Amnesty International Publications

First published in October 2008 by

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 Copyright Amnesty International Publications 2008

Index: IOR 40/022/2008

Original Language: English

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INTRODUCTION

The seventh session of the Assembly of States Parties (Assembly) will take place in The Hague from 14 to 22 November 2008, with a first resumed session from 19 to 23 January 2009 at the UN Headquarters in New York to elect new Judges and members of the Committee on Budget and Finance and a second resumed session, which is tentatively scheduled to take place from 6 to 10 April 2009 when the Special Working Group on Aggression will meet. Ten years after the adoption of the Rome Statute of the International Criminal Court (Rome Statute), over half of all states have ratified it and the seventh session of the Assembly takes place in the context of a functioning International Criminal Court (Court), which is expected to start its first trials shortly.

At this stage in the Court’s history the support of the Assembly is vital. In particular, unfounded attacks against the credibility of the Court in recent months require a strong affirmation of support by all states parties to protect the integrity of the Court, to cooperate fully with its work - especially on arrest and surrender of suspects - and to ensure that the Assembly performs its oversight functions thoroughly and effectively.

Amnesty International welcomes the Assembly’s decisions at its sixth session to request the Bureau of the Assembly to undertake work on a number of key issues which it will report on to the Assembly at this session. Mechanisms established by the Bureau have examined a number of issues together with other states parties and observers in The Hague and New York and in consultation with non-governmental organizations. The issues they have examined include the implementation of the Assembly’s Plan of Action for Universality and Full Implementation of the Rome Statute, the role of the Assembly in ensuring cooperation with the Court, the creation of an independent oversight mechanism, legal aid, the Court’s victims strategy, family visits for indigent detainees and the budget. Amnesty International, welcomes the increased transparency of many of these mechanisms this year and encourages the Bureau to ensure that future meetings continue to be open to non-governmental organizations and allow for their input at appropriate stages. Our organization hopes that sufficient time will be allocated during the Assembly to review the work of the Bureau allowing for open discussion, including all states parties, observers and non-governmental organizations.

In this paper, Amnesty International presents its concerns and recommendations on a number of issues on the agenda of the Assembly and other issues, which the organization believes should be considered by the Assembly this year. In particular, Amnesty International:

• urges states parties in their statements to the general debate sessions of the Assembly to affirm their commitment to the Court and the system of international justice and to commit to cooperating fully in the arrest and surrender of any person, regardless of their status, who is the subject of a Court arrest warrant;

• urges the Assembly to take steps to establish an effective independent oversight mechanism to protect the integrity and reputation of the Court and to facilitate the Assembly’s oversight functions;

• welcomes the efforts of the Bureau’s Working Group on Universality and Full Implementation of the Rome Statute and the Secretariat of the Assembly which have both sought to promote the implementation of the Plan of Action adopted by the Assembly at its fifth session. Amnesty International encourages all states parties to take concrete steps in advance of the seventh session to contribute to the implementation of the Plan of Action;

• welcomes the work of the Committee on Budget and Finance, including its report on its eleventh session to the Assembly on the proposed budget for 2008 and makes observations and recommendations on key issues raised by the Committee;

• urges the Assembly to fund family visits for indigent detained persons in the 2009 budget;

• welcomes steps to implement the Bureau’s report submitted to the Assembly at its sixth session on cooperation. The organization recommends further steps that should be taken to advance this important work;

• welcomes continuing discussions this year to advance the organization of the Review Conference and makes recommendations on key decisions that should be made by the Assembly at its seventh session;

• reminds the Assembly of important principles set out in Amnesty International’s submission to the sixth session that should be applied in by the Special Working Group working in defining the crime of aggression and establishing procedures that would enable the Court to exercise jurisdiction over the crime;

• calls on states parties to make voluntary contributions to the Trust Fund for Victims at this session and recommends measures that the Assembly should take to ensure greater transparency in the work of the Trust Fund for Victims to ensure its success;

• expresses concern about the failure of states parties to nominate more candidates for the election of judges and the Committee on Budget and Finance and calls on states to take immediate steps to address the issue;

• calls on the Assembly to examine declarations made by a number of states upon ratification which amount to reservations and to call on states which made such declarations to promptly withdraw them.

Amnesty International will have a delegation present throughout the seventh session of the Assembly. Members of the delegation are available to discuss any of these issues with government delegations. Some of the issues considered by the Assembly and not discussed in this paper may be the subject of separate papers issued by Amnesty International. Amnesty International is also actively involved in a number of Teams organized by the Coalition for the International Criminal Court on some issues. The Coalition’s Teams may issue papers reflecting the organization’s position on specific issues before or during the Assembly.

I. AFFIRMING SUPPORT FOR THE COURT AND INTERNATIONAL JUSTICE AT THE GENERAL DEBATE

Amnesty International is deeply concerned by the political backlash from many states, including states parties to the Rome Statute, following the announcement by the Prosecutor in 14 July that he had applied to the Pre-Trial Chamber of the Court to issue an arrest warrant for Sudanese President Omar El Bashir on charges of genocide, crimes against humanity and war crimes.

Amnesty International is particularly dismayed by the response from member states of the African Union, the Organization of Islamic Conference and the League of Arab States, which included strong – and baseless - criticism of the Court for seeking the arrest of a head of state and sought to undermine the Court and the whole system of international justice by calling on the United Nations Security Council to defer “the process initiated by the ICC”, by using Article 16 of the Rome Statute to block any prosecution.

Amnesty International believes that the seventh session of the Assembly is an important opportunity for states to counter the political criticism of the Court’s work and affirm their support for the Court and international justice. We therefore urge states parties to include in their statements to the general debate section of the Assembly the following points:

• Affirmation of their support for the Court and international justice to end impunity and establish an effective deterrent to the worst human rights violations.

• A commitment to cooperate fully with the Court.

• A commitment to work to ensure that all persons subject to arrest warrants, regardless of their status, are arrested and surrendered to the Court without delay.

II. ESTABLISHING AN EFFECTIVE INDEPENDENT OVERSIGHT MECHANISM

Amnesty International welcomes the work conducted by the Bureau’s Working Group this year on the establishment of an effective independent oversight mechanism. The organization notes that despite discussions, mostly focused in the need for independence and costs, much work needs to be done to consider all aspects of the work of the independent oversight mechanism and to resolve many technical issues. The organization therefore recommends that effective steps are taken by the Assembly to further define the independent oversight mechanism, in consultation with civil society, so that it can be established without further delay.

To assist the Assembly in establishing the mechanism, our organization has developed the following principles, which it urges states parties to consider in taking the issue forward.

The Independent Oversight Mechanism must be independent.Article 112 (4) sets out clearly, that the drafters of the Rome Statute envisaged the establishment of an “independent” oversight mechanism. Independence will be vital to ensure that the mechanism can perform effectively the functions it is expected to undertake – inspection, evaluation and investigation of the Court. A non-independent mechanism would be of little value to the Assembly in performing its oversight functions.

Amnesty International notes that the Court has circulated a non-paper which recommends that the oversight mechanisms could be an expanded version of the existing Office of Internal Audit, which is independent of the Court, but administered by the Registry. Although Amnesty International sees benefit in including the Office of Internal Audit within the independent oversight mechanism, the organization opposes any effort simply to expand the existing Office of Internal Audit. Instead, a detailed analysis should be conducted to establish an independent oversight mechanism, taking into account that while certain aspects of its administration could be conducted by the Registry, there may certain administrative tasks that for confidentiality or other reasons should be conducted by the mechanism itself.

The independent oversight mechanism should have a clear mandate to conduct internal audit, appropriate management oversight and investigations into allegations of misconduct and criminal acts by staff and agents of the Court.A leading commentary on the Rome Statute notes that the drafters of the Rome Statute intended that the independent oversight mechanism in article 112 (4) of the Rome Statute would be based on the United Nations Office of Internal Oversight Services.¹ The activities of this office go beyond the investigations of misconduct, which is currently the focus of the discussions on the Court’s independent oversight mechanism.² The text of article 112 (4) also indicates a broader function for the mechanism when it states that its functions include “inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy.”

Amnesty International believes that at a minimum, the Court’s mechanism should:

• incorporate the existing work of the Office of Internal Audit, noting the Committee on Budget and Finance’s comments on the need for clarity on reporting lines to the Assembly;³

• pursuant to specific requests by the Assembly, conduct appropriate research and evaluation to support the Assembly’s management oversight of the Court. Such tasks were envisaged to be conducted by the Office of Internal Audit but have been obstructed by the delays in recruiting staff to the Office.⁴ Amnesty International believes that the independent oversight mechanism could play a key role in guiding the Assembly on key issues where reports from the Court are not sufficient. For example, despite significant investment by the Assembly in translations, the requirements of Article 50 of the Rome Statute that the working languages of the Court shall be English and French are still not being met and the Court has failed to give a clear explanation for this failure. Indeed, Amnesty International has voiced concern that in its annual budgetary process, the Court has requested insufficient funds to cover the cost of satisfying these requirements.⁵ The independent oversight mechanism could play a key role in conducting a detailed evaluation of the Court’s translations work and report to the Assembly so that it can work with the Court to address the problems. Existing subsidiary bodies of the Assembly, including the Committee on Budget and Finance, do not have the resources or the capacity for such detailed evaluation.

• conduct investigations of misconduct, including racial, sexual or otherwise discriminatory harassment, , and criminal activity, including racial, sexual or otherwise discriminatory assaults, by Court staff and agents of the Court. It is vital for the reputation of the Court, that such misconduct and criminal activity is investigated thoroughly by an independent body, which has been properly trained to investigate all types of allegations of misconduct, and, where appropriate, to ensure that disciplinary or criminal proceedings are conducted. In addition, such a body should have the power to recommend changes in internal rules and practices to prevent misconduct and criminal activity. The work of the Bureau this year provides a useful basis to define these functions of the mechanism.

The independent oversight mechanism must be multi-disciplinary. The functions recommended above involve distinct skills and experience to perform them effectively. In its efforts to ensure the efficiency of the mechanism, it is vital that the Assembly recognizes that it will need to employ persons with specific skills and that it would be unrealistic to expect a very small number of staff to perform all of these functions. As the Committee on Budget and Finance remarked on the Court’s proposal to expand the Office of Internal Audit to fulfil the role of the independent oversight mechanism “an investigatory function would likely require different skills than individuals employed primarily as auditors.”

The independent oversight mechanism must be overseen by a standing subsidiary body of the Assembly. The Assembly should establish a subsidiary body of states parties and other independent experts to oversee the work of the mechanism. The body should be standing so that it can oversee the day-to-day work of the mechanism and consider, without delay, recommendations of the mechanism in relation to the work of the Court and specific cases of misconduct, including racial or sexual harassment, or criminal activity, including racial or sexual assault. The subsidiary body will also need to take an active role in ensuring that the Court implement its recommendations and that national authorities cooperate fully with investigations and criminal prosecutions.

There must be no impunity for serious criminal conduct by staff or agents of the Court. When misconduct amounting to serious criminal activity by staff or agents of the Court (including acts of violence, crimes of sexual violence and sexual exploitation), the mechanism and its oversight body must take effective measures to ensure that, where there is sufficient evidence, those crimes are prosecuted before independent, competent and impartial courts which respect the right to a fair trial and preclude the death penalty and other cruel, inhuman and degrading treatment or punishment. The mechanism and its oversight body will, therefore, need to take measures to ensure that appropriate national authorities cooperate by investigating and prosecuting the crimes. The President, the Registrar and the Prosecutor should make a commitment to waive the immunities of staff pursuant to Article 48 (5) of the Rome Statute when there is sufficient evidence of crimes and the above safeguards can be effectively guaranteed. In addition to such remedial steps, the Court should adopt a Court-wide gender policy to prevent such crimes occurring, including effective training of all persons, regardless of rank, in how to implement such a gender policy and an effective means to ensure that it is implemented.

The independent oversight mechanism must have jurisdiction to investigate all acts of serious misconduct and crimes, regardless of the status of the Court official or agent. Allegations of such conduct against senior officials of the Court may cause serious damage to the reputation of the Court, whether they are accurate or not, unless they are investigated by an independent mechanism. To the extent that the Rome Statute already sets out procedures for responding to allegations of misconduct against judges, the Prosecutor and the Registrar, which may result in dismissal, it is vital that that a parallel investigation be conducted by an independent authority to determine whether serious misconduct or crimes have been committed. Otherwise, the Court will be open to accusations of failing to consider genuinely such allegations and take effective action.

The independent oversight mechanism must be located at the seat of the Court. Amnesty International notes the recommendation of the Committee on Budget and Finance that certain investigative functions could be outsourced to the United Nations Office for Internal Oversight Services.⁶ Our organization would oppose such an initiative on the grounds that the United Nations Office is located in New York, which would establish significant obstacles to persons filing complaints, to the prompt investigation of misconduct and criminal activity and to practical cooperation from the Court.

III. IMPLEMENTING THE ASSEMBLY’S PLAN OF ACTION FOR UNIVERSALITY AND FULL IMPLEMENTATION OF THE ROME STATUTE

Amnesty International welcomes the work conducted this year by the Bureau’s Working Group on the Plan of Action for Universality and Full Implementation of the Rome Statute. The Plan of Action adopted at the Assembly’s fifth session offers a unique opportunity for the states parties to contribute to the success of the Court through their effort to ratify and implement the Rome Statute and the Agreement on Privileges and Immunities and to provide assistance and guidance to other states through information sharing and technical assistance. All states parties should take measures to make the Plan of Action a reality.

Although Amnesty International encourages all states parties to take a range of measures set out in paragraph 6 of the Plan of Action,⁷ the organization notes that there are two specific measures that all states parties should take, which require minimal resources, to contribute to the Plan of Action:

• Firstly, as set out in paragraph 6 (g) of the Plan, all states parties should appoint a national contact points to provide information and receive requests from the Court and other states parties.

• Secondly, in accordance with paragraph 6 (h) all states parties should respond promptly to an annual request from the Secretariat of the Assembly for information identified in the Plan of Action.

Regrettably, the number of states parties that have taken these steps is low. In response to last years request for information from the Secretariat, only 23 states parties and one observer replied. Amnesty International is concerned by initial reports that the response to this year’s request (sent in July 2008) is so far significantly lower. Each delegation to the Assembly from a state party that has not yet appointed a contact point or has not supplied the Secretariat with the requested information, should bring this information to the attention of the Secretariat at the latest by the opening of the seventh session.

Amnesty International calls on all states parties to take these simple steps in advance of the seventh session of the Assembly. The organization also encourages each region to establish a focal point to support the work of the Bureau’s report to follow up with states in their region on the Plan of Action.

Amnesty International hopes that in the next year, serious consideration will be given to establishing additional staff resources within the Secretariat to take additional steps towards implementing the Plan of Action, as the activities of the Secretariat are clearly limited by having to perform its functions within existing resources. Additional tasks could include:

• preparing a summary report for the Assembly each year on the activities to implement the Plan of Action, as well as posting the information received from states parties on the website as soon as it is received in an easily understandable chart format to facilitate comparison and to encourage other states parties to do the same;

• to provide advice and information to states seeking to ratify and implement the Rome Statute and the Agreement on Privileges and Immunities;

• acting as contact point for requests for technical assistance and to direct the requests to states and other actors willing to assist;

• creating and maintaining a database of relevant information on the Court’s website to assist states.

IV. 2009 BUDGET

Amnesty International is an active member of the Coalition for the International Criminal Court’s Budget and Finance Team. In advance of the eleventh meeting of the Committee on Budget and Finance, the Team examined the Proposed Programme Budget for 2009 and issued comments to the Court, the Committee and states parties.⁸ Amnesty International has reviewed the report of the Committee on its eleventh session which examines and makes recommendations on the Proposed Programme Budget for 2009. The organization welcomes many aspects of the report, in particular the Committee support for an increased investment in victims’ protection and support. The organization, however, has comments on the following specific issues raised in the report:

Zero growth is unrealistic for an organization which has yet to reach its full workload.Amnesty International notes that there are some instances in the report where the Committee challenges the Court to endeavour not to increase resources in future years.⁹ This new approach coincides with a submission by the government of Japan to the Committee on Budget calling for zero growth in the Court’s budget.¹⁰

Amnesty International welcomes all efforts by the Committee to ensure that the Court obtains the maximum amount of efficiency in its work. However, given that the Court’s caseload will increase significantly in the next years as more cases commence, it is unrealistic to call on the Office of the Prosecutor or other organs of the Court to conduct this substantive extra work on existing resources. In any event, such a decision is a policy decision for the Assembly. Amnesty International urges states parties participating in the Assembly’s consideration of the Committee’s report to acknowledge that growth will be necessary for this young institution. Indeed, the level of criminality involving crimes within the Court’s jurisdiction remains alarmingly high and states are not yet shouldering their burden under the principle of complementarity to investigate and prosecute the crimes.

Undue pressure must not be placed on judges to cut costs. Amnesty International notes that in its Report, the Committee made recommendations for the Registrar to:

“provide a statement of financial implications to chambers on matters under consideration, preferably prior to decisions being taken. The Committee also recommended that the Presidency advise chambers of the need to take appropriate account of costs in their deliberations.”

Although Amnesty International is not opposed to the Chambers considering the financial implications of their decisions, however, it should be left to the judges to request such information, as they are best placed to decide whether and when they need to consider cost implications in conducting their work. The organization believes that the recommendation could unfortunately be read as putting pressure on the judges to factor costs into their decision-making. Article 40 of the Rome Statute states clearly that “[t]he judges shall be independent in the performance of their functions.” Their primary responsibility is to manage their court room and cases ensuring the rights of the accused to a fair trial and the rights of victims set out in the Rome Statute. Undue pressure should not be exerted on judges by the Committee, the Assembly or any other body to compromise their work in order to save costs.

Sufficient resources should be made available for legal aid for defence and victims. In its Report, the Committee recommends a cut of €700,000 to legal aid. Although part of this cut takes into account a miscalculation of €219,000 identified in the Proposed Budget, the Committee justifies the rest of the cut on a “maximalist approach” taken by the Court in preparing the 2009 budget for legal aid. Amnesty International is disappointed that the Committee does not explain adequately how it calculated the recommended reduction. Recognizing the importance of legal aid to the effective functioning of the Court, we urge the Assembly if it adopts this cut to instruct the Court to use the Contingency Fund, if the amount of legal aid allocated for 2009 is insufficient.

Flexibility in reduced budget for outreach.In its Report, the Committee recommended that the Assembly not approve additional posts for outreach on the basis that a number of new posts approved for 2008 had still not been recruited. Amnesty International strongly supports the new posts requested in the 2009 budget which would perform the important task of creating video materials to show summaries of trials to communities in situation countries. Amnesty International therefore urges the Assembly to provide the Court with the flexibility to establish these important posts from existing resources of the Public Information and Documentation Section, provided that such resources are not taken from its field based posts or resources.

The Contingency Fund should be continued.Amnesty International welcomes the Committee’s consideration of the need to continue the Contingency Fund. Our organization believes that, despite the fact it has only recently been used, the Contingency Fund is an essential tool to ensure that the Court has the flexibility to respond to unforeseen developments or developments that could not be budgeted for at the time the annual budget was adopted. We urge the Assembly to ensure that the Fund is continued and importantly that it is automatically topped up annually when the Fund is used by the Court. Automatic replenishment will ensure that the Fund maintains a reasonable level of funds, in case they are required by the Court, and would dramatically minimize the amount of time and resources that the Assembly would have to spend if it were to top up the fund “from time to time as necessary.”

V. FUNDING FAMILY VISITS FOR INDIGENT DETAINEES

Amnesty International has followed the discussion this year on whether the Court should fund family visits for indigent detainees. In particular, the organization participated in a consultation meeting of experts and organizations in July.

The right to family visits exists under international human rights law. As the detention facilities of the Court are located in The Hague, in most cases significant distances from the countries where detainees families are located, our organization believes that the Court should provide funding for a reasonable number of family visits for the immediate family members of indigent detained persons who cannot afford to travel to The Hague.

Amnesty International was disappointed that the Committee on Budget and Finance in considering this issue, indirectly encouraged the Assembly not to resolve the issue on the basis that the costs could be covered by voluntary contributions.¹¹ This is a policy issue which has been discussed at length this year and should be resolved by the Assembly at this session. It is not only unrealistic to expect that there will be donors willing to provide voluntary contributions for this specific issue, but it is not appropriate for the Court to be dependent upon voluntary contributions to carry out its obligations to guarantee the rights of detainees, most of whom will be pre-trial detainees entitled to the presumption of innocence.

Amnesty International urges the Bureau’s Working Group on this issue to continue to work with the Court in the lead up to the Assembly to resolve this issue ensuring the funding of family visits for indigent detainees from the Court’s budget.

VI. IMPLEMENTING THE ASSEMBLY’S REPORT ON COOPERATION

As the Court’s investigative and prosecutorial work increases, it is evident that cooperation from states and intergovernmental organizations is vital to ensure the success of the first cases. Regrettably, there are already instances where states – including states parties - have been unable or unwilling to provide cooperation.

Amnesty International strongly welcomed a Report adopted by the Assembly last year on cooperation with the Court¹² and further welcomes work conducted this year by the Bureau’s focal point on cooperation appointed “to continue the work on cooperation in close coordination and dialogue with the Court.”¹³

The Assembly should take additional steps to ensure that the recommendations contained in its report are implemented.The Working Group’s Report contains 66 recommendations of steps that should be taken by the Court and states parties. The impact of the Report on cooperation with the Court will depend on the extent that states parties and the Court seek to implement them. It is, therefore, important that the Assembly develops effective mechanisms to monitor the implementation of the report and promote action. Amnesty International recommends that, in addition to the existing work of the focal point:

• The Assembly request the Court to report to it annually on the measures that it has taken to implement recommendations assigned to it in the report.

• The Assembly encourages all states to use the existing reporting mechanism established in the Plan of Action for the universality and full implementation of the Rome Statute to report on their national status of ratification and implementation of the Rome Statute and the APIC and their efforts to assist other states on these issues. The Secretariat should be given sufficient resources to ensure that these reports are promptly placed on the Court’s website in a easy-to-understand fashion.

• To reconsider, the recommendation last year by Amnesty International and the Coalition for the International Criminal Court for the Assembly to establish a Working Group that will meet at each session of the Assembly and an appropriate inter-sessional mechanism to develop concrete steps that the Assembly should take to ensure that recommendations contained in the report are implemented. The mandate of such mechanisms should focus on implementation, rather than reviewing the recommendations, which as the report recommends could be reviewed in two or three years. These mechanisms would also be best placed to identify and respond to serious instances of non-cooperation, when they occur.

VII. PREPARATIONS FOR THE REVIEW CONFERENCE

At its Sixth session, the Assembly decided:

[t]hat a Review Conference shall be held in the first semester of 2010, on the basis of invitations to be issued by the Secretary-General of the United Nations in July 2009, with a duration of between five and ten working days and that proposals for amendments to be considered at the Review Conference should be discussed at the eighth session of the Assembly of States Parties in 2009, with a view to promoting consensus and a well prepared Review Conference;¹⁴

With over a year until the Review Conference take places, it is vital that the Assembly makes significant progress in its preparations at its seventh session, in particular, Amnesty International urges States parties to make decisions on the following key issues at this session.

Venue of the Review Conference. As a general rule Amnesty International does not take position on the venue of inter-governmental organizations meetings. However, since the Court is an independent and impartial body, it would not be advisable to hold the Review Conference in a state where the Prosecutor is conducting an investigation or prosecution or in a state which has made an Article 12 (3) declaration. In addition, it might be useful for the Assembly to take into account other desirable factors when determining the venue of the Review Conference, including, whether the state of the proposed location has:

• Ratified APIC without any prohibited reservation or declaration amounting to a prohibited reservation;

• Enacted legislation implementing both complementarity and cooperation obligations under the Rome Statute;

• Not established any amnesty for crimes within the Court's jurisdiction;

• Cooperated fully with the arrest and surrender of all persons subject to an arrest warrant;

• Cooperated fully with other requests for assistance by the Court;

• Not entered into an illegal impunity agreement in contravention to article 98 of the Rome Statute;

• Fully paid its assessed contributions to the Court.

The agenda of the Review Conference.Article 123 (1) of the Rome Statute provides:

Seven years after the entry into force of this Statute the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5. The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions.

There are four items which the Review Conference must consider or which it has been recommended to consider. First, transitional Article 124 expressly requires that "[t]he provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1." Second, the Review Conference will have before it proposals concerning the crime of aggression, including its definition and the circumstances under which the Court will exercise its jurisdiction over this crime, and a report on the subject prepared pursuant to paragraph 7 of Resolution F of the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Final Act). Third and fourth, Resolution E of the Final Act recommends that a Review Conference "consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court".

In addition, since it will be a Review Conference, it will present an excellent opportunity for states parties to conduct a broad review of the work of the Court since the entry into force of the Rome Statute on 1 July 2002. That review should also examine the extent to which states parties and states that have made declarations pursuant to Article 12 (3) recognizing the Court’s jurisdiction have implemented their complementarity and cooperation obligations under the Rome Statute and APIC.

States may also use the opportunity to consider whether other aspects of the Rome Statute might warrant amendment at a future Review Conference. In that review, proponents of amendments would need to bear in mind that amendments require super-majorities for adoption and entry into force. Amnesty International believes that the current political environment would suggest that proponents of changes in the Rome Statute should agree to push for adoption of amendments at the first Review Conference only if there is overwhelming support for them. Instead of seeking major changes at the first Review Conference, states parties should use the opportunity for a comprehensive review as a way to initiate discussion to lay the groundwork for successful action at a future review conference or Assembly session. Absent a significant change in current circumstances, it would appear that the only amendments that might be adopted at the first Review Conference, other than the four items mentioned above, would be amendments that involved only minor, technical corrections where there was a consensus that they were necessary and would not risk unraveling the compromise reached at Rome.

The appropriate scope of the Review Conference. The Court will still be in its infancy when the Review Conference is convened in 2010. It will have been fully operational for only a few years and, under the current prosecution strategy, it is likely that it will have completed only a few trials and possibly appeals. Thus, it will have had only a limited amount of time in its jurisprudence and practice to address the numerous areas of ambiguity in the Rome Statute regarding definitions of crimes and offences against the administration of justice, principles of criminal responsibility and defences, the application of the principle of complementarity, relationships between organs of the Court and the scope of state cooperation obligations. The Court should be given a chance to address these issues before any attempt is made to address any problems by amendment.

The Rome Statute is not perfect. It represents a delicate and not always happy compromise, balancing many unrelated articles and provisions. Although it may well have been almost the best that could have been achieved in the circumstances, Amnesty International made clear on the eve of the adoption of the Rome Statute that it was dismayed by many important provisions. Indeed, it continues to believe that many of the articles could be significantly improved. However, the organization recognized from the moment the Rome Statute was adopted that any attempt to make major changes at the early stages of the new permanent Court’s existence in one area could lead immediately to calls for changes in other areas that are completely unconnected, but which are in their current form as part of the general political bargain reached at Rome. For that reason, when the Court was under intense attack by one state, Amnesty International joined the international consensus shared by other members of civil society and the Like-Minded Countries that it was essential to protect the integrity of the Rome Statute. Although the threat to the Court’s existence has receded somewhat, it has not yet gone away. The state which has campaigned against the Court can participate as an observer at the Review Conference and, if it decides to participate, it might well press for amendments in return for ending its campaign and agreeing to cooperate with the Court. For these reasons, Amnesty International continues to believe that until the Court is firmly on its feet and the campaign against it has been decisively been defeated that it would be very risky to seek substantive changes other than the four envisaged under the Rome Statute or the Final Act mentioned above.

VIII. CRIME OF AGGRESSION

Amnesty International notes that discussions have advanced this year on the definition of the crime of aggression and the procedure under which the Court would exercise jurisdiction over the crime. The Chairman of the Special Working Group issued a revised discussion paper in June¹⁵ setting out options on the procedure under which the Court would exercise jurisdiction over the crime to focus discussions towards the Special Working Group’s stated intention to conclude its work 12 months prior to the Review Conference¹⁶ - the earliest point that a definition could be adopted to be incorporated into the Rome Statute.

Amnesty International has not taken a position on the definition of the crime of aggression because its mandate - to campaign for every person to enjoy all of the human rights (civil and political and economic, social and cultural rights) enshrined in the Universal Declaration of Human Rights and other international human rights standards¹⁷- does not extend to the lawfulness of the use of force.

Amnesty International, however, reminds states parties of the following principles the organization has developed on the definition and the procedure which it believes are essential to fully respect the integrity of the Rome Statute and the independence of the Court.

Any definition and procedure must not scale back on the important achievements in the Rome Statute.Ensuring the integrity of the Rome Statute must remain the number one priority for states parties. The political process of determining whether to add this crime should focus on tailoring the definition and the procedure to the established system set out in the Rome Statute. The process should not allow for the reopening of other aspects of the Rome Statute for revision. In particular:

• The same procedures for referring crimes to the Court should be available for the crime of aggression.Article 13 of the Rome Statute was drafted to ensure that the jurisdiction of the Court could be triggered in a number of ways, including providing for the Prosecutor to act proprio motu. Article 13 was one of the key successes of the Rome Statute which guarantees to independence of the Court. Substantial safeguards and procedures have been incorporated into the Rome Statute to ensure that the Court operates justly, fairly and effectively without risk of politically motivated prosecutions. There is no reason why this established system should not be applied to all crimes under the jurisdiction of the Court.

• The provisions governing the right to a fair trial must be applied to the crime of aggression.Articles 55, 66 and 67 of the Rome Statute ensure that the Court shall fully respect the rights of the accused in investigating and prosecuting crimes. These must be applied equally to the crime of aggression. Any definition and procedure adopted must be fully consistent with these rights.

• The principles of criminal responsibility and defences applicable to this crime must be consistent with the strictest requirements of international law. The principles of criminal responsibility in the Rome Statute and defences are generally consistent with other international law.¹⁸

The United Nations Security Council or other bodies must not be allowed to infringe the independence and impartiality of the Court.Defining the procedure by which the Court exercises jurisdiction over the crime of aggression, in the context of the existing role for the Security Council set out in the United Nations Charter remains a significant challenge for the Special Working Group. Amnesty International believes that procedures established must guarantee the independence and impartiality of judicial work of the Court from the political work of the Security Council. Indeed, this was a key principle applied in drafting the Rome Statute which must not be compromised in this process. In particular:

• The Security Council or other body must not pre-empt the judicial determinations of the Court on any aspect of the crime. Article 66 of the Rome Statute provides that the Court must fully respect the presumption of innocence of any person charged with crimes under the Rome Statute. It is essential that any process to allow the Court to exercise jurisdiction over the crime of aggression does not undermine this fundamental fair trial principle by allowing inappropriate determinations by the United Nations Security Council, the United Nations General Assembly, the International Court of Justice or any other body on matters that must be established by the Court.

• The Security Council must not be given any additional powers to preclude the Court from acting.The drafters of the Rome Statute insisted that, with the exception of Article 16, which allows the Security Council to defer cases for 12 months pursuant to Chapter VII of the United Nations Charter, the Court must be independent of the Security Council’s interference in deciding which cases it would investigate and prosecute. This article was intended to be used only in exceptional cases and only as a temporary measure.¹⁹ It is a general principle of law, both at the national and international level, that the independence of the judiciary be fully respected. ²⁰ It is, therefore, essential for the future independence of the Court that no further powers should be granted to the Security Council in relation to any crime under the jurisdiction of the Court.

The issue must not overshadow other important work to be undertaken by the Assembly and the Review Conference. With so much political attention being focused on the crime of aggression, it is vital that the issue does not dominate the work of the Assembly and the Review Conference to the extent that it undermines or interferes with other important tasks that the Assembly and the Review Conference will need to work on to ensure the continuing success of the Court.

IX. TRUST FUND FOR VICTIMS

Amnesty International is a strong supporter of the Trust Fund for Victims. In addition to providing input to the establishment of the Trust Fund, each year the organization has called upon states parties to make voluntary contributions to the Trust Fund. This year, the organization renews this call and welcomes the recent launch by the Board of Directors of a global appeal for €10 million to assist 1.7 million victims of sexual violence.²¹

In addition, Amnesty International welcomes Report to the Assembly on the activities and projects of the Board of Directors of the Trust Fund for Victims for the period 1 July 2007 to 30 June 2008.²² However, recognizing that the success of the Trust Fund depends on ability of states and other donors to fully understand what the Trust Fund is and how it works, our organization is concerned that information provided in the Report on the Trust Fund’s activities and its strategic planning are currently too vague. Although Amnesty International recognizes that some details of projects may need to be confidential to protect the beneficiaries, we consider that the very broad descriptions contained in the Report are inadequate. To address this, Amnesty International urges Assembly to request that the Board of Directors issue a public version of the Trust Fund for Victims Strategic Plan for 2008-2011 (referred to in the Report) and to conduct a process of consultation with states parties and civil society to obtain their views on the approach taken by the document. Amnesty International believes the public version of the document should set out:

• a detailed fundraising strategy;

• an analysis of the needs of victims in each situation and priorities that the Trust Fund will adopt for activities and projects;

• a description of the systems that the Trust Fund has put in place to evaluate projects and ensure that awards have been allocated in accordance with its instructions;

• strategies to ensure that reparations orders of the Court will be fulfilled promptly.

X. ELECTIONS

Since the first elections of judges in 2003, Amnesty International has repeatedly called for all states parties to undertake transparent national nomination processes in consultation with civil society in order to identify the most highly qualified candidates from their countries to be put forward to the election of judges, members of the Committee on Budget and Finance and other elections.²³ The organization believes to ensure the election of the highest qualified candidates to these essential posts, that the Assembly must have the broadest choice of the strongest candidates from each state party.

Amnesty International is, therefore, seriously concerned that at the time of writing, only 14 candidates from the 108 states parties had been nominated for the January 2009 election of six judges and the nomination period had to be extended on 14 October due to the failure of states from Asia and the Latin America region to reach their minimum nomination requirement for their region. For the January 2009 election of six members of the Committee on Budget and Finance only six candidates have been nominated and the nominations have been closed as no minimum nomination requirement exists for that election.

Amnesty International urges all states parties that have not done so, regardless of their region and whether other states in the region have nominated, to take immediate steps to nominate the highest qualified candidates from their countries or other states in a transparent process in close consultation with civil society at every stage. In addition, it urges each state party that put forward a nominee to provide detailed information to the Assembly about the procedures that they used to obtain the best possible pool of candidates and to evaluate and select its nominee.

XI. DECLARATIONS REGARDING THE ROME STATUTE

Amnesty International welcomes the decision by France to withdraw an article 124 declaration the government made upon ratification. Our organization urges Colombia, as the only other country to have made an article 124, to also withdraw its declaration and for states to support the deletion of the inappropriate provision from the Rome Statute at the Review Conference.

In addition, as in previous years, Amnesty International is seriously concerned that declarations made upon ratification by some states amount to disguised reservations. Although Article 120 of the Rome Statute provides that no reservations may be made to the Statute, unilateral declarations which specify or clarify the meaning of certain provisions are not expressly prohibited. In its report: International Criminal Court: Declarations amounting to prohibited reservations to the Rome Statute²⁴the organization examines declarations made by states parties to date and concludes that a number of them amount to reservations, including unilateral declarations made by Australia, Colombia, France, Malta, United Kingdom and Uruguay. The legal analysis sets out in detail the organization’s concern and calls on all states parties not to make any declaration that may amount to a reservation. Our organization welcomes the decision by Uruguay on 26 February 2008 to withdraw its declaration and urges the other listed states to withdraw their declarations. Furthermore, Amnesty International calls on the Court not to take into account such declarations.

Amnesty International urges the Assembly to examine this issue and to call on states which made such declarations promptly to withdraw them.