance to the Coalition and its members directly or indirectly. 209 The

regional caucuses were major tools to reach to different governments and stay informed

about any developments. Closer to the end of the conference, NGO representatives from

Asia, Africa and Latin America decided to joint statement of principle in support of the

ICC, called the “Declaration of the Alliance of Three Continents.” 210

The Sectoral Caucuses

For better cooperation NGOs organized themselves by issue area. In Rome were

presented thematic caucuses such as the Women's Caucus for Gender Justice in the ICC,

the Victim's Rights Working Group, the Faith-based Caucus, the Children's Rights

Caucus, and the Peace Caucus. Much of innovations in the treaty language in such areas

as gender crimes, the victim's and witnesses unit, and the age of responsibility of the

accused were heavily affected by the work of the NGO caucuses and working groups.

Teams Monitoring the Negotiations

As it was already mentioned, NGO representatives were organized into 12 teams

to monitor the various parts of the statute and the working groups. About 50 people –

each team was composed of 4 to 8 people – were active participants in the teams, as

team leaders, team deputies, team assistants and team members. The coordination of

teams was the duty of a small secretariat, which also distributed the team reports to

other NGO representatives. Those reports were available for the governments as well.

During the conference, team reports became the best and only mechanism for NGOs to

keep up with the debates.

Reporting

NGOs involved themselves into the duty of reporting on the ICC events and

developments. The reports were usually concentrated on the major topics discussed at

208 NGO Activities in Rome, ICC Monitor, Issue 10, November 1998. 209 William R. Pace, Mark Thieroff, p. 391 – 398. 210 NGO Activities in Rome, ICC Monitor, Issue 10, November 1998.

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the Conference, including but not limited to penalties, trial, appeal and review, trigger

mechanism and admissibility and finance. 211 The representatives of NGOs also worked

on translation of key reports into French and Spanish for the purpose to assist

“governments and NGOs from Africa and Latin America in the negotiations.”212

The Coalition was facilitating three news teams – Terra Viva, On-the-Record, and

the ICC Monitor – which provided the conference’s only daily print and electronic news

coverage. The “On-the-Record” team of journalists, activists and volunteers, prepared

email newsletter concerning the Rome Conference, which enclosed key developments,

interviews with important NGO representatives and analysis of the issues. The

newspaper, entitled Terra Viva, featured a Rome edition of the ICC Monitor in its centre

section. 213

The Coalition regularly organised briefings for international and regional media

representatives gathered in Rome, and delivered a press packet which was distributed to

1200 journalists all over the globe and hundreds of journalists in Rome. These briefings

were often the only source of information on the ICC for the media, since almost the

entire conference was closed to the press. 214

Other Events in Rome

In addition to the all mentioned activities, the Coalition has also maintained other

functions, which could be regarded as normal and usual. Except putting efforts to work

in the halls of FAO, NGOs from time to time organised events and activities that are

commonly expected from traditional protest and advocacy movements. Although at the

beginning, “there has been no NGO posturing, no walk-outs, and no demonstrations –

with the exception of a predictable protest from Argentinean mothers of the

disappeared,”215 in a while, starting with an Italian NGO, which organised a protest

whereby it demanded the Mexican president to be the first person, who could be

accused by the ICC, the Coalition members held different events that could be called

‘street action’, although they were few. 216

211 On the Record, Issue 15, 8 July 1998. 212 On the Record, Issue 14, 7 July 1998. 213 Ibid. 214 William R. Pace, Mark Thieroff, p. 391 – 398; Marlies Glasius, The International Criminal Court: a Global Civil Society Achievement, Routledge, 2006. 215 On the Record, Issue 8, 26 June 1998. 216 Cenap Cakmak, p. 373 – 393.

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The Amnesty International-Italy that constructed a huge tent complex near the

conference site for various press conferences, panel discussions, concerts, plays, and

other occasions. Other demonstrations that took place in Rome in support of the ICC

were following:

“No Peace Without Justice held a moving torchlight march beginning at the

government centre Campidoglio, ending at the FAO conference site. In the final days of

the conference, No Peace Without Justice organized a 24-hour vigil just outside the

FAO to encourage a successful outcome of the conference. Amnesty International drew

thousands of supporters to a demonstration at the Via della Fori Imperiali called "Tutti

Giu Per Terra" or "All Fall Down." The demonstration concluded with a period of

silence during which everyone lay on the pavement, symbolizing the victims of human

rights violations who demand an ICC. The CICC organized a well-attended reception on

the roof of the FAO building. Local musicians entertained government and NGO

representatives as the sun set gloriously over the Roman skyline”217

The Coalition’s involvement in the ICC-related processes could create a wrong

idea of the central organ of the Coalition that coordinates the activities of the member

NGOs being Court itself. For the purpose of clearing this notion, so that no confusions

or misunderstandings could occur, the CICC noted that it is not an additional organ of

the ICC. Its statement in relation to the cases before the Court sounds in this way:

“The Coalition for the ICC is not an organ of the Court. The Coalition as a whole,

and its secretariat, do not endorse or promote specific investigations or prosecutions or

take a position on situations before the ICC. The Coalition will continue to provide

the most up-to-date information about the ICC and to help coordinate global action

to effectively implement the Rome Statute of the ICC. The Coalition will also

endeavour

to respond to basic queries and to raise awareness about the ICC’s trigger

mechanisms and procedures, as they develop.”218

NGOs were crucial element in the process leading to the establishment of the

International Criminal Court, their objectives has been broad, their actions – intensive

and influential.

217 NGO Activities in Rome, ICC Monitor, Issue 10, November 1998. 218 CICC Website, http://www.iccnow.org/?mod=casessituations last viewed on 10.04.2010 .

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After five weeks of intensive and hard work done over negotiations on 17 July,

1998, governments in an unrecorded vote passed a treaty to establish a permanent

International Criminal Court to adjudicate those who are responsible for crimes of

international community concern, which are genocide, war crimes, and crimes against

humanity. Although, many NGOs were not satisfied with too limited powers of the

Court, in general its Statute was considered a substantial step forward in the pursuit of

international justice.

NGOs reactions were heterogeneous. Those of the positive aspects of the Rome

statute named by many NGOs are: “an independent “proprio motu” prosecutor able to

initiate investigations, the inclusion of internal armed conflict in the definition of war

crimes, the incorporation of gender concerns into the definition of crimes and the

composition of the court, provisions that protect victims and witnesses and provide for

reparations to victims, and the automatic jurisdiction of the Court for all core crimes

including crimes against humanity, genocide and war crimes.” 219

On the other hand, there were several issues that fell below what many NGOs

worked on to create an effective and just court. Those are:

• deleted proposal that would have allowed a state party that had custody of

a person suspected of committing one of the core crimes to give the ICC

permission to go forward with an investigation;

• restricted jurisdiction of the Court to crimes committed in the territory of a

state party or by a state party’s nationals, so that the Court will have to

have the permission of the state of the suspect’s nationality or the state

where the crime occurred before it can exercise jurisdiction;

• the role of the UN Security Council, which allows the Council to delay

ICC proceedings for up to a year if the Council deems that the ICC may

interfere with Security Council “Chapter Seven” peace enforcement

activities;

• the consent for states to “opt-out” of the Court’s jurisdiction over war

crimes for a period of seven years after the state ratifies the treaty. As it

was pronounced by Pierre Sane of Amnesty International the opt-out

219 Governments Approve Rome Statute for an ICC, ICC Monitor, Issue 9, August 1998.

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clause “reflects a victory for the worldwide defence establishment. This is

a license to kill.” 220

Despite all those limitations, later it was realised that this may have been the best

outcome that was possible given the political realities. Gustavo Gallon of the

Colombian Commission of Jurists spoke on many NGOs beginning the press conference

that “we feel that this is not the court... that we would have liked to have. But we feel

that this is an embryo that can be improved to be strong, independent and effective

court.” 221

After the main goal was reached and a so long-awaited fruit of hard and long work

not only governments but of the main part of NGOs was already visible the mission of

CICC didn’t finish but had to include more tasks and duties. Since the moment when the

Statute was adopted, the purpose of NGOs became to give life to the Court, by signing

and ratification of the Rome Treaty. Activities of NGOs from now on were directed to

reach this main aim as fast as possible. The Coalition launched its “global ratification

campaign,” under a short and decisive motto “ICC Now!” The call induces the global

community urgently to pay attention to the idea the Coalition members, which agreed to

act together, were and stay focused on.

Two of their most prominent global ratification campaigns were the “Declaration

of the Hague” and the “T-82 Initiative.”

Working on the success of the ICC initiative, the tri-continental alliance created in

Rome, which consists of CICC member organizations from Asia, Africa, and Latin

America, in the launch of the CICC global ratification campaign at The Hague Appeal

for Peace conference on 13 May 1999 adopted the “Declaration of The Hague.” It

reaffirmed the intentions to support the ICC by organizations from the Global South.

Many NGOs and umbrella organizations from Asia, Africa, Latin America and the

Caribbean have signed the declaration.

“We, organizations and individuals from Africa, Latin America, the Middle East,

the Caribbean, Asia and The Pacific, come together to affirm our commitment to the

220 Ibid. 221 Ibid.

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establishment of an independent, fair and effective International Criminal Court,

through the prompt ratification of its Statute, approved in Rome on July 17, 1998.”222

Adopting this declaration NGOs bound themselves to give life to the Rome Statute

urging governments from all over the world to:

• to sign the Statute and not to conduct any policy that could be prejudicial for its

quick entry into force;

• to give priority to the ratification process and if necessary to be ready to engage

in constitutional amendments before the ratification of the Statute;

• to take active participation in the current work of the Preparatory Commission

for the Establishment of the ICC;

• after the process of ratification to pass enabling legislation to ensure that crimes

under the jurisdiction of the ICC are also crimes under domestic laws;

• to adopt relevant legislation enabling cooperation with the Court in areas such as

police action, judiciary proceedings, financial responsibilities and execution of the

penalties;

• to decline the activation of the seven-year clause that would shelter their

nationals from prosecution in the case of war crimes;

• to avoid bilateral treaties with non-party States in issues that may affect the

obligation of the State party to surrender indicted individuals, in other case to fully

cooperate with the Court;

• to create a Trust Fund to facilitate the fulfilment of financial obligations with the

Court by developing and least developed countries;

• to ratify other international instruments to protect and enforce Human Rights

and Humanitarian Law and accept the jurisdiction of regional bodies of regional Human

Rights courts for strengthening the new juridical order in which the ICC will operate;

• to support the fast establishment of the ICC at regional gatherings and bilateral

contacts, creating commitment in regional organizations to make the support for

effective international justice become a part of their normal lines of action. 223

Another campaign for the support of the ICC was a result of an academic meeting

on the International Criminal Court (ICC) held in May 1999 at the University of Trento,

222 Declaration of The Hague: The Civil Society of the Global South Supports the Establishment of an International Criminal Court, Hague Appeal for Peace, May 13, 1999 available at http://www.humanrights.or.kr/ICC/icc3-2.htm last viewed 6.04.2010. 223 Ibid.

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Italy. During this meeting a contact and coordination group was established, called “T-

82” (“T” for Trento, 82 for the number of countries that had signed the ICC Statute as of

May 15, 1999.) Parliamentarians of two members of the Steering Committee of the

Coalition for the International Criminal Court – Global Action and No Peace Without

Justice – in cooperation with the Coalition Secretariat took a lead role on this

initiative.224

The objectives of the “T-82” were:

• “To promote the signature of the ICC Statute by the largest number of

countries, in particular the “like-minded” countries which have not signed the

Statute to date;

• To promote ratification of the Statute by those countries who have already

signed, in order to reach, as soon as possible, the initial threshold of 60, required

for the treaty to enter into force.” 225

When only 28 ratifications were left to launch the engine of the ICC, the Coalition

has step into program to achieve sixty ratifications by 17 July 2002. To carry out this

mission, the NGO Coalition has identified 67 nations, which were believed to secure the

governments’ affirmative decision by that date. 226

After NGOs members of the CICC put maximum efforts to get to the finish line

which meant the beginning of new era in international law they approached entry into

force of the Rome Statute on 1 July 2002. They did it although until only a few years

before this date no expert thought that during his or her lifetime it would be possible to

establish a world tribunal within a system of international justice that would be a light

for those who felt on themselves literally thousands of years of impunity and darkness

for those who have committed the most severe atrocities against humanity. Near seven

years ago the handful of NGOs stood up to raise the voices of those who were not heard

properly before, the voices of victims, women, children, of anti-war advocates, of

followers of many faiths and religions, and of all those who were sickened by daily

images of widespread violence, to collectively promote the creation of the world’s first

permanent International Criminal Court (ICC). The Coalition has brought together

organizations and experts from all over the world, including the most skilled advocates

224 T-82 Initiative, ICC Monitor, Issue 13, December 1999. 225 Ibid. 226 ICC Treaty Passes Half-Way Mark: Croatia, Paraguay and Andorra Bring Ratifications up to 32, ICC Monitor, Issue 17, May 2001.

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of international justice on earth. Since the main purpose of their work was achieved, the

most exciting challenges were yet to come: to use the power and expertise of civil

society to ensure that the Court is the best it can be. The process of transformation from

treaty to institution is even more essential and difficult and the transformation from idea

to treaty. 227

According to the words of the Convenor of the CICC William R. Pace:

“Efforts to conclude the work of the Preparatory Commission, elect the Court’s

officials, develop a code of conduct, create a bar association, and establish the many

logistical, technical, financial, personnel, outreach and other arrangements, are all

enormously daunting tasks. At the same time, we must continue to work to ensure that

support for the Court is as universal as possible, and that all ratifying countries adopt

strong domestic implementing legislation. Widespread public education remains critical,

and a new set of tasks is arising from the need to ensure a strong understanding of the

Rome Statute and supporting documents by key stakeholders at both the national and

international level. The Coalition for the ICC remains committed to working closely

with likeminded governments and international organizations to achieve all of these

goals.” 228

The CICC made a breakthrough in global politics and relations between states and

civil society. It made a great impact on the phenomenon act which took its start in 1990

and reached its peak during the Rome Conference – “the new diplomacy.” As it was

outlined by David Davenport several tactics of the new diplomacy were used during the

conference, which gave a grand impact for the creation of the ICC, and without which

the whole process might take from 50 to 100 years as it was predicted in the beginning:

“Speed was … a key, as the leaders sought to leave the five-week Rome

conference with an approved treaty and then undertook to complete the ratification

process in record time. Self-imposed deadlines, almost unheard of in the slow,

deliberate world of customary international law, limit the opportunities for dissent and

compromise….A second tactic of the new diplomacy in Rome was bundling the key

elements of the court into a package that became a take-it-or-leave-it proposal, not

subject in the end to further compromise.…A third tool in the new diplomacy kit

replaces the consensus-based approach of customary international law with a straight

227 A Victory for Peace, ICC Monitor, Issue 21, June 2002. 228 Ibid.

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vote of nations.…Yet another tactic of the new diplomacy is a willingness to take issues

outside of the normal international decision-making forum and create a new process….

The most powerful tool of the new diplomacy is replacing the leadership of the U.S. and

other world powers with that of nongovernmental organizations and smaller states.” 229

229 David Davenport, The New Diplomacy, Policy Review, No.116 (2002–2003).

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2.1.3 Life after birth of the ICC: transformation of priorities and turning points in the CICC mission

In some occasions organization during its lifetime faces the moment when it has to

change its objectives or leave the sphere of its activities. In general civil society is very

flexible and finds its niche in every situation. NGOs, although, following their major

goal can widen field for their actions or widen their mandates. In the case of the

Coalition for the International Criminal Court, up to coming to their pre-determined

goal for which its members gathered together, the Coalition’s leaders had to decide if to

go further but change their aims or to become a legendary organization which created

the so long-waited permanent criminal tribunal. Their decision was to stay on the scene

and maintain more functions. So they stayed and expended their mission, time after time

adding new objectives to their “to do list.”

According to Heidi Nichols Haddad there are eternal and external mechanisms

that influence the process of extension of the NGO mission. Internal mechanisms which

impact the extension of the genuine objectives of organization are following:

bureaucratic rule-based, expert authority, innate desire for expansion, response to

success, overly broad vision, pragmatic self-survival, and perceived ancillary needs.

External mechanisms occur to be donor pressure and state pressure. 230

The history of CICC expansion might be divided into four phases, which follow

development and structural changes of the ICC: “the inclusion of a goal of universal

ratification of the Rome Statute; the inclusion of NGO expertise consultations with the

ICC along with the permanent presence of the CICC at The Hague; the inclusion of

NGOs as court monitors and critics; and the inclusion of NGOs as de facto Court

appendages through local outreach programs.” 231

Apparently, as the CICC is the NGO worldwide network number of mechanisms

of mission creep can be traced during the process of expansion of the Coalition’s

mission. One that is crossing the whole process until today is that of perceived ancillary

needs.

230 Heidi Nichols Haddad, Advocacy Mission Creep: Non-Governmental Organizations and the International Criminal Court, Paper presented at the annual meeting of the Theory vs. Policy? Connecting Scholars and Practitioners, available at http://www.allacademic.com/meta/p415681_index.html last viewed on 9.04.2010. 231 Ibid.

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During the process of the Court becoming a functional body, the CICC embraced

number of deficiencies or conceived needs of public goods and services by the Court.

As the needs of the Court have been changing, so has been the CICC (see Table 1).

Table 2: Timeline of the ICC History and Stages of CICC Mission Creep

ICC History Stages of CICC Mechanism of Mission Creep

1998—Rome Statute written

2000—Stage 1: CICC expands mission to include universal ratification once it realizes that 60 ratifications are imminent

Perceived ancillary needs

2002—Rome Statute entered into force (60 ratifications)

2002-3—Stage 2: CICC expands mission to include NGO expert consultations with the ICC and permanent CICC presence at The Hague

Perceived ancillary needs; response to success; expert authority

2005-6—First arrest warrants issued and pre-trial hearings begin

2006—Stage 3: CICC expands mission to include trial monitoring of the ICC

Perceived ancillary needs; overly broad vision

2009—First trial begins 2009—Stage 4: CICC expands mission to include conducting operation functions (outreach) on behalf of the ICC

Perceived ancillary needs; overly broad vision

Source: Heidi Nichols Haddad, Advocacy Mission Creep: Non-Governmental Organizations and

the International Criminal Court, Paper presented at the annual meeting of the Theory vs. Policy? Connecting Scholars and Practitioners, available at http://www.allacademic.com/meta/p415681_index.html

Supposable needs of the Court and stunning success in obtaining of necessary

number of ratifications for the start of ICC function, in addition to broad vision of the

role of the Coalition, as the one to obtain visible and universal justice, pushed to

expansion of the CICC goals.

The tremendous achievements on the Rome Conference and the following

ratification of the Rome Statute for creation of functioning permanent criminal tribunal

presented compliance of the genuine mission of the NGO Coalition for the International

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Criminal Court: “to advocate the creation of an effective and just International Criminal

Court”232

The first mission expansion of the CICC happened earlier than the sixty

ratification goal was fulfilled. Two years before that happened it was already obvious

that by the middle of 2002 this aim would be achieved. The next item was traced to be

added into the Coalition’s mission list: “promoting the universal acceptance and

ratification of the Rome Statute, including the adoption of comprehensive national

implementing legislation following ratification.”233

The CICC expended the sphere and competency of its already existing advocacy

function not taking any additional duties. The original aim to reach sixty state

ratifications was continued to reach universal ratification of the Statute. 234 The CICC

was still focused on advocacy and policy change, working as demand-side

organization.235

The second phase of mission expansion was devoted to the process of

construction of the Court. During the period from 2002 to 2003 their mission statement

included: “ensuring that the appropriate mechanisms are in place for the Court to begin

functioning effectively as early as possible,” 236 “providing legal advice and research to

the International Criminal Court,”237 and “facilitating the presence of Coalition

members in the Hague.” 238 Expending its mission the CICC this time took brand new

obligations which responded more to providing services not advocacy, which totally

changed the original purpose of the Coalition.

From this turn the Coalition hybridized itself engaging simultaneously in

advocacy and providing services, because although its started new tasks it hasn’t drop

the older ones, its duty for providing the universal ratification campaign was being

fulfilled, adding providing expert services and consultations. These intentions were

exposed by Tanya Karanasios, the CICC program director:

232 ABCs of the ICC, ICC Monitor, Issue 1 July, 1996. 233 About the Coalition, ICC Monitor, Issue 21, June 2002; The NGO Coalition for an ICC, http://web.archive.org/web/20000816200640/http://www.iccnow.org/html/coalition.htm last viewed on 10.04.2010. 234 New Goals Identified for Next Phase of ICC Advocacy, ICC Monitor, Issue 21, June 2002. 235 Heidi Nichols Haddad, Advocacy Mission Creep: Non-Governmental Organizations and the International Criminal Court. 236 New Goals Identified for Next Phase of ICC Advocacy, ICC Monitor, Issue 21, June 2002. 237 About the NGO Coalition for the ICC, ICC Monitor, Issue 25, September 2003. 238 Ibid.

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“During the coming year, the Coalition’s efforts will take on a heightened

importance as we continue advocating for universal ratification and strong

implementation of the Rome Statute and Agreement on Privileges and Immunities; and

work to strengthen critical partnerships with local civil society around the world. While

these core goals will continue, our members’ efforts to engage in the provision of expert

advice on the policies and procedures on key issues affecting the Registry, Office of the

Prosecutor and Presidency have surged. These issues include victims; defence; elections

of court officials; the budget of the ICC; communications and outreach.”239

Although this mission expansion was quite complex and hybridized the

Coalition’s responsibilities into providing some extensive expertise functions, the CICC

was still strongly advocating for the advancement of the ICC and worked cooperating

with the Court receiving benefit for itself. As it was mentioned after one of the regular

meetings:

“The CICC and its members very much appreciate the opportunity to consult with

ICC officials through what is now a well-established bi-annual event on the ICC-NGO

calendar. These meetings have confirmed the important role of civil society in relation

to the ICC as the Court develops into new areas, and have improved mutual

understanding. Indeed, during these meetings, the Court benefits from coordinated and

expert NGO input in an effective and useful manner while NGOs receive focused

information on their issues of interest which will enhance their capacity to understand

and support the Court. The consultations also reflect the diverse interests and varying

priorities of NGOs, which is one of the strengths of the Coalition.”240

However, stepping into another stage of mission expansion, the functions of the

CICC radically changed friendly and supportive relationships with ICC into critical

monitoring functions.241

The third phase of mission expanse took its commencement after the ICC began

its functioning in 2005-2006. This was the period of time when the Court began to hold

investigations, issue arrest warrants, and began pre-trial hearings. Still not abandoning

its prior functions, the CICC once again expanded its goals to include trial observation,

reporting and monitoring. Although those functions were not new for the CICC, it took

239 CICC: Looking Ahead, ICC Monitor, Issue 27, June 2004. 240 NGOs Consultations with ICC Organs, ICC Monitor, Issue 29, April 2005. 241 Heidi Nichols Haddad, Advocacy Mission Creep: Non-Governmental Organizations and the International Criminal Court.

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another level or other items to be monitored. If, for instance, before it was busy with

assessment and distribution of information about the development of the ICC

negotiations, ratification and construction, so since expansion the CICC began its

observation on the ICC and monitor its compliance with policies and procedures and

overall effectiveness in administering justice. This monitoring included courtroom

oversight, and reports about the successes and failures of the Court on specific items, 242

such as communications and outreach,243 for example.

To practice in monitoring the ICC trials, gain new attainments, figure out outstanding

questions, and guide member NGOs’ actions the CICC organised a two-day Trial

Monitoring Meeting at the Hague Secretariat in May 2006.244 Since that movement the

CICC has often been critical towards the ICC, the phase of cooperative interaction has

taken the crucial turn point. As the CICC stated in one of its reports: “[We] do and will

criticize the Court for what we see as deficiencies in its policies.”245

After this step of expansion the CICC functions completely hybridized including

advocacy and service (expertise and monitoring). According to its crucial changes in its

mission, the CICC changed its main purpose. The CICC substituted its prior aims by

couple of new blurred propositions: “protecting the letter and spirit of the Rome

Statute”246 and “facilitating involvement and capacity building of NGOs in the ICC

process.” 247 As well, the CICC changed its handling of the previous goal for the

creation of a Court to its advocating, although not specifying functions to reach that

purpose: “The Coalition for the International Criminal Court (CICC) advocates for a

fair, effective, and independent ICC.” 248 Widening the CICC mission in this way,

without no specifics of its functions, the Coalition managed to achieve the purpose of

ideal mission “that could serve as an umbrella justification for an endless variety of

242 Heidi Nichols Haddad, Advocacy Mission Creep: Non-Governmental Organizations and the International Criminal Court. 243 Making Justice Visible, CICC Website, http://www.coalitionfortheicc.org/?mod=communications last viewed on 12.04.2010. 244 ICC Trial Monitoring: What? Who? How? Insight on the ICC, Issue 8, July 2006. 245 CICC Report: International Criminal Court and Sudan: Access to Justice and Victims’ Rights, Roundtable, Khartoum, 2-3 October 2005. 246 About the Coalition, available at http://web.archive.org/web/20060616125711/iccnow.org/?mod=coalition&PHPSESSID=7135a80c9f6933fc8d75a658f9f1601a last viewed on 12.04.2010. 247 Ibid. 248 About the NGO Coalition for the ICC, The Monitor, Issue 33, November 2006.

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functions [and would provide] the implementation of an overly broad mandate that was

neither concrete nor measurable” 249

The last, forth, stage of mission extension of the CICC into de facto appendages or

distensions of the ICC is a brand new phenomenon and is still in the beginning of its

development. It took its commencement in the beginning of 2009 and was related to

investigations and trials hold at the ICC. Carrying through investigations and trials, in

fact, requires help of the local civil society and victims rights groupings, to provide on-

the-ground outreach and coordination. According to the ICC limitations, the CICC

started the process of provision of its abilities outreaching and facilitating relationships

with local civil society groups and the Court, on the Court’s behalf. According to Schiff

the ICC today is totally dependant on NGOs and their activities on-the-ground, which,

as a result, blurred already thin boarders between the ICC and NGOs. 250

As the CICC mission broadened the self-described purpose has broadened as well

and continued to include abstract ideas. The latest self-description sound as follows:

“The Coalition for the International Criminal Court includes 2,500 organizations around

the world working in partnership to strengthen international cooperation with the ICC;

ensure that the Court is fair, effective and independent; make justice both visible and

universal; and advance stronger national laws that deliver justice to victims of war

crimes, crimes against humanity and genocide.”251

Today, according to the words of Heidi Nichols Haddad, the CICC: “[The]

CICC has morphed from a streamlined advocacy organization intent on creating an

International Criminal Court to an organization with abstract goals that engages in

advocacy and information campaigns surrounding universal ratification, expertise

consultations with the Court, permanent trial monitoring, and outreach and NGO

facilitation on behalf of the ICC.”252

249 Heidi Nichols Haddad, Advocacy Mission Creep: Non-Governmental Organizations and the International Criminal Court. 250 Benjamin N. Schiff, Building the International Criminal Court, Cambridge University Press, 2008, 320 pages. 251 About Us, The Monitor, Issue 39, November 2009 – April 2010. 252 Heidi Nichols Haddad, Advocacy Mission Creep: Non-Governmental Organizations and the International Criminal Court.

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2.2 The Interaction between NGOs and the ICC in investigation and prosecution of crimes

2.2.1 Providing of information to the Court

According to Article 13 of the Rome Statute, the court obtains jurisdiction over

situations “referred to the Prosecutor by a State Party,” or “referred to the Prosecutor by

the Security Council acting under Chapter VII of the Charter of the United Nations,”

and situations investigated by the Prosecutor in accordance with Article 15 of the Rome

Statute,253 which provides that “[t]he Prosecutor may initiate investigations proprio

motu on the basis of information on crimes within the jurisdiction of the Court.”254 In

addition, it gives the right to the prosecutor to intercede “additional information from

States, organs of the United Nations, intergovernmental or non-governmental

organizations, or other reliable sources that [the Prosecutor] deems appropriate” to

analyze the reliability and validity of information the prosecutor has received

concerning a situation.255

Celebrating his third year as a chief prosecutor Moreno-Ocampo called for the

continued help of NGOs in raising awareness about the court across Africa, in

supporting witnesses and victims and in collecting evidence from the field.

He pronounced to the audience of NGOs and journalists that he “[wants] to

increase [their] participation so that [they] help [him] to get gender-based evidence, as

[his group f investigators] cannot present a case without evidence.” He added, “To

enlarge victim participation, we encourage your help.”256

NGOs are playing a central role before, during and even after an investigation.

They perform their help in three main dimensions. First, NGOs spread information

about the Court, informing the media and the general public about its work. They use

radio, leaflets, posters, conferences and information sessions to obtain this goal.

Second, NGOs provide information to the Office of the Prosecutor about

committed crimes that fall under the ICC mandate, in specific case they produce reports

253 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, art.13. 254 Ibid, art.15. 255 Ibid, art.15 (2). 256 NGOs defend their role of providing evidence at the International Criminal Court, Institute for War and Peace Reporting, 08/12/2006 News release, available at http://www.iwpr.net/report-news/ngos-defend-icc-role-lubanga-case last viewed on 13.04.2010.

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which contain the information about the historical and political context of human rights

abuses, the capacity or will of a state to investigate or prosecute crimes. This

information could be helpful when the Prosecutor makes the decision to open or not an

investigation in precise region or state.

Third, the NGOs are usually playing an essential role by conducting victims and

witnesses throughout the process of providing evidence to the Office of the Prosecutor,

because NGOs, working on-the-ground can often be closer to the victims and witnesses.

Their help includes informing victims and witnesses about procedures at the Court and

preparing their work with the Court for example by giving them all necessary

information about security risks, helping them to take action collectively, and putting

their information into a form most easily used by the Office of the Prosecutor. 257

Non-governmental organizations (NGOs) particularly human rights NGOs are

often one of those first who appear on the scene of conduction of atrocities and

entrenchments of human rights and humanitarian law. Genuinely, NGOs documented

violation, to drawn attention of international community to ongoing conflicts and

contacted grave crimes. However, since the establishment of the International Criminal

Court, the scope of documentation has changed, because crimes and violations

documented by NGOs can become the subject of a criminal prosecution before the ICC.

NGOs in fact play an important role in relation to the Court’s investigations.

Regarding their work on-the-ground they can get a clear and original knowledge of

atrocities and contact with victims and witness of those violations, which could be

helpful for the case investigations. In addition, NGOs appearing one of the first in the

problematic regions, can document violations directly after they occur and to collect

information concerning examples of violations. Actually, in some occasions NGOs

appear to be the main source of information attracting the ICC Prosecutor’s attention to

situations where violations took place. 258

The ICC Office of the Prosecutor (OTP) is obliged to “[receive] referrals and any

substantiated information on crimes within the jurisdiction of the Court, for examining

them and for conducting investigations and prosecutions before the Court.” 259 After

257 Human Rights Watch, The International Criminal Court: How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals, September 2004. 258 Human Rights First, The Role of Human Rights NGOs in Relation to ICC Investigations, The Hague September 2004. 259 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (July 17, 1998), 2187 U.N.T.S. 90, art. 42(1).

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analyzing of all received information the OTP identifies the accused person, and the

Defence starts to carry on its own investigation. However, starting the investigation it is

usually possible that they would be not the first to come on the scene of the crisis,

during which the crimes under Rome Statute have been committed.

Frequently, international agencies as United Nations and other humanitarian

agencies could already be conducting their work. Restoring and maintaining stability,

and providing humanitarian relief, which are their primary duties under their mandate,

they could often possess information that later can be crucial to a criminal case, and in

several situations such agencies could be charged to investigate different violations. The

best example of such situation can be MONUC, the UN mission in the Democratic

Republic of the Congo (DRC), when its genuine mandate later on included the task to

document the massive violations of human rights in the Eastern DRC. 260 As it was

already mentioned, NGOs could appear on the scene first, carrying out assistance to

arriving refugees, for example. While performing its direct obligations, UN agencies as

well as NGOs might receive a lot of information from victims and witnesses.

Additionally, some international and local NGOs will arrive fast to document

violations and to constate what happened. Number of NGOs will be already working

on-the-ground, others will join to investigate and document the crimes.

Usually, collecting information for their reports and documenting violations, NGO

members work in difficult and dangerous situations. However, they are working and in

each situation that reaches the jurisdiction of the ICC, it is possible to trace the NGOs

involvement, because the documents the NGOs produces as the result of its fact-finding

activities are often used by the ICC Prosecutor, to gather evidence against the

accused.261

NGO members are endangered and have to be aware of that, because even though

they are working to collect information, for the sake of the ICC cases, the ICC doesn’t

have possibility to provide security for all who brings information. However if in the

260 The Security Council empowered MONUC to include a human rights component, and MONUC teams have several times investigated assertion of specific violations; for example, in December 2002 a MONUC team was obliged to conduct an investigation concerning an assertion that grave violations took place in Mambasa and the surrounding area. The team interviewed over 350 eyewitnesses. See Thirteenth report of the Secretary-General on MONUC (S/2003/211), February 21, 2003. 261 Human Rights First, The Role of Human Rights NGOs in Relation to ICC Investigations, The Hague September 2004.

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result of their contribution of information to the Court any attack on human rights

defenders will occur, the Court must be informed about that. 262

NGOs have the possibility to provide a broad picture of the environment in which

violations descended and present illustration of the events. In addition, as it was already

emphasised NGOs can be able to document violations shortly after they have happened,

maybe even before people scatter or evidence is lost. In some occasions NGOs are

much more helpful than the results of the obligatory cooperation of States which ratified

the Rome Statute. The ways in which NGOs can potentially cooperate with ICC during

its investigations are the following:

• “Map or document patterns of violations

• Conduct forensic examinations

• Publish reports and other information on violations

• Submit information on violations to national courts or the ICC

• Provide general legal memoranda and research assistance to national courts or

the ICC

• Monitor and report on national proceedings in public or submissions to the ICC

• Explain the ICC, in particular the role of the OTP, to affected communities

• Advise the OTP on communication with victims and witnesses in affected

communities

• Provide the ICC with information regarding displacement of people and flows of

refugees

• Identify potential witnesses and act as a channel to reach and gain trust of such

individuals for the OTP

• Advise the ICC on witness protection Provide support to victims or witnesses –

such as psychological, medical and humanitarian support – after they have been

interviewed by the OTP

• Organize victims for the purpose of participation and reparations

• Provide training to lawyers who might represent victims or suspects or accused

• Act as amicus curiae in court proceedings” 263

262 Human Rights Watch, The International Criminal Court: How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals, September 2004. 263 Human Rights First, The Role of Human Rights NGOs in Relation to ICC Investigations, The Hague September 2004.

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Nongovernmental organizations from all parts of the world, large and small,

international and local, document human rights atrocities on a daily basis.

According to Amnesty International’s web site:

“We search out the facts. We send experts to talk with victims, observe trials and

interview local human rights activists and officials. We monitor thousands of media

outlets and maintain contact with reliable sources of information all over the world. Our

research is carried out by expert staff, supported by specialists in a range of fields such

as international law, media and technology. We publish detailed reports. We inform the

news media. We publicise our concerns in leaflets, posters, advertisements, newsletters

and websites.264

Human Rights Watch’s web site states:

“Human Rights Watch researchers conduct fact-finding investigations into human

rights abuses by governments and non-state actors in all regions of the world. We visit

the site of abuses to interview victims, witnesses and others. We publish our findings in

dozens of books and reports every year.”265

Providing information confirming atrocities genuinely NGOs will be in touch with

the Office of the Prosecutor. However, they can send appropriate information to other

branches of the Court. In addition they are allowed to submit legal documents called

Amicus Curiae briefs to any of the Chamber. Eventually, NGOs representing victims

can also directly address to the Court, and have the possibility to participate in the

proceedings in case they where violated as well. Moreover, they may send information

concerning precise case to a government Party of the ASP or even to the Security

Council of UN, with the purpose to ask them to refer a case to the ICC.

NGOs on the regular base publish numbers of reports on human rights crimes

which might be grave crimes and fall under the jurisdiction of the ICC. In case those

kinds of crimes took place in some region, and NGOs have documented them, they are

sending the most solid reports on the most serious crimes to the Prosecutor. One of the

examples of NGO reports’ influence can be counted stimulation of the investigation in

DRC. Six communications concerning the situation in Ituri were sent to the Prosecutor,

and two of them were reports from nongovernmental organizations. Certainly, the

264 Amnesty International, Frequently asked questions, available at: http://www.amnesty.ie/amnesty/live/irish/aboutai/faq.asp?page=2152 last viewed on 15.04.2010. 265 Human Rights Watch, Some Frequently Asked Questions About Human Rights Watch, available at: http://www.hrw.org/en/node/75138#3 last viewed on 15.04.2010.

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reports received form NGOs propelled the Prosecutor to recognize the situation in Ituri

as one of the most urgent to be followed. 266

NGOs are sending great amount of information to the Prosecutor’s office, and

although there in no specific form of the submission or any exact list of all the kinds of

information that NGO reports could include, when an NGO sends information about

human rights violations, it should include the following:

• “Location (in DRC: province, territory, collectivity, groupement; in Uganda:

district, county, sub-county),

• Time, date, and duration of the incident

• Chronology of the incident

• Nature of crime (i.e. torture, rape, killings), and methods used

• Possible reasons for the incident

• Identity of alleged perpetrators (the army, armed group, or individuals involved)

• The identity of the victim (name, age, gender, occupation, address, relevant

information about ethnicity, religion, or other affiliation)

• A list of evidence available such as photos, written records. However do not send

the evidence itself unless requested by the Prosecutor.” 267

Although NGOs are providing information on crimes which they collect in the

scope of their everyday work, they are not expected to work as “mini-prosecutors.” It is

the role of the OTP to hold the investigation and gather strong evidence that could be

useful for the case and be used in the Court.

Brigid Inder from the Women’s Initiative for Gender Justice made it clear that it is

not the work of NGOs to do “shadow investigations for the court”, which has the

resources to conduct good investigations on its own.”268

If the Prosecutor is carrying out the investigation in some specific areas of the

state – like Ituri in the DRC, or North Uganda – it doesn’t bound NGOs to those areas;

they are eligible to provide information on crimes all over the territory, not

concentrating on specific region.

266 Human Rights Watch, The International Criminal Court: How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals, September 2004. 267 Ibid. 268 NGOs Defend ICC Role in Lubanga Case, Institute for War and Peace Reporting 01/12/2006 News release available at http://www.iwpr.net/report-news/ngos-defend-icc-role-lubanga-case last viewed on 13.04.2010.

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Additionally to all the factual information NGOs provide to the ICC, they are also

allowed to send to one of the Court Chambers a legal analysis or policy arguments in a

form of Amicus Curiae (“Friend of the Court”). The Amicus Curiae brief must be

prepared by the professionally interested organization on the issue of the brief. It

presents not only the concern on some specific issue, but also gives suggestions to the

Court how to settle the matter. NGOs receive the opportunity to be heard on several

legal and practical items submitting an Amicus Curiae brief. 269

However, although a great number of NGOs support the ICC’s aims and remit,

engagement with the Court raises some challenges:

• “If ICC investigations are undertaken during ongoing conflict,

association with the investigation can potentially put children and their families

in danger.

• The ICC is a political body; engaging with it can erode NGOs’ impartial

stance, which can affect the security of the people they work with and that of

staff members, as well as access to communities where they want to work.

• Its political nature also means locally-led peace processes that may be

ongoing could be disrupted.

• In practical terms, collecting evidence can be difficult because most

NGO staff are not trained investigators.

• NGOs’ first priority is to protect the confidentiality of their beneficiaries.

• NGOs may not have the capacity to appropriately document cited

violations.”270

The most prominent example of collision of NGOs usual duties and engagement

into ICC investigations led to expulsion of NGOs from Sudan, the President of which

was announced accused by the ICC. “Since 2003 the United Nations has been using

NGOs as part of a massive humanitarian aid effort it oversees for internally displaced

persons in Sudan's conflict-torn western Darfur region. It [provided] food and other aid

for some 4.7 million people and [said] its operations [were] neutral and impartial.”

Meanwhile, regarding all the NGOs’ denials about provision of any help to the

Court, people of Sudan are left on their own force. In 2009 it was published by Reuters:

269 Human Rights Watch, The International Criminal Court: How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals, September 2004. 270 How can NGOs participate in the ICC's work? International Criminal Court (ICC), Children Rights Information Network, available at http://www.crin.org/courts/icc.asp#ngo last viewed on 13.04.2010.

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“The United Nations has said it is not aware of any cooperation between NGOs and the

court, while the NGOs say they have refused to assist the ICC because it would

undermine their humanitarian goals…. [However], Bashir said on Monday that he wants

all foreign aid groups to halt activities in Sudan within a year.”271

271 Louis Charbonneau, NGO expelled from Darfur considered ICC cooperation, 16/03/2009 News release, Reuters, available on http://www.reuters.com/article/idUSN16528406 last viewed on 13.04.2010.

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2.2 NGO assistance to victims and witnesses

ICC investigations can cause variety of security risks for vulnerable victims and

witnesses, and human rights NGOs, which are involved in the process of the Court’s

investigation, have to create a strategy how to protect and help victims and witnesses

and use maximum efforts to do that.

It is first important to clarify the Court’s concept of a victim. Rule 85 defines

victims as follows:

“For the purposes of the Statute and the Rules of Procedure and Evidence:

• “Victims” means natural persons who have suffered harm as a result of the

commission of any crime within the jurisdiction of the Court;

• Victims may include organizations or institutions that have sustained direct harm

to any of their property which is dedicated to religion, education, art or science or

charitable purposes and to their historic monuments, hospitals and other places and

objects for humanitarian purposes.”272

In its turn witnesses according to the Human Rights First “are individuals called

by the Prosecution or the Defence to give testimony to the Court, including victims,

persons who saw a crime committed experts, or relatives of a suspect.” 273

The ICC has one innovative feature concerning the victim’s participation in the

Court. It is allowed for victims to ask the Court to express their position during the

proceedings, which means that it is an opportunity to bring the viewpoint of the victims

to the Court. 274 In addition the ICC is the first internationalized court that has really

incorporated a victim-friendly prospect into its nature. The Statute:

• “recognizes the right of victims to be protected and to be treated with

dignity and respect throughout the process;

• enables victims to be active participants in the justice process; and

• allows victims to apply for reparations to the Court” 275

272 ICC Rules of Procedure and Evidence, Rule 85, “Definition of Victims.” 273 Human Rights First, The Role of Human Rights NGOs in Relation to ICC Investigations, The Hague September 2004. 274 Miriam Cohen, Victims' participation rights within the International Criminal Court: a critical overview, Denver Journal of International Law and Policy, 2009. 275 Carla Ferstman, NGOs and the role of victims in the International Criminal Justice, Redress, Oslo 2006.

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These rights are forethought to make the court more available to victims and more

responsive to their needs. NGOs were the one of those vigorous advocators of victim-

friendly system, and after it has been established, their duty is to make sure that it works

in practice.

The Prosecutor or the Defence might call some victims as witnesses to testify in

Court. However, victims cannot apply to become witnesses, because only the

Prosecution or the Defence decides whom to call as witnesses. 276

NGOs usually become a so called bridge between victims and witnesses and the

Court:

• “They can send information gathered from victims and witnesses to the Court

• They can inform victims and witnesses about different possibilities of

participation in the Court proceedings, and assist them in this participation

• They can help victims and witnesses get legal representation

• They can represent victims at any stage of the trial

• They can help victims and witnesses organize themselves in groups

• They can help victims apply for reparations

• They can inform victims and witnesses about the security risks involved and help

them take measures for their protection” 277

Although, working with victims and witnesses to collect evidence of atrocities and

gathering evidences, NGOs do not working as agents of the Court, but collect their

information independently, as part of their own work, although they might later submit

some or all of this information to the Court.

NGOs collecting information provided by victims and witnesses are usually taking

a summary of the information and provide it to the Prosecutor’s office, along with

information about how the victim or witness can be contacted in the future, and

certainly NGOs seek the agreement of the victims and witnesses when doing so.

However, if NGOs are experienced they are preparing formal, verbatim statements – if

victims or witnesses insist on that – which they send to the Prosecutor. While working

this way, NGOs have to be sure not to comment on or edit any of the statements made

by victims and witnesses or any documents that they want to submit to the Prosecutor’s

Office.

276 Human Rights Watch, The International Criminal Court: How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals, September 2004. 277 Ibid.

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In addition, NGOs are able to help to decide victims if they want to apply to

participate in a case in three ways, which are the following:

• “NGOs can help victims assess the security risks that might arise for the

victim from participation in a case. They can also take protection measures

on the local level.

• NGOs should explain to victims the different stages of examination and

formal investigation. NGOs should encourage those victims to apply

whose cases are connected with the situation under investigation; and they

should discourage others from making contact with the Court.

• NGOs can assist victims in filling in the forms needed to apply for

participation in a case. Victims can apply for participation when a formal

investigation has been launched or even before that if the Prosecutor has

launched an investigation on his own initiative.” 278

Assisting victims and witnesses in providing evidence to the Office of the

Prosecutor NGOs can also help victims to apply to be heard in the Pre-Trial Chamber

after the Prosecutor has decided not to prosecute a case commenting that as an interest

of justice. NGOs would also assist the victims while presenting their opinions.

NGOs could help victims to find a trusted specified lawyer, who would represent

them in the Court, or ever propose a lawyer to the Court which is choosing legal

representatives for victims and witnesses in case they don’t have one. Furthermore,

NGOs have a right to help victims to organize themselves into groupings and look for

common legal representation.

Additionally, NGOs ensure safety and confidentiality of victims and witnesses.

Their functions to achieve this purpose include close observation of the progress of the

trial, which gives them a chance to ensure that the Court respects its own rules. NGOs

are facilitating victims pushing for better protection measures if possible, and help

victims to understand all the limitation of the Court. In some cases NGOs themselves

take precautionary measures to protect victim’s and witness’ identity. For instance, not

sending any possible documents or victims or witnesses testifies to the Court without

their agreement for that being done, after they were informed about all possible security

implications.

278 Human Rights Watch, The International Criminal Court: How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals, September 2004.

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There is a range of measures NGOs can take to protect the confidentiality of

information:

• “regularly carry out risk assessments;

• join national and international human rights networks;

• build channels with security officers;

• ensure security of the office premises and control the flow of visitors;

• recruit people you can trust;

• be discreet about your interactions with the International Criminal Court;

• always be careful about what you say on the phone, in emails, faxes, and letters;

possibly using code words for sensitive information or using encryption;

• use the addresses of other trusted organizations for sending and receiving mail;

• interview victims and witnesses without other persons present;

• interview victims and witnesses in a location and in circumstances that do not

arouse the interest of outsiders ask a local contact to interview the victim or ask the

victim to come to you, in order to avoid raising suspicion through your visit;

• change plans where necessary, for example if you realize you are being

followed;

• store the information about the interview safely, i.e. use passwords and

encryption;

• keep notebooks in safe locations;

• delete the name of the source of information from your notes;

• avoid using information that could easily betray the identity of the informant.” 279

NGOs working for the sake of those who are in need was summarised by the

Redress – internationally focused non-profit legal/human rights organisation, which

helps torture survivors to use available international sources to obtain reparation and

campaigns for effective remedies where they do not exist280 – which have determined

that:

• “NGOs have been extremely effective at lobbying to get systems in place –

at the international level, making recommendations on adequate systems of

protection, calling for greater field presence; budget process; providing

training to investigators; general outreach. 279 Human Rights Watch, The International Criminal Court: How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals, September 2004. 280 REDRESS web page http://www.redress.org/smartweb/home/home last viewed on 21.04.2010.

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• NGOs have had reasonable success at working with Court officials to

develop procedures to implement the Statute and Rules of Procedure and

Evidence. This is an ongoing process;

• NGOs have brought experts to the Court with experience in claims

processing and reparations. The Court is independent and will take its own

decisions about process and procedures, but there has been reasonably

good input and monitoring of the Court’s procedures.

• NGOs have been reasonably effective at broad outreach to make known

the Court and its mandate.” 281

Analysing the role of NGOs in the issue of victims and witnesses it is a must to

mention that although they are crucial in this item, they cannot replace the Court, NGOs

can only assist it.

281 Carla Ferstman, NGOs and the role of victims in the International Criminal Justice, Redress, Oslo 2006.

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Conclusion

Concluding this work it is substantial to allocate that the hypothesis pronounced in

the beginning was endorsed. As a result of a conducted research it is reasonable to state

that NGOs are truly an integral force in the process of broadening the authority of

international criminal law through engagement in establishment and maintaining of

agenda of international institutions practising international criminal law.

This research was concentrated on actual involvement of civil society in the face

of the NGO Coalition for the International Criminal Court into the process of creation

and functioning of the permanent tribunal in the form of the International Criminal

Court, which is sitting in the Hague and exercises its jurisdiction over the most severe

crimes, enlisted in its Statute, which are genocide, crimes against humanity and war

crimes.

Holding an historical outlook on the work of the Coalition taking beginning from

its establishment in 1995, when the idea about the international criminal court finally

received proper attention in the international governing circles after the Cold War, until

recent times, it was noticed that the holding substance of all those motivated to create

the Court was a handful of NGOs, which enriched its rows to more than 2500 today.

Thus, words of Badinter now more than ever appropriately emphasize that:

“It is up to the NGO Coalition's dedication to humanitarian actions, which have

already played as important part in the creation of the Court, and public opinion, so

important in contemporary democracies, to see to it that the promise of this new judicial

dawn comes to fruition.” 282

NGOs regarding their organization, strong belief and confidence in their actions

achieved their pre-determined goal earlier than even the most devoted believers

expected. It is NGOs merit that the Rome Statute became reality and was the result of

only five weeks of negotiations, which also were prepared and held not without a

motivated involvement in the process of negotiations and strong influence on the

participants of the CICC. Their fingerprints can be found in every phase of development

of the Court, especially in the process of its establishment, which required at least 60

ratifications to make the Court work. Since the very birth of CICC its goal was to create

282 Robert Badinter, International Criminal Justice: From Darkness to Light, in The Rome Statute of the International Criminal Court: A Commentary, eds. Antonio Cassese, Paola Gaeta, and John R. W. D. Jones, Oxford: Oxford University Press, 2002, p. 1935.

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an independent, fair and effective Court, which pushed it to go further than the

conference and the Statute, and brought the Coalition to the function of promotion of

ratification of the Rome Statute to achieve 60 ratifications and bring the Court to life,

which they reached in surprisingly short term, and by 2002 it was the Court that was

established and brought into being.

Regarding the Coalitions flexibility its role in the life of the ICC hasn’t become a

legend, but moved further. Since their mission of creation of the Court was fulfilled they

widened their functions and later widened their spectre of work. Except its regular

functions like promotion of the establishment of the Court and education and awareness

of ICC development, production of newsletters, media advisories, reviews and papers

on the developments of the Court, any facilitation of the negotiations in Rome, and after

the adoption of the Rome Statute encouragement of ratification of the Statute, the

Coalition following the development of the ICC, added new objectives or widened its

previous one. In this scope the CICC first expanded its mission including universal

ratification once it realizes that 60 ratifications are imminent; than embodying NGO

expert consultations with the ICC and permanent CICC presence at The Hague; and

lately adding trial monitoring of the ICC and conduction of operation functions

(outreach) on behalf of the ICC to its function. Slightly becoming not only the promoter

of the ICC but simultaneously criticizing and monitoring the ICC’s work.

Although the Coalition has changed its objectives, NGOs its members are

facilitating the Court conducting its direct work. While the ICC is investigating crimes

under its jurisdiction in specific regions or monitoring situations in other conflict areas,

variety of NGOs are working side to side with it. Those organizations are usually

working on-the-ground and are having more access to some evidences or witnesses and

victims crucial for cases, so they are collecting all accessible information and contacting

all possible individual whose statements could be useful for cases and generalizing the

collected information in a range of reports are sending them to the Prosecutor. In its turn

Prosecutor learning the information submitted by the NGOs can decide if to open an

investigation in that or another region. This means that NGOs information can be

crucial and influential as much as to become an impact for the case to be opened.

In addition to supplying the Court with the information on severe violations of

human rights, they are working as a bridge between victims and witnesses and the ICC.

NGOs send information gathered from victims and witnesses to the Court; inform

victims and witnesses about different possibilities of participation in the Court

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proceedings, and assist them in this participation; help victims and witnesses get legal

representation, organize themselves in groups, apply for reparations; represent victims

at any stage of the trial; inform victims and witnesses about the security risks involved

and help them take measures for their protection. 283

NGOs cooperation with the ICC in some occasions can threaten them to be

expelled from the region – the case of NGOs working in Darfur, Sudan – and leave

people who need their help without it. However, the Court after the CICC investment of

so many efforts into it became dependant on their work. NGOs can be more flexible

than the Court itself and reach those areas which might be either unreachable for it or

the Courts stuff can be too late to work in there, because of different reasons. In

addition, NGOs provide help with victims and witnesses, and it is them who have more

possibilities to find and contact witnesses necessary for the case, and prepare them for

the work in the Court, which makes NGOs even more important and helpful. Plus, the

CICC still monitors all the proceeding held in the Court, and informs the publicity about

its work, which promotes the ICC itself.

To conclude, we might allocate that the ICC became dependant on the NGOs help

and it would be very hard task for it to conduct its functioning without this help. As a

result of so close cooperation and great involvement of NGOs into the work of the

Court, the CICC is even sometimes percepted as a part of the ICC itself, which once

again proves the pre-determined hypothesis.

283 Human Rights Watch, The International Criminal Court: How Nongovernmental Organizations Can Contribute to the Prosecution of War Criminals, September 2004.

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