II. The NGO Perspective

Many NGOs do not aid the OTP’s prosecutions of SGBC because cooperation with the ICC significantly threatens an NGO’s aid delivery and fieldwork.

A. Confidentiality and Neutrality

Confidentiality and neutrality are crucial in the delivery of aid to victims of sexual violence, which may be hindered by actual cooperation with the OTP or the appearance of a relationship. The ICRC, for example, which is often present delivering humanitarian aid in situation countries, must maintain its historical commitment to its fundamental principles, including the tenets of impartiality, neutrality, and independence.14 Structured so as to be the neutral delivery of aid in conflict situations, a position of ICC cooperation or any perceived western-oriented relationships defeats the neutral and confidential position the Red Cross relies on to gain access to victims.15 Often sexual violence, such as rape, is used as a tool of war to target one ethnic group or one population.16 The ICRC’s support of OTP prosecution efforts would necessitate a non-neutral position against the perpetrating population, potentially restricting aid to both sides.

MSF is often one of the first groups on the ground treating victims of sexual and gender based crimes in situation countries, placing the organization in an ideal position to gather evidence or testify. Discussing their encounters in the Democratic Republic of the Congo, aid workers state:

The morning we arrived, a large group of villagers gathered in the village of Abala awaiting medical care. All the women in that group told us they had been raped between June 9 to 12, 2011. The next day we went to the neighboring village of Nakiele, whose inhabitants told a similar story. Our team ended up staying here for two days instead of the one day planned so they could treat the high numbers of women that were presenting at the health center. The team then moved on to the village of Kanguli and treated more women including two with severe complications as a result of the rape.17

In order to deliver medical services to victims of rape and other sexual crimes, MSF must maintain a high degree of confidentiality and trust.18

The patients who come to receive treatment are overcoming shame, fear, stigmatization, and many other obstacles. Many people do not, or simply cannot, come forward to report their assault or seek treatment. However, finding immediate care after a sexual assault is critical in order to limit some of the serious consequences to the victim’s health.”19

Any notion (actual or perceived) that MSF treats a victim of sexual violence and then shares information with the ICC will destroy the tenets of trust MSF has worked to develop with affected populations and across situation countries.

B. Restricted Access and Expulsion

Strikingly, NGO cooperation with the ICC and the OTP leads to restricted access to populations in need of aid and may lead to complete expulsion from aid-delivery areas. Often, groups delivering support to victims of SGBC are working in volatile and violent areas, with rapidly changing dynamics. Without access to villages where victims have been raped or subject to other SGBC, NGOs cannot fulfill their missions of aid delivery. “During the last few years, humanitarian NGOs have certainly come to recognize that active participation in criminal investigations was likely to hinder their aid mission. It is difficult to get through a military checkpoint in a war zone while you’re denouncing the people who control it to the International Criminal Court.”20

Interaction with western-groups has a real and very immediate impact on international NGOs’ ability to deliver aid to victims of sexual violence.21 In 2004, while delivering aid to refugees in Sudan who fled from the conflict in Darfur, Save the Children and Oxfam were both ordered out of the country and prohibited from delivering aid by the Sudanese government.22 Aid groups have also seen specific and immediate results following ICC action, which many argue is due to cooperation with the ICC. “Within hours of the formal indictment of Sudanese President Omar Hassan Bashir, thirteen INGOs receive notice to leave Sudan. These included Oxfam, Save the Children, CARE, and MSF. Demonstrating the relationship between the expulsion and the ICC’s indictment, MSF’s summons to government offices occurred “within minutes after the announcement of the ICC,” according to MSF”s operational director in Darfur. Sudan accused the agencies of spying for the ICC.”23 The expulsion of these aid groups may be a result of the government’s perception that the NGOs supported the judicial proceedings of the ICC and the prosecution efforts of the OTP.24 “Humanitarian organizations operate at the will, and often the whim, of host governments—the very governments that are frequently responsible for the suffering that these organizations seek to alleviate.”25

C. Violence and Retribution

Forces and governments that use SGBC as a tool of war are quick to react to any condemnation of their acts from aid groups, followed by threats of persecution or actual violence. Beyond restricted access to aid areas, NGO workers and their clients face additional violence, sexual assault and even death in retribution for reporting sexual crimes or working with the ICC. The Court itself addressed this very issue in a 2012 report:

Alleged widespread occurrence of sexual and gender based violence: The Office notes the continued underreporting of sexual violence in Darfur. One of the alleged reasons is the reported persecution of those who speak out about rape by the Sudanese Security Forces.26

The results may be similar or worse for the individual aid worker and her population-served if NGOs are seen cooperating with the ICC to prosecute leaders in a given country. Discussing its 2013 work in the Congo, MSF reports:

The heightened presence of soldiers and armed groups near the displaced persons’ camps has created a chronic state of insecurity in which rape is an everyday occurrence.…Given the frequency of sexual attacks, rape has become commonplace. The individuals responsible act with impunity and are rarely punished. At the same time, very few victims file charges because they are afraid of reprisals.27

Even the outward reporting of SGBC, which may not rise to the level of aiding OTP prosecutions, can have dire consequences for aid workers. “The publication of a report by the Dutch section of MSF on rapes committed in Darfur by the national armed forces and pro-government militias…led to the indictment and arrest of the MSF head of mission and field manager in Khartoum for “espionage, publication of false reports and compromising national security.”28

D. Limited Funding and Resources

From a very practical standpoint, NGOs, both large and small, possess limited funding, resources, and time to address the extraordinarily vast need for their services around the globe. Many NGOs are privately funded and continuously work to secure enough monetary resources to deliver aid. As a result, NGO’s cannot divert any resources to help the OTP collect SGBC evidence. From additional procedures, documentation, time and supplies necessary for the actual collection of evidence, to the personnel expenses associated with testimony, using limited resources to support OTP prosecutions may result in less direct aid delivered. SGBC evidence collection requires timely attention and experts with specific medical training and supplies, which is costly.

Additionally, many aid groups have trouble replenishing supplies for their direct aid efforts on the ground, and cannot divert any scarce supplies in the field to support OTP prosecutions. As the MSF recently reported about aid efforts in South Sudan:

It is heartbreaking speaking to our staff, hearing their own precarious situation and that their supplies are running out when the little healthcare they are providing is all that is available in southern Unity State…We need access to civilians in the area and to resupply our staff with medicines, but it is simply too dangerous given the ongoing fighting. We don’t know how much longer they can hold out.29

Limited resources and ongoing violence make most situation countries dangerous for aid workers, and including the reasons discussed above, prevent cooperation with the ICC. These limitations are real and pressing for NGOs delivering humanitarian aid in situation countries.

III. Possible NGO Support of the ICC

While there are barriers to NGO-ICC partnerships, there are ways in which NGOs, both local and international, can continue to help the OTP with prosecution of sexual crimes. “[E]xcept for the International Committee of the Red Cross and, more recently, Médecins Sans Frontières, few organizations have drawn the logical conclusion that only a clear, transparent policy of non-cooperation with the ICC is compatible with the goal of helping, with total impartiality, the victims of war. The vast majority of NGOs have rejected such a commitment, preferring to choose on a case-by-case basis between humanitarian action and collaborating with the ICC to fight impunity.”30 An early 2004 Human Rights Watch report identified specific methods by which NGO’s can support with the ICC’s efforts, some of which are still very viable for SGBC prosecution.31 NGOs exist that might be willing to pursue various options in support of SGBC prosecutions.

NGOs can serve as first reporters of situations in which SGBC occur so that the OTP can quickly send in staff or investigators to collect evidence and identify witnesses. Early communications and SGBC reporting means less reliance on NGOs. Even information that does not rise to the level of testimony is crucial. “NGOs can inform the Office of the Prosecutor about crimes committed, a specific case, the historical and political context of human rights abuses, or the capacity or will of a state to investigate or prosecute crimes”32 NGO reporting, although it runs risks, may be a possible source of support for OTP prosecutions of SGBC.33

Some organizations may still desire to gather evidence or serve as witnesses; the identification of these organizations and subsequent outreach to these groups is crucial. For example, testimonial and evidentiary support for OTP prosecutions may come from organizations whose mission includes advocacy or prosecution work (such as anti-human trafficking or anti-sexual slavery groups), groups that have smaller infrastructure and more local reach, and groups that have not developed overarching policies regarding ICC cooperation. Additionally, NGOs influence on the ground establishing relationships with local populations may pave the way for ICC investigators, ICC outreach staff, and prosecutors. NGOs can educate populations regarding SGBC and support programs that care for victims. Sexual violence, most prominently rape, often causes great shame to victims and their families. Local partners can work to support programs that address this obstacle to prosecution.

Additionally, NGO’s can support prosecution generally by enforcing other aspects of international law. “NGOs have indirectly contributed to the development of international law through litigation in an ever-increasing number of adjudicatory processes. They have acted as court- or party-appointed experts for fact finding or legal analysis, testified as witnesses, participated as non-parties or amici curiae and even sometimes instituted cases or intervened as parties where procedural rules provide lus standi rights. Even when not formally involved, they have exerted informal influence in various ways. Practice varies within the different institutions and among the different bodies and substantive areas of international law. Access to such proceedings provides NGOs with opportunities to communicate legal arguments and to influence decision-makers’ rulings and interpretations of the law. In this way, NGOs can indirectly influence the development of international norms.”34

As evidenced, there is still an important and wide-role for NGOs in the OTP’s prosecution of SGBC. A variety of organizations, supported by the OTP and led by groups such as the ICC Coalition, can aid SGBC cases and foster mutually beneficial relationships with the Court.

IV. OTP Action and Fostering NGO Relationships

The OTP can take concrete steps to increase NGO participation in SGBC prosecutions at the ICC as well. As mentioned, outreach should be focused to local NGO’s who serve distinct populations and do not need to maintain neutrality or adopt policies of non-cooperation. As opposed to the ICRC, MSF, or Oxfam, small local groups may not be as likely to become targets of governments seeking retribution for ICC cooperation. The OTP can engage with local organizations that teach awareness about sexual violence and serve victims of sexual violence.

Confidentiality is crucial to any increased NGO participation. In particular, witness protection, witness security, and general confidentiality needs to be improved at the ICC so that groups will not suffer “outing” of their aid workers or clients upon providing testimony or evidence. The ICC must ensure that NGO work with the ICC remains confidential so as to avoid retribution, violence, or problems on ground for NGOs. The ICC’s policies regarding NGO partnership should be clear and set appropriate expectations. The ICC can look to past tribunals in which NGOs did provide testimony in order to model their interactions. Clear policies, increased confidentiality and better security will lead to stronger relationships with local groups, will show ICC accountability, and will foster trust amongst NGOs.

The ICC can also exploring anonymous reporting and evidence collection mechanisms, so that pressure is not placed on NGO personnel to testify in person or provide evidence directly. It may prove important to examine a way in which NGOs are assured that they will not be compelled to testify and can remain independent.35 Allowing discretion in the hands of NGOs may lead NGOs to consider more participation in a given situation.36 Prior to the establishment of the ICC, national sections of MSF did participate in providing testimony for judicial proceedings.37 But this changed with ICC; “In this context, MSF was obliged to reconsider the status of its testimony. Testimony was no longer a matter of free choice demonstrating the organisation’s independence with regard to the perpetrators of violence; rather, it became a legal obligation that undermined the independence of relief organisations and required them to submit to the requirements of the judicial process.”38

Recently, a group of NGOs and civil organizations in Africa called upon the OTP to continue investigations in the Congo.39 Including in their recommendations were improving the quality of investigations and clarifying relationships between the ICC and local intermediaries.40 While not speaking directly to the prosecution of SGBC, these suggestions are also relevant for engaging NGOs in SGBC prosecutions. The OTP must make SGBC prosecutions as strong as possible before asking for NGO’s testimony; any ongoing pattern of failed SGBC prosecutions when NGO’s take risks to provide evidence may cause future NGOs to be less willing to participate. Protection of NGOs aid workers and victims is crucial to NGO involvement in prosecuting SGBC. The ICC may need to provide additional procedures, guidelines, or resources in order for NGOs to protect themselves after ICC participation. Strengthening protection networks amongst states parties and increasing resources available to protect witnesses and evidence gatherers may be critical to NGO involvement.

The ICC generally can also look at how existing NGO programs do indeed support awareness of SGBC. For example, many organizations work to raise awareness of sexual violence. “A crucial element of any project providing health care to victims of sexual violence is ensuring that they know about the services available, and about the importance of seeking care and of doing so as quickly as possible. Talking to people door-to-door, using theatre, radio announcements, and billboard advertisements are among the tools that MSF uses to communicate about sexual violence and encourage victims to seek help.”41 These existing programs are helpful in creating cultural atmospheres where sexual violence is discussed, reported, and prosecuted.

V. Conclusion

The ICC’s further involvement with NGOs to prosecute sexual and gender based crimes needs to be strategic and well developed. Recognizing the real problems that exist when NGOs cooperate with the ICC, but also the invaluable evidence and information gained, the OTP should ensure it is fully capable of running thorough and confidential investigations in order to gain NGO trust. Additionally, the ICC should look at organizations with parallel mission or advocacy goals to the Court, who want to prosecute war criminals or advocate stability through judicial mechanisms. Relationships of trust can be fostered on the ground with NGOs of all sizes, and leveraging existing networks and coalitions’ relationships is the most effective way to promote cooperation with the ICC.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Office of the Prosecutor, International Criminal Court, Policy Paper on Sexual and Gender Based Crimes, ¶ 107 (Jun. 2014), [hereinafter SGBC Policy Paper], available online, archived. ↩

2. 2.

   Id. ¶ 98.

   (“The Office also recognizes the crucial role that civil society plays in preventing and addressing sexual and gender based crimes. International and local NGOs are often first-responders to incidents of sexual and gender-based violence, undertake documentation of such crimes and provide significant medical, psychosocial and material support to victims. The Office will seek to support and strengthen the cooperation with these organizations. The Office will also continue to actively work towards building a network with these organizations in order to enlist their assistance and support in efforts to reach out more to the victims.”) ↩

3. 3.

   Id. ↩

4. 4.

   International Criminal Court, Amnesty Int’l (Taiwan), available online (last visited Apr. 9, 2016).

   (“Amnesty International began campaigning for the establishment of International Criminal Court in 1993. The organization was very active in the drafting of the Rome Statute of the Court, which was adopted in July 1998, and other supplementary documents[.]”)

   See also International Criminal Court, ICRC (Oct. 29 2010), available online.

   (“The Statute of the International Criminal Court was adopted in Rome in July 1998, an event welcomed by the ICRC as an important step towards ensuring that war crimes, crimes against humanity and genocide would no longer go unpunished. … For the ICRC[,] the International Criminal Court (ICC) is a crucial mechanism for the strengthening of the fight to end impunity, and specifically the failure to punish grave breaches of international humanitarian law.”) ↩

5. 5.

   The International Criminal Court: How Nongovernmental Organizations Can Contribute To the Prosecution of War Criminals, HRW, 5 (Sep. 2004) [hereinafter How NGOs Can Contribute], available online.

   (“The jurisdiction of the Court explicitly names a number of sexual and gender-based crimes: rape; sexual slavery; enforced prostitution; forced pregnancy; enforced sterilization; and other forms of sexual violence, gender-based persecution and enslavement, including trafficking in women and girls. These crimes constitute crimes against humanity if they are carried out as part of a systematic or widespread attack on the civilian population. Acts of sexual violence can also be prosecuted as a war crime if they were committed in the context of, and associated with, an international or internal armed conflict.”) ↩

6. 6.

   Interview of Anne-Marie La Rosa, ICRC legal adviser, ICRC and ICC: two separate but complementary approaches to ensuring respect for international humanitarian law, ICRC (Mar. 3, 2009) [hereinafter ICRC and ICC], available online.

   (“The ICRC has a clear and long-established practice of not becoming involved in judicial proceedings and of not disclosing what it discovers during its work. This practice is grounded in extensive experience in the field and in the organization’s utmost respect for confidentiality. The ICRC does not hesitate to remind those involved in armed conflicts—be they governments or non-State armed groups—of their obligations under IHL. But as a neutral and independent organization, we strongly believe that we will only be able to do this by ensuring continuous and confidential dialogue with all parties to the conflict. Confidentiality does not mean silence or acquiescence. It means that we only share our information and findings on alleged violations of IHL with the party responsible. The information we collect is not and will not be shared with anyone else, including the ICC.”)

   See also Doctors Without Borders/Médecins Sans Frontières’ (MSF) position regarding the International Criminal Court’s prosecutor’s case against the President of Sudan, MSF (Jul. 29, 2008), available online.

   (“Let us clearly state that while respecting legal authorities and international treaties, and as such the competency and mandate of the ICC, MSF remains a field-based organization of medical professionals delivering health care and life saving relief to victims of conflicts, epidemics or disasters, and is independent from all structures or powers, be they political, religious, economic or judicial. Since the creation of the ICC, all MSF sections have adopted a binding internal policy refraining from any cooperation with the ICC. This policy is based on the recognition that humanitarian activities must remain independent from risk of political and judicial pressure in order to be able to give medical and relief assistance to populations in situations of trouble and violence.”) ↩

7. 7.

   Rome Conference, Coalition for the Int’l Crim. Ct., available online (last visited Apr. 9, 2016).

   (“The Coalition for the International Criminal Court actively participated in the Rome Conference—monitoring the negotiations, producing daily information for worldwide distribution and facilitating the participation and parallel activities of the more than 200 NGOs which attended. The CICC coordinated the input of civil society organizations through Issue Teams that closely followed discussions on particular provisions of the draft statute. Civil society is credited with some of the most important aspects of the Statute, such as its strong provisions for gender crimes and the independence of the prosecutor.”) ↩

8. 8.

   Michael J. Struett, The Politics of Constructing the International Criminal Court: NGOs, Discourse, and Agency, 86-87 (Palgrave Macmillan 2008). ↩

9. 9.

   Françoise Bouchet-Saulnier & Fabien Dubuet, Legal or Humanitarian Testimony? History of MSF’s Interactions with Investigations and Judicial Proceedings, MSF 32 (Apr. 2007), available online. ↩

10. 10.

    SGBC Policy Paper, supra note 1, at 32 n.66.

    (“For example, in the Charles Taylor case, the Trial Chamber of the Special Court for Sierra Leone relied heavily on contemporary documentary evidence contained in the reports of international organisations and NGOs on, and media coverage of, the crimes committed in Sierra Leone in finding beyond reasonable doubt that the former President of Liberia was aware of the crimes committed in Sierra Leone by the RUF/AFRC forces against civilians, including rape.”) ↩

11. 11.

    Andrea E. K. Thomas, Nongovernmental Organizations and the International Criminal Court: Implications of Hobbes’ Theories of Human Nature and the Development of Social Institutions for Their Evolving Relationship, 20 Emory Int’l L. Rev. 435, 436 (2006), available online. ↩

12. 12.

    ICRC and ICC, supra note 6.

    (“The ICRC enjoys immunity against giving testimony before criminal tribunals, so it cannot be compelled to testify. This was confirmed in 1999, in a decision by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Simić case. That decision was subsequently cited with approval by other international criminal tribunals, such as the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone. The ICC has gone further by recognizing expressly in its Rules of Procedure and Evidence (Rule 73) that information in the hands of the ICRC is not subject to disclosure, including by way of testimony.”) ↩

13. 13.

    Bouchet-Saulnier & Dubuet, supra note 9, at 33-34. ↩

14. 14.

    The Seven Fundamental Principles, Int’l Fed. of Red Cross and Red Crescent Soc., available online (last visited Apr. 9, 2016).

    (“Impartiality: It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavours to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress.
    
    Neutrality: In order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature.
    
    Independence: The Movement is independent. The National Societies, while auxiliaries in the humanitarian services of their governments and subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with the principles of the Movement.”) ↩

15. 15.

    Stephane Jeannet, Testimony of ICRC delegates before the International Criminal Court, ICRC (Dec. 31, 2000) available online.

    (“[I]n discharging its mandate, the ICRC obtains information on the basis of a relationship of confidence; the element of confidentiality is essential to the maintenance of the relationship between the ICRC and warring parties; it is universally accepted (in particular in the Geneva Conventions and their Additional Protocols) that it is in the international interest to foster this relationship; the disclosure of information, in breach of the ICRC’s confidentiality rule, would cause irreparable damage to the ability of the ICRC to perform the functions allotted to it and thus to the international public interest. The confidentiality rule is a working principle derived from the general practice of the ICRC and from international humanitarian law, and is accepted and expected by States and victims of armed conflict. It is the hallmark of the ICRC.”) ↩

16. 16.

    See e.g. The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-0/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (Pre-Trial Chamber II, Jun. 15, 2009), available online; Emily Backes, Landmark Trial on Rape as Weapon of War Opens at ICC, Enough Project (Nov. 23, 2010), available online; see also Médecins Sans Frontières, Sexual Violence, MSF, [hereinafter MSF Sexual Violence], available online (last visited Apr. 9, 2016).

    (“Sexual violence during war can have several objectives,” says Françoise Duroch, MSF’s expert on violence. “Rape can be used as a weapon, meaning it is carried out with martial reasoning and used for political ends. It can be used to reward soldiers, or remunerate them, to motivate the troops. It can also be used as a means of torture, sometimes to humiliate the men of a certain community. Systematic rape can be used to force a population to move. Rape can also be used as a biological weapon to deliberately transmit the AIDS virus. In war, we also find the phenomenon of sexual exploitation, forced prostitution, or even sexual slavery.”) ↩

17. 17.

    Médecins Sans Frontières, Mass rape expands range and depth of violence against villagers in DRC, MSF (Jul. 4, 2011), available online. ↩

18. 18.

    Françoise Duroch & Catrin Schulte-Hillen, Care for Victims of Sexual Violence, An Organization Pushed to its Limits: The Case of Médecins Sans Frontières, MSF (Apr. 15, 2015), available online; See also Médecins Sans Frontières, Sexual and Gender Based Violence, MSF, available online (last visited Apr. 9, 2016):

    (“Médecins Sans Frontières offers patients who have suffered sexual violence medical care, treatment to prevent the development of sexually transmitted infections, and psychological, social and legal support. In settings where the rate of sexual violence is high, such as in conflict zones or refugee camps, dedicated teams provide assistance, and staff work with the community to raise awareness of the problem of sexual violence, provide information about the care that MSF provides, and promote social and legal support.”) ↩

19. 19.

    MSF Sexual Violence, supra note 16. ↩

20. 20.

    Fabrice Weissman, Humanitarian aid and the International Criminal Court: Grounds for divorce, Afr. Arguments (Jul. 20, 2009), available online. ↩

21. 21.

    Jeannet, supra note 15. Discussing ICC Rule 73:

    (“The ICRC insisted on obtaining a very clear and absolute rule, because anything less, i.e. any uncertainty as to whether ICRC evidence may be used by the Court without the organization’s consent, would cast a shadow on the ability of the ICRC to establish or maintain a relationship of trust with the parties to armed conflicts and the victims of such situations. Such uncertainty may result in denial or restriction of ICRC access. The perception of the ICRC by its interlocutors is of crucial importance here.”) ↩

22. 22.

    Thomas, supra note 11.

    (“On November 28, 2004, the Sudanese government ordered Oxfam Great Britain and Save the Children UK to leave the Sudan. Both nongovernmental organizations (“NGOs”) were providing humanitarian assistance to the 1.7 million refugees who had fled their homes in the Darfur region. The Sudanese government objected to public statements the organizations had made, which it characterized as supportive of the rebels, asserting that the organizations should have raised their concerns privately with government officials. The expulsion orders serve as a reminder and a warning for other humanitarian organizations operating in the Sudan and around the world.”) ↩

23. 23.

    Paul Ronalds, The Change Imperative: Creating the Next Generation NGO, 93 (Kumarian Press, Jun. 2010). ↩

24. 24.

    Hauser Center, Humanitarian NGOs and the International Criminal Court, YouTube, available online.

    (“This six-minute micro-documentary explores the tensions between humanitarian NGOs, like CARE and Save the Children, and advocates for international justice. The president of Save the Children, Charles MacCormack, describes his organizations expulsion from Sudan by President Bashir after the International Criminal Court charged Bashir with crimes against humanity in March 2009. ICC Prosecutor Luis Moreno Ocampo argues that President Bashir expelled these groups, not because of any real cooperation between the NGOs and his office, but to pressure the international community. Ken Roth, president of Human Rights Watch, calls for a parallel partnership between humanitarian NGOs and the ICC, to prevent collaboration from compromising any group. Leading figures in both the justice and humanitarian movements debate whether dialogue is possible across these lines, raising both practical and ethical questions.”) ↩

25. 25.

    Thomas, supra note 11, at 435-36. ↩

26. 26.

    Office of the Prosecutor, International Criminal Court, Sixteenth Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593 (2005), p.5 at § 2.4 (Dec. 2012), available online, archived. ↩

27. 27.

    Democratic Republic of Congo: Sexual violence rife in Goma Camps, MSF (Jan. 17, 2013), available online. ↩

28. 28.

    Bouchet-Saulnier & Dubuet, supra note 9, at 40. ↩

29. 29.

    South Sudan: Insecurity in Leer has devastating consequences for those hiding in the bush, MSF (Feb. 11, 2014), available online. ↩

30. 30.

    Weissman, supra note 22. ↩

31. 31.

    How NGOs Can Contribute, supra note 5, at 14 (“Telling others about the Court; Providing Information to the Court; Serving as a link between the Court and victims and witnesses” among others.) ↩

32. 32.

    Id. at 14-15 (stating also that “The Prosecutor received six communications regarding the situation in Ituri, among them “two detailed reports from nongovernmental organizations.” Evidently, the reports from the NGOs prompted the Prosecutor to identify the situation in Ituri as “the most urgent situation to be followed.”); see also Fiona McKay et al., The Role of Human Rights NGOs in Relation to ICC Investigations, Hum. Rts. First (Sep. 2004), available online. ↩

33. 33.

    How NGOs Can Contribute, supra note 5, at 15.

    (“NGOs can send information on crimes regarding individual cases or patterns, providing as much detail as possible. In addition, NGO reports could explain the historical and political context of the crimes investigated, in order to provide the Prosecutor with a better understanding of the situation. By reporting on the capacity or will of a state to investigate or prosecute crimes, NGOs can also help the Prosecutor determine whether a case falls under the jurisdiction of the Court or should be left to the national courts. NGOs could also inform the Prosecutor about the practical feasibility of investigations.”) ↩

34. 34.

    Barbara K. Woodward, The Role of International NGOs: An Introduction, 19 Willamette J. Int’l L. & Disp. Resol. 203, 217-18 (2011). ↩

35. 35.

    Bouchet-Saulnier & Dubuet, supra note 9, at 13 (Stating that MSF’s co-cooperation policy for testimony at the ICTY reflected “MSF’s desire to preserve its freedom of action with respect to international legal proceedings” ↩

36. 36.

    Gabor Rona, The ICRC privilege not to testify: confidentiality in action, ICRC (Feb. 28, 2004), available online.

    (“[W]ould the ICRC be in a position to assure combatants of confidentiality if ultimate authority over its information is placed beyond its control? Clearly, the answer is no. The mere existence of judicial power to overrule ICRC confidentiality, or at the very least the first time that such power was used, would mean the end of the ICRC’s long-standing ability to give warring parties the assurances upon which ICRC access to the victims of armed conflict depends. Rather than asking it to “trust the Court,” the ICRC should be allowed the discretion to release evidence in exceptional cases in which it determines that any resulting risk to its operations is tolerable. This is the effect of the ICTY Decision, of ICC Rule 73 and of the ICRC’s headquarters agreements.
    
    In discussing the ICRC’s confidentiality interests with the outside world, it is important to point out that the ICRC’s lack of cooperation with criminal tribunals should not be viewed as hostility or indifference to their task. Insofar as the ICRC and the tribunals both have a common goal, namely to ensure respect for international humanitarian law, the ICRC enthusiastically supports the existence of mechanisms for the repression of criminal violations of humanitarian law. However, because the ICRC also has a mandate to assist and protect victims and therefore cannot forego/risk losing its access to them, its role should be seen as complementary, but not identical, to that of the tribunals.”) ↩

37. 37.

    Bouchet-Saulnier & Dubuet, supra note 9. ↩

38. 38.

    Id. at 6. ↩

39. 39.

    See Joint Declaration, 134 NGOs Call on ICC Prosecutor to Continue Investigations in Congo, HRW (Mar. 13, 2014) available online. ↩

40. 40.

    Id. ↩

41. 41.

    MSF Sexual Violence, supra note 16. ↩