Civil society plays an important role in the implementation of the mandate of the International Criminal Court (ICC). The President of the ICC recognized this during the event commemorating International Justice Day this year, by highlighting the benefits of maintaining regular dialogue with civil society. The Open Society Justice Initiative is hosting a discussion on this issue at this year’s Assembly of States Parties meeting in The Hague.
Civil society organizations (CSOs) greatly contributed to bridging the gap between the court and local communities, which is particularly important for the ICC given its physical and cultural distance from the affected communities. The relationship between civil society and the ICC has been especially crucial in the context of gathering information relating to alleged Rome Statute crimes. However, the extent to which non-ICC staff can conduct fact-finding and documentation for ICC purposes is still a sensitive matter because it may impact on perceptions of the court’s independence.
Civil society actors document abuses committed in their communities for a variety of purposes, using various standards and methodologies. The ICC framework, however, places particular methodological parameters around such documentation efforts. The court’s jurisprudence has addressed the challenging dynamics of this fact-finding process and the relationship between the ICC and civil society, including the issue of intermediaries, and the extent to which the Office of the Prosecutor (OTP) can use non-governmental organization (NGO) reports.
However, key aspects related to the dynamic between the ICC and CSOs remain to be addressed. Based on global consultations with CSOs, we have identified the following priorities for strengthening the relationship between the ICC and CSOs.
Depending on the context, fact-finding can serve different purposes, and may not necessarily be restricted to gathering evidence of the purpose of prosecuting individuals at the ICC. There are diverse objectives behind civil society involvement in documentation. These include: the need to contribute to a historical record; to understand conflict patterns; to provide information to the general public; to promote dialogue with political authorities; to guide government laws and policies; to contribute to and support victim empowerment initiatives; to pursue reparations for victims; and to pursue prosecution of perpetrators of serious crimes before competent courts at national, regional, or international level.
Their primary goal is first to collect information; decisions on how the information will be used are often made at a later stage in the process. These decisions are guided by numerous factors that may include political and legal developments as well as restrictions that local actors may face. It is important to note, therefore, that seeking legal accountability is not necessarily a primary goal at the time civil society organizations begin their documentation work.
Civil society actors expressed the need for the ICC to recognize that NGOs have mandates that are broader than cooperation with the OTP, and NGOs must therefore decide the terms of their engagement with the ICC. It is particularly important to recognize that civil society functions independently. Although the court and civil society groups may share the objective of seeking accountability, NGOs are committed to their own mandates and responsibilities to their communities. NGOs and victims are not aligned with any political interest other than the commitment to attain justice, and this is the sole motivation behind decisions to share their fact-finding information with judicial institutions such as the ICC.
Through their fact-finding work, NGOs and CSOs make a substantial contribution to the realization of victim’s rights. Across different regions, civil society actors highlighted the need to advance the priorities of victims in the accountability discourse, through incorporating victims’ experiences within national and international accountability mechanisms. Some local groups even went so far as to strongly advocate that victims’ needs must be prioritized over the methodological requirements for documentation or litigation.
Protection of Information Sources
Owing to the sensitivity of the issues they document, protection is a major priority for CSOs. This is especially the case given that the ICC is required to focus investigations on alleged perpetrators who bear the most responsibility, and are therefore typically high-level state and non-state actors. The reality, however, is that NGOs have limited capacity with respect to protection issues. And with the cooperation between NGO fact-finding and national judicial processes, civil society actors have limited control over the protection that can be offered to their information sources.
As an institution that benefits from NGO fact-finding reports, the ICC needs to review its witness protection regime and protocols to provide maximum protection to individuals who risk their lives to testify at the ICC. In particular, full information must be shared broadly with communities at the earliest stages of the ICC’s engagement, including during the early phases of preliminary examinations. Some civil society actors have in some cases interacted with the court without first understanding the full implications of potential future disclosure of their information to the defense. Furthermore, the OTP has reported an increasing pattern of witness interference through bribes, intimidation, and threats. These circumstances have made CSOs skeptical about sharing information with the court because this may not only endanger their staff, but also their sources.
Role of Technology in Fact Finding
CSOs recognize that the environment in which they are operating is fast-changing, particularly owing to the increasing use of modern technology. Technology has the potential to improve the fact-finding work of NGOs, particularly the process of collecting and preserving certain types of information. Technology access and use varies greatly from context to context. Because it is a relatively novel area, the understanding of the potential for technology to advance accountability is rather limited in terms of full integration within the work of civil society actors and the ICC.
In most of the regional consultations, civil society actors identified that technology has the potential to fill evidence gaps, particularly in contexts where the ICC begins its operations in a situation country several years after the alleged crimes were committed. This time-lag may lead to the erosion of critical evidence. As actors on the ground, civil society can rely on technology to collect and preserve such information. However, CSOs need basic minimum standards to follow while using technology as a means of fact-finding. During the global consultations, NGOs requested guidance regarding their role in online and open source information gathering, particularly with respect to basic minimum standards on finding, capturing, storing, and transmitting information.
Need for Capacity Building
There is limited awareness of international criminal law, in particular the basic minimum standards for fact-finding. Civil society organizations have expressed the need for guidance on the gravity threshold of crimes under the court’s jurisdiction, ICC evidence standards, as well as specific training in the fields of international criminal law and international humanitarian law. Providing effective documentation to the ICC also requires an understanding of how to prove international crimes, such as, for example, proving contextual elements, a policy to commit crimes against humanity, different modes of liability, and the existence of an armed conflict.
Fact-finding is an integral part of NGOs’ and CSOs’ human rights work. However, the needs in relation to fact-finding vary greatly from region to region due to differences in capacity, expertise, and approaches to documentation. Although the documentation reports of NGOs have proved relevant in a number of accountability proceedings even at the ICC, it should be recalled that the primary role to conduct investigations lies solely with courts themselves. While there is often a nexus between CSO fact-finding and court accountability processes, civil society acknowledge that the former cannot supplant the latter. NGO fact-finding efforts therefore complement the work of the ICC, and can only be conducted effectively based on mutually reinforcing relationships between the ICC and CSOs, particularly around the understanding of basic minimum standards for fact-finding. The ICC and civil society groups must come together to shape the development of basic minimum standards through collaborative sharing of best practices and expertise.
Please join us to discuss these issues Friday, November 20, 2015 from 13:00-15:00 at the session on “Civil Society and the International Criminal Court: Local Perspectives on Fact-Finding,” co- hosted with the Philippines in the Africa Room at the ASP.