The New Democratic Diplomacy and the
International Criminal Court

Negotiations for the International Criminal Court (ICC) are often cited as a positive example of how civil society and sovereign states can work together within the UN for the greater good. Having participated in these negotiations as a government representative and as a representative of a human rights NGO, I am interested in whether these negotiations should be considered as such a role model.

Almost, 50 years after the UN first contemplated a permanent international criminal court, the international community took international human rights law a quantative leap forward by adopting the Rome Statute for the ICC on 17 July 1998.

While the International Court of Justice (the World Court) has been able to settle disputes between states since its creation by the UN Charter, the ICC will be the first permanent international court, impartial and independent and able to investigate the worst human rights abuses, genocide, crimes against humanity and war crimes, and prosecute the individuals responsible.

At the moment in Rome when it became clear that the majority of States would vote "yes" to the ICC Statute, there was a spontaneous cheer from the NGO’s who were crammed into the back of the meeting room at the FAO. Despite the many deeply disappointing compromises in the final text, there was a sense of great achievement and of incredulity about what had been done in Rome. The Conference had actually managed to agree on establishing a permanent court with power to try anyone, even heads of state, for egregious human rights violations.

The next day, at the ceremony for the adoption of the Statute, the Secretary-General of the UN summed up the position of those who had been cheering the night before. While acknowledging the Statute’s imperfections, he said:

[I]t is still a gift of hope to future generations, and a giant step forwards in the march toward universal human rights and the rule of law. It is an achievement which, only a few years ago, nobody would have thought possible."

This statement, in part I believe, explains the enormous interest the ICC has generated among civil society everywhere. It helps to explain why 235 NGO’s participated at the Rome Conference, why NGO’s continue to turn up in droves for the Preparatory Commission meetings that have been held since Rome, and why many of us are working full time, all over the world, for ratification of the Rome Statute.

The human rights NGO community and many other representatives of civil society see the ICC, for all the faults in the Statute, as potentially changing the picture of human rights protection forever and, for this reason, it is a top priority. After half a century or so of developing universal human rights standards and exposing and shaming those who violate these standards, we now have an additional and powerful tool in the fight for respect for those rights.

The ICC also offers the chance for victims of human rights abuses to learn what happened to them or their loved ones, to tell their stories and have those stories validated, and to see the perpetrator brought to justice.

The establishment of the ICC will add a missing, but crucial element to the international Bill of Rights: some prospect of enforcement of human rights standards; individual accountability for the most egregious violations; and, hopefully, deterrence. Presumably, for all these same reasons, the Secretary-General of the UN included the Rome Statute in the list of 25 core treaties in his Millennium Report.

It is important to assess who has constituted civil society in the ICC context before examining the role that it has played. The NGO Coalition for an International Criminal Court (CICC) was established to coordinate the efforts of civil society and it has done a tremendous job at this. There are currently about 1000 members of the Coalition, which has organized regional networks in Asia, Africa, the Middle East, Europe and Latin America. Members of the Coalition include international and national ngo’s, bar associations, academics, faith-based groups and victims’ organizations. Each of these groups must subscribe to a basic set of principles in support of a strong and effective international criminal court in order to join the Coalition. In speaking about the positive contribution of civil society to the ICC process, I am speaking only about those members who are part of the CICC.

Although, it is difficult to quantify the contribution made by civil society in any international negotiation, it is important at least to look at their role at ICC negotiations, not least because these negotiations, along with those for the Ottawa Convention banning landmines, have been held up as evidence of the new democratic diplomacy.

In the ICC negotiating process NGO’s have organized themselves, under the extraordinary coordination of the CICC, in such a way as to maximize their impact. Regional and thematic caucuses were set up and this has meant that the CICC could operate in a focused way to great effect. For example, the women’s and children’s caucuses in Rome played a vital role in ensuring that gender crimes and crimes against children were appropriately addressed in the Treaty and that adequate provision was made for victim and witness protection.

In addition to this type of strategic coordination, the level of expertise among NGO’s in the ICC process has played an important part in their effectiveness. The breadth and depth of this expertise is obviously appreciated by government delegates who regularly solicit advice from NGO’s. I have certainly benefited from this expertise in my previous role as a government delegate both in the ICC process and in other human rights treaty negotiations.

The many veteran human rights campaigners in the CICC are joined by experts on matters pertaining to the defence, the special needs of victims and witnesses, gender issues, humanitarian law, international human rights law, criminal procedural law and so on. There are also people with first hand experience of the workings of international criminal tribunals, in particular the two ad hoc tribunals and even the Nuremberg tribunal.

I think that the question of the expertise of NGO’s in the ICC process is so important. It has been used by civil society to great advantage, and for the benefit of all. All 3 of the instruments on the ICC that have been adopted so far, the Rome Statute, the ROPE and the Elements, have benefited from this expertise and are better documents as a result.

I also believe that the level of technical assistance that NGO’s and civil society representatives have been able to offer is a major reason for the close working relationships that have developed between delegations and civil society. In turn, this relationship has allowed civil society to have a greater impact on the outcome.

The positive impact on the outcome of these negotiations goes hand in hand with the positive impact of NGO participation on the process. In addition to greater transparency generally, the CICC and its members disseminate information about the negotiations very widely. Given the potential of the ICC to affect the lives of people in different parts of the world by bringing abusers of human rights where ever committed to justice, global awareness of the Court and its value is of great importance.

The vocal presence of civil society at negotiations means that the perspectives of non-state actors from around the world, many of whom are women, and some of whom have had first hand experience of the effects of impunity, are taken into account by delegates and the text of the ICC instruments reflect this.

However, I would be uncomfortable if I thought I was creating the impression that all is rosy in the government, NGO alliance. Unfortunately, it is not.

As much as the ICC negotiations may be a good demonstration of the kind of cooperation that can occur between states and non-state actors, and of the powerful role that civil society can and does play, it is also a good example of the limitations to this. When the negotiations get difficult and politically charged, predictably enough delegates re-assert their control of the process and increasingly exclude NGO’s from discussions altogether. Unfortunately, this has become a bit of a pattern in the ICC negotiations.

Although NGO’s have rarely been allowed to attend the closed "informal" negotiating sessions in the ICC context, the Preparatory Commission dramatically increased its use of these meetings in its last few sessions. Obviously this affected our ability to influence the process for a better outcome, to keep civil society at large informed and to hold delegates and their governments accountable. It also undermines the transparency of the process and thus, the process itself. It is important to remember that it is not only civil society that is excluded from these meetings. As there are rarely translation services in informal meetings, small, usually non-English speaking countries are also effectively excluded, to the great detriment of all and of the process itself.

While it is to be expected that NGO’s will be excluded from sensitive political discussions, the sometimes cynical use of informal meetings at the last Preparatory Commission in June, raised serious questions among members of the CICC about the commitment of delegates to the new "partnership". This was compounded by an absolute lack of transparency over the negotiation of one of the most important issues facing the ICC, the push by the US to gain an exemption from the jurisdiction of the ICC for its nationals. These negotiations had been conducted at the most informal level, with no possibility for NGO participation.

Exclusion of NGO’s at critical points in the negotiations may be symptomatic of a broader problem relating to transparency in the negotiating process and the sometimes jealously guarded control of negotiations by a few powerful states. The fact is that most states were also excluded from these discussions.

When the meeting scheduled to discuss the outcome of these secret negotiations was suddenly, and for no reason, converted into a closed session and NGO’s were expelled from the room, there was considerable dismay about the way the ‘new democratic diplomacy’ was so easily discarded, even by those states that are among the strongest supporters of the Court and who have been the champions of NGO participation in the UN. This episode has also raised real concerns about the future working relationship between NGO’s and delegates, particularly at the next session of the Preparatory Commission in November when it is expected that the controversial issue of an exemption for the US will be on the table once again.

In some areas, however, there is considerable evidence of an effective alliance between civil society and governments. For example, maintaining the "integrity of the Rome Statute" is a principle that the CICC and many states share and have worked successfully together in the Preparatory Commissions to uphold. The challenge facing NGO’s will be to ensure that this alliance can withstand the enormous pressure expected from the US.

As I have indicated above, the work on ratification of the Rome Statute is another area in which there is a real working partnership. The early establishment of the Court is a common desire that the CICC and its members share with many governments and we are working together to gain more ratifications and to ensure that these ratifications are made meaningful through effective national implementation of Rome Treaty obligations. The CICC and many of its members are working with governments to ensure that the Rome Statute enters into force sooner rather than later.

There are a number of outstanding important issues facing civil society. Chief among these is the US push for an exemption, which I have mentioned. This matter is expected to come up at the next session of the Preparatory Commission in November/December 2000, in the debate on the Relationship Agreement between the ICC and the UN.

Of course an exemption for the nationals of any state from the ICC is wholly unacceptable and would undermine the very purpose of the Court, namely ending impunity for the worst human rights abusers. Importantly, a number of governments, including the EU, have said as much, but there is a lot of work to do.

The next session of the Preparatory Commission will also be considering a definition for the crime of aggression, and the rules for the financing of the Court. Both these issues are of great importance for the future effectiveness of the ICC: aggression because many states see a resolution on this issue as essential to the future legitimacy of the Court, and therefore whether it will be worthy of their support; and financing for the obvious reason that the Court will be very expensive and without a firm commitment to fund it appropriately, it will not be able to investigate or prosecute those accused of the most egregious human rights abuses.

Of course, there is also the enormous challenge of gaining the 60 ratifications needed for the Rome Statute to enter into force. There are currently 15 ratifications and 98 signatures. While "15" does not sound like a lot of ratifications in 2 years, it is worth remembering that before the Ottawa convention on landmines set a new speed record, 2 years after the conclusion of a major treaty was considered a short period of time.

Ratifications are proceeding quickly given the complexity of the Statute and the fact that many states that plan to ratify are grappling with difficult and politically sensitive constitutional issues. For instance, France amended its constitution in order to ratify and other countries are considering or have decided to do the same. The willingness of states to amend their constitutions, never an easy decision or process, is an indication of the level of commitment to the Court.

It is likely that by 2003, 5 years after the adoption of the Rome Statute, the 60 states needed for the Treaty to enter into force, will have ratified and the Court will be established in The Hague. .

Civil society is playing a key role in the ratification campaign. Amongst other things, we are coordinating briefings on the ICC for civil society, government and parliamentarians all over the world and holding practical training sessions for governments on implementation of the Statute. These actions are sometimes taken in concert with governments and, as I said, this aspect of the partnership is alive and well.

In Conclusion

Civil society has been both credited and accused of generating the will needed for the adoption of ICC treaty and for ensuring that the ICC will be strong and independent. Our role in the ICC process also has been lauded by some as evidence of a new democratic diplomacy and derided by others as evidence of a democratic deficit.

Whatever is said about our role, there can be no doubt that we are having an impact. Because of this, we are generating discussion about our role: what it is; what it should be. This seems significant to me. The fact is that there is an international constituency beyond the interests of states, however irregularly constituted, and this must be taken into account in the negotiating process, whatever the subject matter.

In the important role that civil society will continue play in the ICC context; ensuring that the Court is established as soon as possible, that it is adequately funded and appropriately staffed, that it receives crucial evidence of crimes and that it adheres to the strict international legal standards for fairness and impartiality of criminal trials, it will require the partnership of governments and of the UN. The ICC will also depend on such a partnership if it is to fulfil the expectations of the 120 states that voted "yes" on July 17, 1998.

To end, in addressing civil society representative in New Zealand in February, the Secretary-General of the UN said he looked ahead to " a UN keenly aware that if the global agenda is to be properly addressed, a partnership with civil society is not an option; it is a necessity." The terms of this partnership are still to be determined for mutual, global benefit.

Thank you for your attention.

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22-23 Feb. 2006 Annual DPI/NGO Orientation
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