Overview by Georgios Plevris, Research Associate PILPG-NL
Highlights:
France and Germany’s proposal was to alter the Provisional Amendment as put forth by the ICC judges in order to address legitimacy concerns and strike a middle ground. To this, their proposal recommends the setting of one-judge court at the pre-trial chamber only.
Other states marked their disagreement with the Frances and Germany’s joint proposal, supporting the provisional amendment by the ICC judges.
Kenya asked from the Working Group and the ASP to request the judges to embargo the Provisional Amendment on Rule 165, or apply a moratorium in its use and application.
The majority of the States Parties argued that the Provisional Amendments are in accordance with the Rome Statute, and in fact are an example of the Court responding to ASP requests for improvement in rules on judicial proceedings.
In its late session, after the 6th plenary of the 15th ASP, the Working Group on Amendments opened the debate on the Provisional Amendment to the Rule 165 of the Rules and Procedures and Evidence (RPE). The Rule 165 of RPE relates to the procedures for Article 70 offences against the administration of justice. In February 2016, in the context of the proceedings in Bemba et al., ICC judges provisionally amended the rule, in accordance with Article 51(3) of the Rome Statute. Under the proposed amendment, the number of judges needed at pre-trial and trial stage was reduced from three to one, and the number of judges needed at the appeal stage was reduced from five to three.
France and Germany restated their common proposal submitted before the Working Group, as a compromise between the concerns raised by Kenya and the arguments put forth by ICC judges. France and Germany’s proposal aims not at rejecting the Provisional Amendment as put forth by the ICC judges, but altering them to address legitimacy concerns and strike a middle ground. To this, their proposal recommends the setting of one-judge court at the pre-trial chamber only. Lastly, both countries recommended that the Working Group continue to discuss the matter, and that judges refrain from applying the rule till the ASP has made its decision
In particular, Kenya characterized this action by the judges as a procedural misstep, underlying that at the current moment Kenya is not ready to join any compromising position: “The hurdles that need to be jumped are too many and too high for Kenya at this moment” noted the Kenya Delegation. They proposed three main actions, including the Working Group on Amendments to remain seized of this matter, while consultations to commence at the earliest possible, preferably in New York. Additionally, Kenya asked from the Working Group and the ASP to request the judges to embargo the Provisional Amendment on Rule 165, or apply a moratorium in its use and application.
In contrast, Belgium, Australia, Netherlands, Switzerland, Argentina, Liechtenstein, UK and Chile all marked their disagreement with the Frances and Germany’s joint proposal, supporting the provisional amendment by the ICC judges. Australia found the joint Franco-German proposal to strip the substance of the Amendment aimed at increasing the efficiency of the Court. The majority of the States Parties argued that the Provisional Amendments are in accordance with the Rome Statute, and in fact are an example of the Court responding to ASP requests for improvement in rules on judicial proceedings. Liechtenstein reasoned that the interpretation of RPE is a matter of the Court and not of the ASP, while Chile underlined how the entire ICC judicial body stands behind these Amendments, which should be kept in mind during ASP discussions. Finally, the majority of States Parties called for the 15th Session of ASP to take a decision on the Amendments, but lacking such a decision, Rule 165 should apply.