Overview by David Lando, Research Associate PILPG-NL
Paul Williams, Chair Panelist, Director and co-founder of Public International Law and Policy Group (PILPG)
Marieke de Hoon, Director of PILPG Netherlands, VU Amsterdam
Adewale E. Iyanda, African Union Representative
Hans Bevers, Office of the Prosecutor ICC
Alpha Sesay, Open Society Justice Initiative
Mark Kersten, University of Toronto
Hans Bevers assessed that the ICC faces the challenges of a court that “functions in a politically charged environment.” He also echoed the assertion made during this Assembly, that “the Court is not a panacea for ending impunity. But it is open for cooperation with national and regional institutions.”
Adewale E. Iyanda: “the AU plays a critical role. What the AU does is that it provides a platform for African States to bear on international justice, and the Rome Statute.” Therefore, it is vital to maintain and improve cooperation between the ICC and the AU.
Marieke de Hoon: “the establishment of the ICC is nothing but revolutionary”. Yet, “the Court cannot be perfect. Addressing mass violence is very complex. The way to do this is inevitably contentious.” She also noted that “the critique from Africa is not only an African critique, but it is the critique of all of us” and that it offers the opportunity for constructive dialogue.
Alpha Sesay argued that in order to strengthen the legitimacy of the Court there is a need to see things through the eyes of victims, and to strengthen the trust of victims in the Court.
Judge Ba noted that there is a need to establish whether the targeting of African States by the OTP is merely a matter of perception or “voluntary targeting.”
In response to Judge Ba, Marieke de Hoon argued that even if we understand these allegations as mere perceptions, it is still vital to address these issues, as they have real consequences.
Mark Kersten: “if we want to stop the withdrawal of South Africa from the ICC we should not be in dialogue, but in negotiations.” Kersten suggested three potential measures that could improve relations between member states and the Court: (1) “there has to be a clarification from the Court on their position on immunity;” (2) an offer for a conference of the ICC that will be conducted in South Africa should be on the table; (3) “the ASP, in unison, should refer the situation of immunities of heads of State to the ICJ.”
This side event sought to generate knowledge about the underlying causes for some of the critiques of the Court, mainly the so-called African critique. The panel members also discussed ways to strengthen the legitimacy of the Court. That is, how to move forward from said critiques, and to improve the function of the Court. The chair panelist, Paul Williams, co-founder and director of PILPG, started the event by introducing the panel members, and noting the overall structure of the event, and order of speakers.
First to speak was Hans Bevers, from the Office of the Prosecutor. He noted that a “permanent Criminal Court was a huge step forward.” On the working process of the Office of the Prosecutor he argued that “it follows in an impartial way the rules of the law.” However, he did recognize the challenges that the Court is facing. He asserted that the ICC “functions in a politically charged environment” and that the ICC has to maneuver its way within this environment. To counter this, the OTP has to operate in a transparent way. Therefore, “the OTP documents are a practice of transparency and I dare to submit that no other body of the Court has ever been so openly scrutinized more than the OTP.” The reports of the OTP are “a testimony for this statement.” On the future of the ICC, Mr. Bevers asserted that it is important to remember that “the Court is not a panacea for ending impunity. But it is open for cooperation with national and regional institutions.” This is “the way forward for the ICC’s cooperation with international organizations, regional organizations, civil society, and domestic efforts.”
Adewale E. Iyanda (African Union Representative) assessed that we are “at a critical juncture in the relationship between the African Union and the ICC.” The only solution for the current issues is “dialogue and engagement.” Dialogue is especially urgent because of the importance of the African States to the Court. In this context, the African Union has a large part to play: “The AU plays a critical role. What the AU does is that it provides a platform for African States to bear on international justice, and the Rome Statute.” Therefore, it is vital to maintain and improve cooperation between the ICC and the AU.
Next to take the floor was Marieke de Hoon, Director of the PILPG Netherlands office. She started by saying that while as an academic she “writes critical pieces on the Court,” this criticism is not against the Court, but it aims at strengthening the ICC. As such, critique of the Court can, and should be, constructive. Ms. De Hoon continued: “the establishment of the ICC is nothing but revolutionary”. Yet, “the Court cannot be perfect. Addressing mass violence is very complex. The way to do this is inevitably contentious.” The way to move forward is to utilize platforms for dialogue. Therefore, we should not only understand the ASP “as merely a management space. This is a place for engagement.” In order to move forward, it is essential to understand “the African critique.” On this, de Hoon noted that “we call it African critique because it comes from African States. But the critique from Africa is not only an African critique, but it is the critique of all of us.” On this, Amady Ba, an ICC judge, noted with approval: “exactly!”
Alpha Sesay, from the Open Society Justice Initiative, diverted the focus of the debate from the ICC to the victims of international crimes. He recalled that at a previous side-event, the representatives of the ICC were asked: “what do the victims of crimes think about you?” This, he asserted, manifests the future course the ICC should take: “for me when we talk about the future of the ICC, I think I have to bring the views of the victims in front of you. Did the Court lose its credibility before the victims? What victims think about the Court has to be a part of our response to the issues before the Court.” Moreover, there needs to be “serious investment in relationship building,” and “significant investment in building national capacities.” Following Ms. De Hoon’s point, he asserted that it is vital to respond to African States’ critique because similar issues are bound to arise in other regions in the future as well. However, “we should be discussing not only the things we disagree on but also on what we agree on. We all agree that there are victims of atrocities, and that they deserve justice, and that there should be mechanisms to hold those that commit crimes to justice.” These shared notions should be a basis for future discussions about the role of the ICC.
Last to speak was Mark Kersten from the University of Toronto and the author of the book Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace. He noted that he agrees “on the importance of dialogue” and that it is, in fact, “the theme of the ASP.” However, there are cases that are beyond the point of dialogue. According to Mr. Kersten, “if we want to stop the withdrawal of South Africa from the ICC we should not be in dialogue but in negotiations, bargaining, and conflict management.” He further noted that since the withdrawal of South Africa from the Rome Statute did not go through the Parliament, the decision could be reversed. However, it is important to understand that “when you ask South Africa to withdraw its withdrawal it is to ask them to flip-flop. This is something that States never like to do.”
Mark Kersten assessed that “if we want to stop the withdrawal of South Africa from the ICC, we should not be in dialogue, but in negotiations.” Kersten suggested three potential measures that could improve the relationship between state members and the Court: (1) “there has to be a clarification from the Court on their position on immunity;” (2) an offer for a conference of the ICC that will be conducted in South Africa should be on the table; (3) “the ASP, in unison, should refer the situation of immunities of heads of State to the ICJ. That will take six years, but we don’t have time. Therefore, the Court should not refer situations that include heads of State to the UN until then.”
Paul Williams then opened the floor for discussion. The first question was from the ICC Judge, Amady Ba. He raised several issues:
• Is the perception that the Court is targeting Africa a mere perception, or a “voluntary targeting?”
• The self-referral of African States is also a matter of national judicial capacities, as it is largely impossible to prosecute people in power in many African States. On this, he noted, “do you think The Netherlands would refer a case to the ICC? Or will France do so?” He also suggested that “we need to work on African national courts.”
• When talking about an African critique, it is essential to understand that there are differences between various African States. Moreover, there is “an Africa of the victims, and an Africa of the warring people.”
• Judge Ba expressed his dissatisfaction with “European academia” which manifests double-standards in its research by requesting African States to “put justice before peace”, while the same expectation does not extend to States outside Africa like Colombia and Afghanistan.
On the question of peace and justice, Mr Kersten noted that achieving peace and justice together is essential and that in practical terms, “it is difficult to negotiate peace with a rebel group when there are arrest warrants against them.”
Mr. Sesay noted that justice is not always the prerequisite for peace. For instance, in his homeland, Sierra Leone, “we spoke about having truth, justice, and reconciliation committees, but there were pressures to erase the word justice from it. So, what we had were truth and reconciliation committees.” This was successful, and peace was achieved. Therefore, justice and peace, according to Mr. Sesay, should not always be tied together when peace is promoted.
In response to Judge Ba’s, Mr. Sesay noted that the development of domestic legal capacities is an important issue. He argued that NGOs and civil society members should be able to play a larger role in the development of these capacities. The exclusion of NGOs is most observable in the African Union and, “when the AU determines its engagement going forward with the ICC, there has to be a major discussion about NGO engagement with the AU. There should be a room for more actors, there is always an excuse why NGOs can’t attend.”
Marieke de Hoon took on the question of the perception of African States that they are being targeted by the ICC. She argued that it is crucial to “understand the difference between targeting and the perception of targeting.” However, “we need to realize that perceptions are real too, and they lead to real consequences. Reaching a conclusion that they are perceptions doesn’t mean that they are not to be discussed.” Mr. Kersten agreed with Ms. De Hoon, and argued that “perceptions are important. When we have a debate at home and someone says he’s hurt, we don’t say ‘that’s not reality’.”
Other comments were then received by the panel. A member of the audience asked Mr. Iyanda: “how do you want the ICC to engage with the AU?” Another member of the audience asked Mr. Bevers: “You say that the selection of cases is purely legal. But, isn’t it also a budget decision? Because when a State is not cooperating that costs more money, and therefore the OTP may not be able to investigate.”
Mr. Bevers responded to the question of the selectivity of cases by the OTP. He noted that this true, and that the OTP must be selective in its cases. “It would be unreasonable if we would spend our capacity on things that would not lead to results.” Therefore, “you could argue that there are political influences on our decisions. You could say this is inevitable as we engage with political actors. This is simply part of our reality. I don’t think there is necessarily anything bad about it. It is a part of the world.”
On the question regarding the engagement of the ICC with the AU, Mr. Iyanda advocated the establishment of pragmatic framework that will facilitate cooperation. For instance: “every year, we have a management workshop with the AU and the ICC. We need this to come to the political level. We need to engage with politicians. Until we do this we can’t get anywhere.”
In conclusion, the development of pragmatic frameworks that will facilitate cooperation between African States and the ICC were seen as crucial by the panel. Moreover, the need for a complex dialogue regarding the African critique of the Court is essential. In such dialogue, the African critique should be understood as a critique posed by the entirety of the States Parties, as solving the issues involved are important for all member states. Furthermore, understanding the critique through the eyes of the victims, and building trust between the ICC and victims is of utmost importance to be able to move forward and strengthen the legitimacy of the Court.