The Civil Society Of The Global South Supports The Establishment Of An International Criminal Court

The Civil Society Of The Global South Supports The Establishment Of An International Criminal Court

We, organizations and individuals from Africa, Latin America, the Middle East, the Caribbean, Asia and The Pacific, come together to affirm our committed support to the establishment of an independent, fair and effective International Criminal Court, through the prompt ratification of its Statute, approved in Rome on July 17, 1998.

At the end of the most violent century of recorded history, a glance to the terrible realities of war, tyranny, and discrimination forces us to recognize that Humankind continues to suffer under scourges of its own making, even when it has the intellectual and material means to prevent them. This sobering recognition inspires in us mixed feelings of anxiety and hope at the dawn of a new century: the men and women of the twenty-first century, our children, will carry the legacy of our failure or success in the struggle for peace and justice. The task of creating a just world for them is felt with more urgency in our societies in the Global South, marked by a tragic common history of colonialism, genocide and slavery and by the persistence of human rights violations.

The titanic challenge we face, however, has not discouraged us: on the contrary, it has allowed us to discover forms of transregional solidarity and organization that go beyond borders, languages or geography. As a result, global civil society has emerged as a new actor in the arena of international lawmaking.

International Law is an essential tool for the advance of peace and justice, but the worthy principles established in international treaties are often violated by the same governments that proclaim them. Therefore we need effective international institutions to protect our rights when the national legal systems are proven to be unable or unwilling to comply with their duties. Otherwise, the culture of impunity will be reinforced, thus weakening the hope in justice, and encouraging the repetition of the same offences.

One of the most promising developments in this regard is the passage in 1998 of the Rome Statute of the International Criminal Court, a permanent body empowered to try those individuals accused of the most heinous crimes that offend human conscience: aggression, genocide, crimes against humanity, and war crimes.

The Global South has enthusiastically hailed the Rome Statute and has called for its prompt ratification. This has been emphasized in recommendations from organizations such as the Inter-American Commission for Human Rights, the Ibero-American Federation of the Ombudsman, the First Ministers of the Organization of the African Union, the Justice Ministers of the Caribbean Community, the Southern Africa Development Community, and others.

Until now, eighty-two countries have already signed the Rome Statute, butonly two countries, one in Africa and one in the Americas, have ratified it. We acknowledge the governments that have decided to sign the statute and we salute the commitment and vision of the governments of Senegal and Trinidad and Tobago, who with their gesture have set an example of the defense of the values and interests of the peoples of the Global South.

The approval of the Statute for an International Criminal Court by the UN Conference of Plenipotentiaries held in Rome between June and July of 1998 has been a historic step forward in the protection of the rights of human beings and peoples.

Makes evident the growing world consensus about the need to stop the impunity enjoyed by those responsible of aggression, genocide, crimes against humanity and war crimes. It encompasses under its jurisdiction those crimes derived from internal conflicts and violations that are committed in times of peace (Arts. 5, 6, 7, 8).

Is built on the principle of complementarity, thus emphasizing the primary responsibility of the national judicial systems to prosecute the above mentioned crimes, but guaranteeing at the same time a remedy when those systems are unable or unwilling to fulfil their obligations (Art. 12). Equips the Court with an independent office of the prosecutor, empowered to initiate investigations motu proprio, in cases where allegations and evidence provided by civil society, victims, the media and other non state sources give sufficient grounds for the presumption of grave crimes (Art.15).

Affirms the responsibility of individuals before international justice, disregarding their having committed crimes in official capacity as heads of State or military leaders (Arts. 25, 27, 28). Protects the victims, defending their right to participate in all the phases of the process, taking care for their safety and establishing forms of compensation and rehabilitation (Art. 68, 79). Incorporates the gender perspective, clearly defining those crimes involving sexual exploitation and gender discrimination, such as rape, sexual slavery, forced pregnancy, enforced sterilization. It ensures a composition of the Court that will guarantee sensitivity towards gender-specific violations (Arts. 7, 8, 36). Provides the highest standards of due process, guaranteeing the rights of those accused and avoiding forms of cruel and unusual punishment such as the Death Penalty (Arts. 63, 66, 67, 69, 77).

These extraordinary achievements bear the imprint of the efforts of hundreds of civil society organizations around the world and showing the commitment of the like-minded group of countries. However, at the same time, the Rome Statute was built on the recognition of the necessity to arrive to compromises and build consensus. Some of these compromises were creative steps that permitted to win more support for the Statute while ensuring ways to protect justice. Some others, however, were more problematic and remind us of the continuous necessity of civil society participation to strengthen institutions of justice.

The fact that the Court has not been built upon the principle of universal jurisdiction over cases involving serious violations of Human Rights. Indeed, the Court will be able to intervene only in those cases where the alleged conduct involves the territory or the citizens of a State that is a party of the Statute. This is problematic because in many cases, grave violations may occur involving the citizens and territory of non-member States, in which case the Court may be impotent unless it receives are ferral by the UN Security Council. This must place additional pressure on the governments of the world to produce a high number of ratifications, in order to reduce the areas of non-jurisdiction by the Court (Art. 12). The ability of the UN Security Council to delay Court proceedings. The Security Council, in exercise of its duties under the UN Charter, will be empowered to refer cases to the Court, but it also will also be able to delay cases for renewable 12-month periods. No member of the Council will have the power to individually veto the Court's actions, because the delay will have to be requested by the absolute majority of the SC including all the permanent members. The fact, however, that the Council as such will have the power to delay cases raises concern over the possibility of those cases being stopped for long periods, and it is a powerful reminder of the necessary task to democratize the UN structure (Art. 16).

The temporary disposition that allows any state, at the time of ratification to declare that -for a period of seven years- it will not accept jurisdiction of the Court for cases related to war crimes allegedly committed in its territory or by its nationals. This disposition has no moral justification whatsoever and can only be described as a "license to kill". It poses to civil society around the world the urgent task to press governments not to ever make use of this clause (Art. 124).

The great victory for justice obtained during the Rome negotiations showed the commitment to an ethical foreign policy of a great number of States, particularly those acting together in the Like-Minded Group. Their ability to compromise and at the same time maintain principled standards, has given the world the unique opportunity to open the twenty-first century with an extraordinary new instrument for the defense of Peace and Justice.

Now, it is necessary to exploit this rare victory and give life to the Rome Statute. We are living an extraordinary window of opportunity that may be closed unexpectedly if we don't act promptly. Therefore, we urge the governments of the world to:

1. Proceed immediately to the signature of the Rome Statute for the International Criminal Court, therefore accepting not to engage in any policy that could be detrimental for its prompt entry into force.

2. Give priority to the ratification process, either facilitating parliamentary procedures or by executive decision where that is possible. If the ratification of the ICC Statute makes it necessary to engage in constitutional amendments necessarily previous to ratification, then we ask States to proceed soon to those necessary procedures.

3. Actively participate in the current work of the Preparatory Commission for the Establishment of the ICC, which has the delicate mission of establishing the Rules of Procedure and Evidence, the Elements of Crimes, discuss the definition of Aggression and other important issues. Discussion in this Commission must be undertaken with the maximum efficiency and with the goal to facilitate the actual work of the Court, preserving the integrity of the Rome Statute.

4. Upon ratification, Parliaments need to undertake the important mission of passing enabling legislation to ensure that crimes under the jurisdiction of the ICC are also crimes under domestic laws. This is essential to ensure that the Court's action will be complementary and that States will maintain their primary responsibility as protectors of humanitarian laws and Human Rights.

5. Enact enabling legislation on aspects of cooperation with the Court in areas such as police action, judiciary proceedings, financial responsibilities and execution of the penalties.

6. Reject the activation of the seven-year clause that would shelter their nationals from prosecution in the case of war crimes.

7. Avoid bilateral treaties with non-party States in issues -such as extradition- that may affect the obligation of the State party to surrender indicted individuals or otherwise fully cooperate with the Court.

8. Create a Trust Fund to support the fulfillment of financial obligations with the Court by developing and least developed countries.

9. Ratify other international instruments for the protection of Human Rights and Humanitarian Law and accept the jurisdiction of regional bodies of regional Human Rights courts in order to strengthen the new juridical order in which the ICC will operate.

10. Support the prompt establishment of the ICC at regional gatherings and bilateral contacts, creating commitment in regional organizations such as the the Asia-Pacific Economic Cooperation (APEC), the Arab League, the Association of Southeast Asian Nations (ASEAN), the Caribbean Community and Common Market (CARICOM), the European Union, the Organization of American States (OAS), the Organization of the African Unity (OAU), the South Asia Association for Regional Cooperation (SAARC), and the Southern Africa Development Community (SADC) so that the support for effective international justice becomes part of their normal lines of action.

The sooner these tasks are undertaken, the sooner the ICC will become a reality. But the road to justice will not end there: new commitments and struggles will begin. States should assume that these efforts will be only the beginning of their commitments to the ICC, and should be prepared for a long-term engagement in tasks such as the strengthening of a democratic Assembly of States parties, the nomination of a plural, fair and efficient pool of judges and their participation in the revision conference of the Rome Statute, seven years after its entry into force.

As a part of Global Civil Society, the organizations of the Global South have the firmest intention to be decisive actors in the process of establishment of the ICC and after its entry into force. We vow to be active in the following lines of action and processes:

We participate in the International NGO Coalition for an International Criminal Court, a global alliance of over 800 organizations that has facilitated an unprecedented process of mutual understanding and learning between civil society and governments engaged in the approval of the Rome Statute, and that continues to be an effective voice for the rights of victims of heinous crimes against international humanitarian and Human Rights law. We currently participate in the work of the Preparatory Commission for the Establishment of the International Criminal Court, advocating for the integrity of the Rome Statute and for the approval of definitions and procedures that will facilitate the most effective and fair action of the Court.

We are determined to obtain in the shortest time possible a large number of ratifications in the Global South in order to make possible the prompt establishment of the Assembly of States Party, where our civil society organizations will continue to be engaged observers We are engaged in a pedagogic effort to help our societies to understand the necessity of international justice as a deterrent to war, a remedy against impunity and a tool for the advance of Human Rights and the rule of law.

We commit our support as independent experts for our governments and the future Court in every area of legislative and judiciary action necessary. We will undertake all the necessary organizational efforts so that our organizations will follow up -as a permanent line of action- the process of establishment of the ICC

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