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March 8 marks the celebration of International Women’s Day (IWD). The CICC calls on governments to promote justice for women by ratifying the Rome Statute and by implementing its landmark gender provisions at the national level.

“Countries are strongly encouraged to bring their national laws in line with the standards enshrined in the Rome Statute, both in terms of criminalizing the serious crimes contained in the Statute and by assuring that laws make full cooperation with the Court possible,” said CICC Convenor William R. Pace.

The Rome Statute is a powerful instrument for protecting women’s rights. The Statute’s provisions by targeting sexual crimes represent a historic advance for international justice: the Statute is one of the first international treaties to extensively address gender-based crimes as crimes against humanity, war crimes, and in some instances, genocide. Specifically, the Statute recognizes rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilizations, gender-based persecutions, trafficking of persons particularly women and children, and sexual violence as among the most serious crimes of concern to the international community as a whole.

The Coalition and women’s organization around the world will continue their tireless efforts after today’s celebration to make sure that violence and persecution of women are treated as they are: serious criminal and humanitarian law violations.[/lang_en

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The past week has seen two important decisions by the International Criminal Court (ICC). On February 3rd, the Court’s Appeals Chamber reversed Pre-Trial Chamber I’s decision of March 2009 not to include the crime of genocide in the arrest warrant against President Al-Bashir of Sudan. The Appeals Chamber directed the Pre-Trial Chamber to decide anew whether the arrest warrant should be extended to cover the crime of genocide based on the correct standard of proof.

Convenor of the Coalition for the ICC, William R. Pace commented that “this ruling was hugely significant as it could lead to the inclusion of charges of genocide for a sitting head of state and for the first time in the history of the court” It is also a key decision for the people of Darfur. Niemat Ahmadi, of the Save Darfur Coalition, commented that “the pursuit of justice is extremely crucial for the survival of our hope as Darfuri people…The ICC’s commitment to justice has set a great example for the rest of the international community to follow.”

The 8th of February then saw the judges of Pre Trial Chamber I unanimously decline to confirm charges of war crimes against Darfur rebel leader Bahr Idriss Abu Garda, meaning that his case will not move forward to trial. The Prosecutor had submitted that Abu Garda commanded an attack on the African Union Mission in Sudan (AMIS) at the Haskanita base in Darfur, Sudan in September 2007 which killed twelve AMIS personnel and wounded eight others. Although judges insisted that the case was of sufficient gravity, they established that they lacked evidence that Abu Garda participated in the common plan to attack the base. The prosecution is likely to seek to appeal the decision. At a later stage, the prosecution could again request that the judges confirm the charges against Abu Garda if supported by additional evidence. Pace explained that “the decision showed that the ICC judges abide by the strictest standards of fair trial including high respect for the presumption of innocence and serious examination of the evidence before them”.

It is important to recall that a request for summons to appear or, alternatively, arrest warrants was also made by the ICC prosecutor in November 2008 for two other individuals who allegedly participated in the Haskanita attack. These requests are still being examined by judges.

The investigation into the Darfur situation in Sudan was officially opened by the ICC prosecutor in 2005 after being referred to the Court by the United Nations Security Council. Three public arrest warrants have been issued against Ahmad Harun, Ali Kushayb and Omar al-Bashir. None of the outstanding warrants have been executed as the Sudanese government has openly defied and consistently refused to cooperate with the Court and the international community. Pace has responded, urging “…the Sudanese government, ICC states parties, other governments and international organizations to do their utmost to ensure that these three suspects face justice without delay.”

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The International Criminal Court (ICC) is by essence complementary to national criminal jurisdictions of States Parties. It is only seized if the State party is unwilling or unable genuinely to carry out the investigation or the prosecution (Art. 17(1) (a and b) of the Rome Statute).
The Democratic Republic of the Congo falls into the situation described in Article 17(1) (a and b), that of being unable genuinely to carry out investigations or prosecutions against alleged perpetrators of war crimes, crimes against humanity, or genocide. This is why the DRC referred its situation to the ICC Prosecutor after one or more crimes under the jurisdiction of the Court seemed to have been committed and had asked the Prosecutor to investigate this situation to determine whether one or more of the identified persons should be accused of having committed such crimes.
In this case, the ICC only tries military commanders and other superiors (Art. 28 (a and b)). In no way does this mean that those under their effective command and control who took part in the perpetration of war crimes, crimes against humanity and genocide as co-perpetrators or accomplices are thus considered innocent or should not be prosecuted and tried! This is where the responsibility of the State Party to the Rome Statute of the ICC is relevant. Indeed, the State must take every possible step so that the alleged perpetrators of the crimes are genuinely prosecuted while their superiors are tried by the ICC.

To date, the DRC is the country that has most benefitted from the action of the ICC (of all the cases before the ICC, three have been referred by the DRC, including The Prosecutor v. Thomas Lubanga Dyilo, The Prosecutor v. Bosco Ntaganda and The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui). However, the DRC has done little else to demonstrate its firm determination to fight impunity for serious crimes on its territory even though governmental authorities claim the DRC is the only African country to cooperate with the ICC. This is no favor for the Court.
The Congolese army, the national police and every other State-supported institution are full of military officials and civilians suspected of having committed international crimes-crimes committed alongside those being tried by the Court.

The case of Bosco Ntaganda, whom the Congolese government does not want to refer to the ICC in the name of “peace building” (despite an ICC warrant for his arrest) is a sign that casts doubt upon the determination of the DRC to fight against impunity for international crimes. Real and long-lasting peace can only result from justice and it thus has to be implied by a fight against impunity, which means punishing perpetrators of crimes and granting compensations to the victims. Thinking differently amounts to being wrong!

The process of harmonization between national law and the Rome Statute of the ICC confirms the principle of complementarity included in the Rome Statute. The inclusion of crimes under the jurisdiction of the Court in national law is really what makes the ICC a court of last resort while attesting the willingness of the State to genuinely prosecute on its territory the alleged perpetrators of crimes falling within the jurisdiction of the Court. As a reminder, the DRC has still not adopted nor promulgated the implementation bill for the Statute of the ICC which would guarantee that prosecutions are initiated to fight against such crimes at the national level.

The DRC should prosecute criminals under its jurisdiction- and in doing so-participate in the prevention of new crimes. The harmonization between national Congolese law and the Rome Statute of the International Criminal Court is a precondition.

Yet, the DRC will have to go even further in is stated “willingness” to fight against impunity for serious crimes by applying the principle of universal jurisdiction as other States parties, such as Belgium, Germany, Senegal and the United Kingdom already do. This would enable Congolese courts to prosecute the perpetrators of international crimes wherever the crimes was committed in the world.

Prince Albert Kumwanba N’Sapu is a researcher with the Congolese NGO Action Contre l’Impunité pour les Droits Humains (ACIDH/RDC).

Translation from French is informal and provided by CICC secretariat.

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Eugène Bakama Bope is the President of Club des amis du droit du Congo (CAD).

The 11th Anniversary of the Rome Statute comes on the heels of the heated, anti-ICC meeting of the African Union earlier this month in Sirte, Libya.

There, some African heads of state adopted a resolution suspending their cooperation with the ICC in retaliation for the Court’s arrest warrant for Omar Hassan

Ahmad Al-Bashir, the president of Sudan, on charges of war crimes and crimes against humanity.This latest arm wresting over the ICC at the AU only draws attention to the fact that African governments—unlike their counterparts in Europe and Latin American—are not taking their obligations seriously when it comes to prosecuting grave crimes. For this reason alone, the role of the ICC is fully justified.

Europe experienced the Nuremberg trials. The Nazi collaborators continued to be judged up to the present day (see the latest trial of John Demjanuk who was transferred to Germany). In South America, there have been trials of the military junta in Argentina (trial led by current ICC Prosecutor Luis Moreno-Ocampo).

What example has Africa set for prosecuting grave crimes in its national courts? Before blaming the ICC of unfairly targeting Africans, African governments would be wise to ask themselves what their own track record is for prosecuting atrocity crimes. More specifically, look at the Hissène Habré case: Senegal did not want to try him or extradite him, but Belgium asked for his extradition.

Recently, I was shocked by Senegalese President Wade’s hypocrisy. Wade, who organized the Hissène Habré case and was one of the first to speak out to the media following the issuance of warrant for Al-Bashir, has reportedly said the ICC only judges Africans. This comes at a time when his country has shown itself incapable of administering justice on its own soil and around such a critical trial.

The most heinous crimes are committed by state authorities, who, occasionally take over internal justice systems. It is one of the reasons to advance international justice.

Finally, there is room to question the prosecutor’s strategy. How, we can ask ourselves, after all these years of investigations can he still be so far from fingering those most culpable for the atrocity crimes in eastern DRC.

Clearly, both sides can do better.

Please Note: This is an unofficial translation by the CICC Secretariat from the original French.

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Erna Paris is the author of The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice. Please visit her website at www.ernaparis.com - erna.paris@ernaparis.com

Back in 1990, the year before the Soviet Union imploded ushering in a new international order featuring a single superpower, the idea that one might soon (in historical terms) celebrate something called International Justice Day would have been laughable. Great powers set the rules. And they usually embraced impunity, at least for themselves.
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Lucille Mazangue is a lawyer and human rights activist with the Association des Femmes Juristes in the Central African Republic (CAR)

11 years ago to the day, the ICC was created during a conference held in Rome. Some 120 governments came together to build a Court capable of trying individuals for the most serious crimes known to human kind: war crimes, crimes against humanity and genocide.
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Christian Hemedi is the Coordinator of the DRC Coalition for the ICC and President of the Association for the Renaissance of Human Rights in the Congo (ARC-ONDH) arc_asbl@yahoo.fr
Beginning in 1998, the Democratic Republic of Congo found itself on the precipice of a war—sometimes referred to as the “African World War”—that would devastate the country and involve more than eight foreign armies. In July of the same year, the Rome Statute was born.
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There seems to be no end to the number of atrocities perpetrated in total impunity even though the signs of large scale attacks are clear across the world, particularly in Africa. As human rights are systematically violated, they continue to be subject to insufficient instruments of protection and insufficient definitions of crimes included in some national legislation.

It is essential to remember the 1999 controversial decision made by London judges  to extradite the late general Pinochet to Spain in order for him to be tried for crimes against humanity and genocide. At the time, it was a landmark decision for the difficult road toward the establishment of a transnational, operational and irreversible justice, evoking the concept of ” universal jurisdiction.” The effects of this have persisted for a long time. Political and judicial systems around the world have found universal jurisdiction  too aggressive a principle to develop beyond its use in London. In addition, a number of national laws, although on paper criminalize mass atrocities (genocide, crimes against humanity), give very few guarantees that they will be enforced.

At a time when the embryonic emergence of a universal justice, represented by the institution of a permanent International Criminal Court, restarts the debate on the functioning of instruments and mechanisms ensuring the application and control of international norms, the cause supported by human rights organizations representing victims and all complainants, must be regarded as sacred so that universal legality is valorized.

This cause that is often being neglected could serve as a basis for rebuilding a judicial heritage, a jurisprudence that the blissful initiative of Nuremberg had left to the whole of humanity to protect it from depraved powers and nihilists.

In order to safeguard this invaluable inheritance, it will be necessary first of all to review principles and methods of incrimination of all forms of human rights violations, in internal laws and to consider inevitable criminal provisions in Conventions and other international legal instruments so that we can finally see an end to impunity.

It is not about alleging the guilt of all those wandering monsters who flout the international community, but thinking about an innovative approach that aims to review the legal doxology and the promotion of a universal philosophical and moral ideal respecting and protecting efficiently all rights of the human being.

– Cheikh Sidya Diouf, Senegalese Counselor at Law

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