19TH SESSION OF THE ASSEMBLY OF STATES PARTIES
The Hague, 14-16 December 2020
Report by: Tamia Brito, Research Associate, Alexandrah Bakker, Junior Research Associate, and Emma Bakkum, Assistant Counsel PILPG-NL
Highlights:
Due to COVID-19 restrictions, the 19th session of the Assembly of States Parties (ASP) takes place in two parts: from 14-16 December in The Hague and from 17-23 December a resumed session in New York (elections).
During the General Debate, States Parties addressed several key issues. Many welcomed the report of the Independent Expert Review, condemned US sanctions and other threats taken against the Court, and urged States Parties to provide the Court with the necessary resources to fulfill its mandate.
The ASP approved the Court’s 2021 programme budget, in line with the Committee on Budget and Finance (CBF)’s recommendations, of €144,673.9 million (a 0,7% decrease of the 2020 budget).
The ASP adopted six resolutions: on the proposed program budget for 2021; on cooperation; on the remuneration of judges; the Omnibus Resolution (adopting similar language as the previous year); on procedures for adoption of decisions by the ASP during the 19th session due to COVID-19; and on a possible second resumption of 19th session.
States Parties did not reach consensus on a resolution regarding the Review of the Court and the Rome Statute system, proposing a mechanism to report on the implementation of the IER’s recommendations, and informal consultations will continue during the resumed session.
The ASP adopted a resolution on a possible second resumption of the 19th session of the ASP, foreshadowing the postponement of the election of the Prosecutor to early 2021.
The OTP launched its 2020 Report on Preliminary Examination Activities, also noting that it will share a report in the first quarter of 2021 assessing the IER recommendations focused on the OTP.
Summary of the 19th ASP (The Hague)
Facing the challenges of a global pandemic, the Assembly of States Parties to the International Criminal Court convened for its 19th session (part 1) at the World Forum in The Hague, The Netherlands, combining a small in-person presence with a larger virtual audience. With only eight NGO representatives allowed to enter the World Forum, PILPG reported from the ASP with one delegate present in The Hague and a vast number of PILPG-ers worldwide following the ASP virtually.
With the resumed 19th session scheduled to start this week (17 December) at the UN headquarter in New York, US, this post provides an overview of what happened during the first part of the ASP in The Hague, from 14-16 December 2020.
Day 1 (14 December)
First Plenary Meeting
The President of the ASP, O-Gon Kwon, opened the first plenary meeting on Monday with a minute of silence or meditation in respect of victims worldwide. The meeting continued with a keynote address by the Minister of Foreign Affairs of the Netherlands, host of the Court, Stef Blok, who addressed the ASP through a pre-recorded video. Blok set the tone for the General Debate, as States Parties’ often covered the same key topics. Throughout his statement, Blok strongly condemned the “deeply disturbing” measures taken against the Court and its staff by the US government and called on the US President-Elect, Joe Biden, to revoke the sanctions. He further called upon States Parties to be firm with the Court and to allow for critical reflection. States should cooperate with the Court, he noted, as the “wheels of justice won’t grind if there is nobody to turn them.” Blok concluded by welcoming the IER Report and called for the ASP to swiftly implement its recommendations.
The keynote address was followed by the adoption of the agenda and statements from ICC staff, all nearing the end of their term. In his final opening address, O-Gon Kwon reflected on his time as ASP President, his first diplomatic and political position, and expressed his gratitude. He reflected on some of the challenges the Court has faced during his tenure, including a “very heavy agenda of important matters for the future of the Court and the Assembly”, and the additional challenges brought by a global pandemic. He reflected on Rome Statute’s universality, specifically in his region, the Asian Pacific region, and - while proud of welcoming Kiribati as a State Party - he expressed hope for more Asia Pacific states to join the Rome Statute in the near future. He concluded that “we have a collective obligation to future generations to care for the development of the international justice system.”
The ASP President welcomed statements of the President of the Court, the Prosecutor, the Registrar, and Chair of the Trust Fund for Victims. ICC President Chile Eboe-Osuji addressed the Assembly through a pre-recorded video, expressing his gratitude to those who have supported and encouraged him and highlighting achievements during his term as ICC President.
ICC Prosecutor Fatou Bensouda addressed challenges faced by the Court this year, describing the year as one of “resilience and commitment in the face of great adversity.” Besides the COVID-19 global health crisis, she noted the Court was subjected to “unprecedented and wholly unacceptable threats, attacks and sanctions in the past year,” and expressed hope that the US “reverses its aggressive policy of antagonism towards the Court.” While dealing with these adversities, the Court has had an extremely active and busy year, with the IER process as well as core mandate functions, with seven cases in different stages of the proceedings and several successes (transfer to the court of Mr. Abd-Al-Rahnan and Mr. Gicheru, ongoing preparations for trial in the Yakatom and Ngaïssona case, start of trial in the Al Hassan case, and nearing conclusion in the Ongwen case). In her final address to the ASP, Bensouda stressed to her successor and those electing her/him that “assuming office as Prosecutor means an unyielding devotion to the pursuit of international criminal justice, without fear or favour, even in the face of adversity, and a commitment to honourably and with integrity discharge a complex multi-faceted mandate, one that is largely without precedent with investigations and preliminary examinations covering situations spanning the globe.” Bensouda, further forewarning her successor, referred to two of the most significant challenges of the OTP: “While one important challenge has been the political environment and other external conditions in which the Office operates, another great challenge might well be the incompatibility of the mandate with the resources allocated to it.” She highlighted her commitment to hand over an office that is accountable at all levels, both in terms of performance and professional conduct. Reflecting on the IER, she underscored that the OTP is making an inventory of priority recommendations that can be implemented in the short and long term, and identifying those that will not affect efficiency or effectiveness. Bensouda announced that a full report on this will be issued in the first quarter of 2021. Finally, she concluded by expressing pride in the OTP always paying homage to the Rome Statute and its goals, without fear or favour.
ICC Registrar Peter Lewis, through his statement, paid most attention to the challenges of the COVID-19 pandemic and the ways in which the Court continued its work throughout 2020. He then touched upon the second and “more profound challenge” of US Executive Order 13928. He further underscored the challenge the Court faces with its fragile liquidity situation due to an unprecedented level of states in arrears. Lewis thanked states who paid their contributions in advance and encouraged others to comply with their outstanding commitments. Finally, he referred to the IER report, noting the important step the Court has taken in recruiting a Focal Point for Gender. In the months ahead, the Court will also issue stronger policies on harassment and the disciplinary process.
Mama Koité Doumbia introduced the Trust Fund for Victims’ (TFV) report, touching upon the legacy of former Board Chair, Felipe Michelini, who passed away this year. She expressed that the TFV is profoundly committed to collaborate with the Court, States Parties, as well as victims who are at the core of the functionality of the ICC and the Rome Statute system. She further spoke about two main aspects of the work of the TFV, impact and performance, noting that the TFV extended its work to seven countries this year.
Second Plenary Meeting
The second plenary meeting saw the General Debate, with 27 States Parties addressing the Assembly in-person or through a written statement or prerecorded video message, due to the constraints brought by COVID-19. The General Debate started with an in-person statement from Mr. Taylor Lubanga, on behalf of the President of the Democratic Republic of the Congo, Mr. Félix Tshisekedi. In his statement, President Tshisekedi shared the honor it was for him to address the ASP, highlighted the DRC’s efforts in the fight against impunity for the most heinous crimes, and underlined the disastrous consequences those crimes can bring. He expressed that the ICC requires commitment and cooperation to succeed, and he called for all states to continue their contribution to those endeavors.
Following the DRC, 26 States Parties delivered statements, including France, Austria, Sweden, Georgia, Costa Rica, Spain, Nigeria, Estonia, Liechtenstein, Sierra Leone, United Kingdom, Finland, Denmark, Belgium, Trinidad & Tobago, Portugal, Norway, Cyprus, Luxembourg, Italy, Slovenia, Czech Republic, Switzerland, El Salvador, Germany, and Palestine. Several other states submitted written statements, found on the ASP website.
States Parties used the General Debate to address several key issues, present throughout the statements, including the Independent Expert Review, elections of the Prosecutor and six judges, external threats to the Court, the Court’s budget, and the Trust Fund for Victims. Almost all states referred to the efforts put forward by the ICC and its remarkable achievements, especially by continuing its work uninterrupted despite the challenges brought by COVID-19. They expressly defended the universality of the Rome Statute and noted States Parties should cooperate with the Court to maintain its strength as a unique international institution.
The majority of states commended the work of the Independent Expert Review for the ICC and the Rome Statute System and encouraged the ICC to find means and mechanisms to adopt the recommendations promptly. Nigeria issued a critical view, noting that the report should not be based on “unverified rumors or inaccuracies,” yet applauding the efforts nonetheless and underlining the need to strengthen the ICC for the sake of international justice.
Most states took note of the external challenges that the ICC and the Rome Statute System face and expressed their disapproval. Several, including France and Switzerland, condemned the US economic sanctions imposed on the Court’s Chief Prosecutor and the head of the ICC’s jurisdiction division, calling for immediate revocation or withdrawal.
States universally highlighted the importance of the ongoing renewal process of the judiciary and the OTP. They called for each member to maintain the highest standards for the upcoming elections, carefully reflecting on motives, experience, and expertise when selecting the future judges and the Prosecutor. Many highlighted the need for fair and transparent elections and various states, such as Sierra Leone, Georgia, Costa Rica, El Salvador, and the United Kingdom, took the opportunity to present their respective nominees, inviting other states to endorse them during the election.
Sweden, Sierra Leone, Estonia, Italy, Trinidad & Tobago, Belgium, Finland, and the Czech Republic, among others, were vocal about the role of victims at all stages of the work of the Court and the Trust Fund for Victims. They individually reminded the ASP that victims are at the core of the ICC’s mandate and efforts. Thus, they called for all states, both members and non-members, to contribute to the TFV as it implements reparations in the Katanga, Ntaganda, and Al Mahdi cases.
Day 2 (15 December)
Closed Meetings and Third Plenary Meeting
Day two saw a few closed meetings, with States Parties convening in the Working Group on the Budget and for informal consultations on the resolution on the Review of the Court and Rome Statute System. The brief third plenary meeting included updates from coordinators and facilitators of the working groups on draft resolutions as well as a report from the Credentials Committee.
OTP’s Launch of its 2020 PE report
The Office of the Prosecutor (OTP) hosted its annual side event to launch the OTP’s 2020 Preliminary Examination Activities report. The 2020 report includes information on the OTP’s activities in preliminary examinations over the past year. In 2020, the OTP concluded four preliminary examinations, in the situations in Palestine, Iraq/UK, Nigeria, and Ukraine. Read a report on the OTP’s launch event by PILPG Research Associate Raghavi Viswanath here.
Day 3 (16 December)
Fourth Plenary Meeting
After the introduction of draft resolutions a day earlier and further informal consultations, the ASP considered the adoption of resolutions on its final day in The Hague. States Parties adopted six resolutions by consensus (to be published on the ASPs website soon):
The resolution on the proposed program budget for 2021;
The resolution on cooperation;
The resolution on the remuneration of judges;
The Omnibus Resolution (adopting similar language as the previous year);
The resolution on procedures for adoption of decisions by the ASP during the 19th session due to COVID-19;
The resolution on a possible second resumption of the 19th session of the ASP. This resolution seeks to address the (likely) possibility that the Assembly will not be able to conclude the election of a Prosecutor and six judges during the resumed session in NY. In this case, the resolution provides that the bureau considers practicalities of a second resumption in NY as soon as possible in the first months of 2021.
Notably, the draft resolution on the Review of the Court and the Rome Statute System did not reach consensus in the Hague Working Group (HWG) leading up to and during the ASP. It seems negotiations on a mechanism to report on the implementation of the IER recommendations has reached a dead end. Mr. Jens-Otto Horslund, Vice President of the ASP, reported that States Parties will continue informal consultations at the resumed ASP session in NY.
Budget
The ASP considered and adopted the Court’s proposed programme budget for 2021. States approved a budget of €144,673.9 million, representing a 0.7% decrease compared to the 2020 approved budget (excluding the host state loan). The approved 2021 budget is in line with recommendations of the CBF, while the Court itself proposed a budget of €144,917.2 million. Belgium delivered a statement after the adoption of the resolution (on behalf of Argentina, Austria, Belgium, Costa Rica, Finland, Ireland, Liechtenstein, Luxembourg, Mongolia, Netherlands, Norway, Slovenia, South Africa, Sweden, and Switzerland), calling on States Parties to provide the Court with a budget that is in line with its needs to implement its mandate. Belgium acknowledged that this year’s budget negotiations had been easier than in previous years, as there was only a small difference between the Court’s budget and CBF’s budget proposal. However, Belgium noted great concern regarding the Court’s liquidity and the number of states in arrears.
CICC Statement
President O-Kon Gwon gave the floor to Elizabeth Evenson (Human Rights Watch) on behalf of the Coalition for the International Criminal Court (CICC) to provide a statement to the Assembly. CICC focused on five issues and urged for 1) proactive, fair, informed, and transparent elections; 2) adequate resources for the Court; 3) a timely assessment of IER recommendations that is inclusive of victims and civil society; 4) States Parties to be vigilant to protect the Court’s mandate from attacks and interference; 5) to support, defend, and protect human rights defenders.
Resumed 19th Session in New York
The resumed 19th session will continue this week (17-23 December) in New York, the weather allowing. With President O-Kon Gwon not able to attend, Vice President Mlynár (Slovakia) will preside over the resumed session.
On the agenda are the elections of six members of the CBF; the election of the ASP President, two Vice Presidents, and 18 members of the Bureau; as well as the election of six judges. The election of the Prosecutor appears to have been postponed to early 202 already. Interesting to follow will also be the continued informal consultations on the IER resolution, which did not reach consensus during the first three days of the ASP.