Dear Minister,

I am writing on behalf of Amnesty International to urge you to take a number of important steps to
affirm your country’s support for international justice at the forthcoming Review Conference of the
Rome Statute of the International Criminal Court (the Court) which will take place in Kampala, Uganda from 31 May to 11 June 2010.

Taking place almost eight years since the Rome Statute came into force and almost 12 years since its historic adoption, the Review Conference is a milestone in the implementation of the new system of international justice. The Conference will not only be the first opportunity for states parties to consider amendments to the Rome Statute, but also a vital stocktaking process to review how the Rome Statute system has worked so far. The importance of the occasion demands high-level participation from states parties and we urge you personally to participate to show your country’s strongest support for the Rome Statute system and to persuade your counterparts from other states parties to do the same.

Amnesty International is currently developing a detailed position paper to be issued at the end of this month on the amendments before the Review Conference and the items on the stocktaking agenda. We are, however, writing to all ministers of foreign of affairs of states parties at this time to urge them to review the mechanisms they have in place to meet their obligations under the Rome Statute and to support fully the success of the Court. In doing so, we have identified the following nine benchmarks that all states parties should meet, preferably before the Review Conference. However, if it is not possible to take all necessary steps in advance of the Review Conference, we understand there will be important opportunities in advance of and during the Review Conference to make formal pledges to take such steps.

Benchmark 1: All states parties must enact or amend national legislation ensuring their authorities can investigate and prosecute genocide, crimes against humanity, war crimes, and other crimes under international law in accordance with the strictest requirements of international law. Each state party recognizes that under the principle of complementarity it has the primary obligation to investigate and prosecute genuinely these crimes before their national courts. The Court will only step as a last resort in when states are unable or unwilling genuinely to do so. To ensure the success of the complementarity system and to avoid over-burdening the Court with cases, a full review of existing national laws must be conducted and new legislation enacted or existing legislation amended. To date, less than half of the 111 states parties have done so and much of that legislation has serious flaws.

Benchmark 2: All states parties must enact national legislation ensuring that they can cooperate fully with the International Criminal Court. The Rome Statute expressly requires states parties to cooperate with the investigation and prosecution of crimes under the jurisdiction of the Court (Article 86) and identifies some specific forms of cooperation that may be required (Article 93). In addition, the Assembly of States Parties has issued a detailed Report on Cooperation at its sixth session in 2007 setting out 66 recommendations for states parties. Regrettably, less than half of the 111 states parties have enacted cooperation legislation and much of that legislation has serious flaws.

Benchmark 3: All states parties must ratify the Agreement on Privileges and Immunities of the
International Criminal Court. The Agreement, which was adopted by the Assembly of States Parties at its first session in 2002, sets out privileges and immunities which are vital to the operation of the Court and essential to guarantee a state party’s full cooperation. To date, only 62 of the 111 states parties have ratified the Agreement.

Benchmark 4: All states parties must enter into a victims and witness relocation agreement with the Court. The work of the Court dictates, that even when strict precautions are taken, victims and witnesses may become at such serious risk because of their interaction with the Court that they need to be relocated to another country. States parties must therefore assist the Court with resettling to their countries victims and witnesses at serious risk and providing them with essential services to ensure their integration. Effective victim and witness protection is a key element of the Court’s investigation and prosecution of crimes under its jurisdiction and is, therefore, not optional. Amnesty International is seriously concerned that, in its Report on Cooperation issued to the Assembly of States Parties at its last session, the Court states that the total rate of successful relocations currently stands at 40%. This is unacceptable. Urgent measures are required of states parties to make their countries available for relocations.

Benchmark 5: All states parties should enter into enforcement of sentences agreements with the Court. Part 10 of the Rome Statute provides that convicted persons will serve their sentences in the prison facilities of states willing to accept convicted persons. Such facilities must meet international standards. Amnesty International is concerned that only two states so far – Austria and the United Kingdom - have committed themselves to accept convicted persons by entering into an enforcement of sentences agreement with the Court. With the first trials now taking place, it is important that all states parties whose prison conditions meet international standards enter into an agreement to provide the Court with a range of venues in all regions and that others bring their prisons into conformity with these standards so that they can enter into such an agreement.

Benchmark 6: All states parties should designate national contact points on cooperation.
Communications between states parties and the Court are vital to guarantee effective cooperation.
Without clear communication channels, the Court’s requests for cooperation risk going unanswered. Amnesty International notes that in its Report on Cooperation to the Assembly “more than 40 states had not yet designated a permanent contact point responsible for cooperation.”

Benchmark 7: All states parties should designate national contact points for the Assembly of States Parties’s Plan of Action for Universal Ratification and Full Implementation of the Rome Statute and respond to the annual survey of states activities. Amnesty International strongly supports the Assembly’s Plan of Action to achieve universality of the Rome Statute. Since its adoption in 2006, however, there are worrying signs that in practice most states parties are not taking any steps to implement it. In particular, there have been limited responses to an annual survey submitted to states parties by the Secretariat of the Assembly of States Parties on steps they have taken to implement the Plan. Only 22 states parties have responded so far to the 2009 questionnaire.

Benchmark 8: All states parties should make annual voluntary contributions to the International
Criminal Court’s Trust Fund for Victims. The Trust Fund established in accordance with Article 79 of the Rome Statute is mandated to provide essential assistance to victims and to fulfil the Court’s reparations awards (where a convicted person is unable to do so). Now that the Trust Fund is operational, it is important that states parties provide it with regular voluntary contributions to fulfil these important tasks.

Benchmark 9: States that have made declarations amounting to prohibited reservations to the Rome Statute must withdraw them. Amnesty International notes that a number of states, including Australia, Colombia, France, Malta and the United Kingdom have made declarations to the Rome Statute which, according to Amnesty International’s legal analysis International Criminal Court: Declarations amounting to prohibited reservations to the Rome Statute (AI Index: IOR 40/032/2005), amount to reservations and are, therefore, prohibited by Article 120 of the Rome Statute. These reservations must be withdrawn with immediate effect. Amnesty International plans to publish information to be distributed before the Review Conference indicating whether states parties have met these benchmarks. Amnesty International urges you to take all measures to address these important issues so that your country can participate in the Review Conference fully committed and prepared to fulfil its obligations under the Rome Statute. If all issues cannot be resolved in the time constraints of the Review Conference, we urge you to make a formal pledge in advance of or during the Review Conference to address the outstanding issues as soon as
possible.

Yours sincerely,

Claudio Cordone
Secretary General (ad interim)

Source: Amnesty International