Brussels/Rome – 17 July 2022
The year 2022 has seen – so far – the greatest expression of political will in support of accountability that we have witnessed since the adoption of the Rome Statute 24 years ago, and its entry into force just over 20 years ago. The catalyst was the illegal invasion of Ukraine by the Russian Federation in February 2022, and the numerous crimes committed on the territory of Ukraine since then.
At the Ukraine Accountability Ministerial Conference held in The Hague last week, Ukrainian President Volodymyr Zelenskyy expressed his concern that the memory of the crimes committed during the early days of the Russian invasion were being forgotten, that victims would be left behind as the war continues to be pursued by the Russian Federation and new crimes are committed, new victims created, new survivors having to bear new suffering. He asked us – those in the room and those watching from afar – to stand in memory of the victims of Russian aggression. We must continue to stand with them. We must allay his concerns and ensure justice for victims in Ukraine, since 2014, ensure that the political will that is at its highest point for a quarter of a century does not fade, does not fail, but maintains its course for the delivery of justice and redress.
For Ukraine, justice and redress are an essential part of the puzzle for the path towards peace and reconstruction that we hope will come soon, once the guns are silenced and the Russian forces repelled for good from Ukrainian territory. For the rest of the world, Ukraine is one part of the puzzle towards justice and redress for victims of violations the world over.
The situation in Ukraine has shown us two things for the international criminal justice system. First, that the Rome Statute system is not (yet) fit for purpose. In March 2022, when an unprecedented number of States referred the situation in Ukraine to the ICC, thereby supporting Ukraine’s own self-referral in 2014 and 2015, it was clear that the ICC lacked capacity to handle this new situation alongside all its existing ones. Its Prosecutor, Karim Khan QC, said as much when he made his own unprecedented request for additional support from States Parties. Many States Parties said as much when they rose to the occasion, providing voluntary funding and gratis personnel to support the OTP’s capacity to conduct its work, across all its situations. Civil society, for its part, has been sounding the alarm bells for years.
This, however, is the second thing we saw: when the political will is there, action can be taken to help make the system fit for purpose. The Ukraine Accountability Ministerial Conference is a further demonstration of this: additional pledges, additional support, additional determination to cooperate with all relevant actors to document crimes and see perpetrators brought to justice.
Now is the time to renew the commitment to victims in Ukraine, in Afghanistan, in Uganda, in Palestine, in Central African Republic, in the Philippines, in Venezuela, in the Democratic Republic of Congo, in Georgia, in Colombia and in all other situations too numerous to mention, both those touched by the ICC and those not. Denial of justice for victims in any of those situations weakens the struggle for justice and accountability everywhere, emboldens criminal leaders and normalises atrocities. Instead, we need to strengthen those parts of the system that work but are languishing for lack of resources or political will, and build or rebuild those parts of the system that clearly do not work.
Some key areas include:
- ICC budget: The ICC must ask for the money it needs within its regular budget to cover all its work, including investigations, prosecutions, outreach, in-country presence, victims participation, defence fair trial rights, family visits, reparations, victims assistance, court management, interpretation/translation and many more. The ICC has thousands of moving and inter-locking parts, each of which needs to work for the Court to deliver its mandate and many of which actually do not work, leading to continuous gridlocks.
- State Party responsibilities: States Parties must reject the damaging notion of zero nominal budget growth; they have been slowly strangling the Court for years, then lamenting the fact it does not work properly. This must stop: more crimes and more situations has to mean more money.
- Civil society support: Civil society working on ICC-related issues are an integral part of the Rome Statute system; human rights defenders working on ICC-related issues are the lifeblood of international criminal justice. As States are stepping up financial support for the ICC, they must also step up financial and political support for civil society and human rights defenders, many of whom face extreme risks in carrying out their work.
- Universality: States that have not done so – including Ukraine – should ratify and implement the Rome Statute as an urgent priority. This would reduce the availability of safe havens for perpetrators of war crimes, crimes against humanity and genocide and increase the space and possibilities for justice for victims of those crimes.
- Cooperation: The ICC has responsibility for investigating crimes, for supporting victims and for engaging affected populations, including through its outreach work. Throughout this work, it needs cooperation both from States and also civil society, to support it, to provide constructive criticism to improve its performance and to defend it from unwarranted political attacks. At a certain point, however, the ICC needs State cooperation to arrest suspects so they can be brought to trial, to face justice and to defend themselves. The fact that so many ICC-fugitives remain at large and the international community, including many ICC States Parties, still engage with those fugitives and other perpetrators for non-essential purposes calls into question any stated commitments to justice. Under the Rome Statute, States Parties have the responsibility to make arrests: they must fulfil their side of this bargain.
- Consistency: Accusations of double standards have haunted the international community’s response to the situation in Ukraine. The answer to those accusations is not to do less for Ukraine, but that the ICC must do more and must do better where atrocities are committed elsewhere. Fist-bumping MBS, cosying up to the Janjaweed and normalizing the Taliban, to name but a few, all have a cost in terms of legitimacy that all victims, including the Ukrainians, end up paying. Denial of justice for victims anywhere weakens the pursuit of justice everywhere.
- Broader reform: The ICC is but one actor on an international level that depends on the actions of States, who set the justice and human rights agenda, create justice and human rights systems at the regional and international level and– for the United Nations Security Council – can make decisions that are binding on all other UN member States and can refer situations to the ICC. The broader system should work in harmony; it should work with one voice to protect and promote human rights, including the right to justice and redress for victims of war crimes, crimes against humanity and genocide. The permanent members of the UN Security Council should refrain from using the veto in cases involving atrocity crimes and all States who have not done so should sign the Political Declaration on Suspension of Veto Powers in Cases of Mass Atrocities.
The year 2022 should be the beginning of an ever-growing trajectory of political will for accountability that does not rest until all victims everywhere have the justice and redress that is theirs by right. Justice is not a zero sum game. Victims everywhere are uniting across ICC situations; they know that delivering international justice for each of their situations requires a Rome Statute system that works properly for everyone. States Parties should take heed.
For further information, please contact Alison Smith, Director of International Justice, on asmith@npwj.org or Nicola Giovannini, Press & Public Affairs Coordinator on ngiovannini@npwj.org.
