Remarks by Jonathan Fanton at the ICC Office of the Prosecutor's Second Public Hearing
October 18, 2006 | Speech | Human Rights

Thank you for inviting me to participate in the conversation between the ICC and leading NGOs working to prevent and alleviate human suffering related to civil conflict.

Today we are likely to address many of the issues we talked about in March and June of 2005, when MacArthur facilitated a dialogue between the Prosecutor and some of the organizations represented here on the situations in Northern Uganda and Darfur.

As most of you know, MacArthur has a long-term interest in helping develop a system of international justice with the ICC as the centerpiece.  Starting with a grant to bring NGOs from the South to Rome during the Conference that gave birth to the Court, MacArthur has supported 29 organizations working on various pieces of the challenge.  Some examples:

  • The International Coalition for the Court to speed ratification;
  • Phillipe Kirsch's preparatory Commission planning the Court;
  • Groups like Human Rights Watch and Global Rights, which gathered evidence helping prepare the first cases (in the DRC);
  • The Ugandan Coalition for the ICC  and the Institute for War and Peace Reporting to help educate the public about the court;
  • Redress, Advocates Sans Frontiers (Ah vo caht  sahn  Front-yer), and Women's Initiative for Gender Justice for their work with victims and witnesses; and
  • The International Center for Transitional Justice and Berkeley Human Rights Center for pioneering efforts to give a voice to victims through population surveys.

While we strongly support the Court, we believe the public interest is served by facilitating independent evaluations of the Court free to make critical or challenging commentary.  Hence our support for the International Bar Association's project monitoring and evaluating ICC procedures and its outreach programs in the developing world.  And we will do more.

I was very pleased to see the paper on future prosecutorial strategy for two reasons.  First, I have been urging the Court to articulate its plan and establish reasonable expectations.  Others have more ambitious expectations - or perhaps fears - and it is useful to have a point of reference to judge.  Second, by laying out the plan, there can be a healthy debate about the scope and limits of the Court's strategy.  This meeting is an essential part of that discussion and I commend the Prosecutor for reaching out to NGOs in this spirit of partnership.

While NGOs must always be free to criticize the work of the Court, I do think they have a responsibility to explain what the Court is doing.  Not endorse it, but build an accurate factual record with people in affected countries who deserve to learn about the Court's work from a trusted source.

With that said, I believe the Report on Prosecutorial Strategy is clear and compelling.  The objectives of completing two separate trials and opening 4 - 6 new investigations in three years seem reasonable. The emphasis on helping accelerate arrests of those indicted and sensitivity to the role of victims and witnesses is right.  As I understand it, the Registry is responsible for developing the Victims Trust Fund, but it would be good to hear more about that today.

I like the reference under part VI to positive complementarity and to documenting instances where the existence of the Court has improved national justice practices - both in modifying laws to conform with treaty obligations and in spurring more vigorous prosecutions of those just below the level of the ICC's focus.  It may be that a new form of hybrid Court will be necessary for those too hot to handle by existing national courts. 

I also like the goal of documenting instances where the existence of the Court might have a deterrent or modulating effect.  It may take years to build a record that is persuasive, but the effort should start now.

Given how busy the Court is, I would think the documentation of the Court's impact on national judicial systems and the preventive dimension would best be done independently.

Let me close with a few concerns:

  1. The first is obvious: not all the cases should come from Africa.  More time may be needed for investigations in other parts of the world, or for issues like human or arms trafficking that involve actions in many places.  These new cases may be more likely to come through the proprio motu powers of the Prosecutor.
  2. I would like to hear more about the options for Sudan.  At the moment it stands alone as the only situation referred by the UN Security Council where the government is hostile to outside intervention and perhaps complicit with the crimes under investigation.  Winning a case or two in the Congo, but making no progress in Sudan, would weaken the Court.
  3. Among the unresolved issues that might be addressed in the period ahead is how the Court interacts with the peace process underway in the some situations.  Uganda has been a case in point.  Reasonable people will differ in their views on how the peace/justice balance can be struck.  I know you have been sensitive to the larger context when pursuing a situation.  But it would be useful to understand under what circumstances it might make sense for the Security Council to suspend a case through the mechanism provided for in Article 16 of the Rome Statute.
  4. For the Court to achieve its goals, the gap between the Court's headquarters in The Hague and communities where crimes occurred must be bridged. I would like to hear more about the possibility of opening field offices in situation countries and holding in situ hearings.

Let me conclude by reaffirming the broad vision underlying the strategic plan:  all of us here are engaged in an historic opportunity.  The world is on the cusp of having an integrated international system of justice -- and I underscore the words "integrated system." 

The ICC has rightly defined itself, setting norms and standards and limiting itself to a few leaders in the most serious situations where national courts are unable or unwilling to act. But an integrated system of international justice will be a seamless web encompassing the ICC, national courts, traditional justice and reconciliation processes, and perhaps a new form of hybrid court.  And let us not forget regional Human Rights Commissions and Courts, which are playing an increasingly important role in pushing back arbitrary and illegal practices in Europe, Latin America, and in Africa.  Respect for norms, laws and rules are an indivisible concept - respect begets respect. The reverse is also true: relatively minor violations of human rights are the building blocks for gross abuses later on.

So I conclude by thanking the Court and the Prosecutor for your vision of an integrated system of international justice.  You can count on MacArthur to help you, other regional courts and commissions, and the civil society organizations that are playing such an indispensable role.

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