Overview by Phedra Neel, Research Associate PILPG NL
States Parties remained to disagree on Brazil’s proposed text on equitable geographical representation within the Bureau.
Discussion on the duration and date of the next ASP continued.
The session ran longer in order to attain a request for an amendment on a paragraph that was already agreed upon in previous sessions.
The consultations on the Omnibus Resolution reconvened on the fifth day of the ASP to finalize the discussions on the omnibus resolution by building onto revisions proposed during previous sessions.
The first paragraph addressed was the new operational paragraph, which faced issues with its wording. Austria, Chile, Argentina and Greece supported the new operative clause. Korea on the other hand showed concerned with the formulation of this clause and additionally with the structure of the draft resolution, requesting a separate heading. Austria suggested that this can be solved by leaving enough space between this clause and the operative clauses. This clause was eventually agreed upon.
Paragraphs 9bis to 9quater were next. There was an alternative pending for these paragraphs existing of OP139 as proposed by Liechtenstein. As a reaction to previous concerns that OP9bis, ter and quarter were repetitive, France proposed an alternative OP that contained all three. However, many states (such as Kenya, Chile, Greece, Argentina, Austria, Sweden) felt like this was still too lengthy and unnecessary and thus preferred to support the proposal from Liechtenstein as this proposal referred to rule 42 of the Rules of Procedures and Evidence rather than reiterating selected sentences from it. The facilitator received a proposed consensus that will be discussed during the next session.
Following was the adaption of OP12bis and ter as there was no objection to the current form of the revised OP’s, including OP12 quarter to nonies. The substance of these articles was already agreed upon, but the level of appreciation was debated. Ecuador announced that they worked together with Mexico and came to the consensus to use the word ‘welcome’ for these specific OPs and all the other OPs in this section. This was approved by the entire session and thus agreed ad ref. OP18 and 20 were also agreed ad ref without any debate.
Next was OP71bis and 71ter, with regard to which Uganda suggested that the language was not specific enough and questioned why the text no longer mentioned that the oversight of the Bureau will take place on an annual or continuously basis. However, Uganda did not oppose the adoption of this OP and it was thus adopted ad ref.
The most debated OP was OP91bis on the equitable geographic representation within the Bureau as proposed by Brazil. Brazil explained that the number of States Parties have increased significantly over the years but that this is not reflected in the representation of the Bureau and that the time is ripe to address this issue. Brazil was supported by the Latin American states who spoke during this session (the facilitator had to close the floor as too many states wanted to express their opinion.) Many of the European countries such as Slovakia, Bulgaria, Hungary, Czech Republic, Poland, Serbia stated that the time was not ripe, that the Court was facing way more pressing issues such as dealing with universality, legitimacy issue, and the elections of a new prosecutor. Austria called for all states to come together in unity rather than to be divided on this issue and said that in principle they support Brazil’s proposal but that they are flexible in time. Lastly, Brazil clarified that including this OP only serves to open debate and asked if the timing is not right now, then when is it? Even after the informal consultations during the break, a consensus was not reached.
Subsequently, OP91ter was discussed again in relation to OP91ter alt on the duration of the ASP. Belgium expressed its concerns that reducing the ASP to five working days would negatively affect the possibility for the ASP to take decisions which would result in very general consensus seeking processes and thus hinder progressive development. There might also not be enough time to engage with civil societies, observer states, and with the court itself. The other states expressed different concerns: Argentina and Chile expressed concern with the reference to ‘subsidiary bodies’; the Netherlands and Portugal preferred the French alternative to give the Bureau the chance to make a decision on the matter and to not prejudge it already. Slovenia combined all the grievances saying that the other events surrounding the ASP are important with regards to its efficiency, that there is no need to already include ‘subsidiary organs’ and that the outcome needs not to be prejudged. To conclude, there was a lot of support for the amended French proposal. After the break, Brazil announced that together with the French and German delegation an agreement was reached that will be send to the facilitator.
The next OP on the list was OP 123quater. However, the delegation of the Republic of Korea wanted to reopen the debate on OP104 and proposed a few minor changes in wording. Although this OP104 was already agreed upon in earlier sessions, the issues was addressed. After giving all states the chance to read the amendments, it was agreed, by voice of Austria, that the first two of the three proposed amendments would be accepted.
Following, OP123quater in relation to the proposal of a mandate under §15 (15b) was discussed. Chile welcomed the great improvement in language but still suggested a few changes. Kenya explained that changes in language were needed. For instance, they suggested to have the words ‘any impact’ removed as they stated that an investigation always has an impact. The UK informed that progress was made during the break and that a final proposal will be communicated in due time.
To conclude, Mandate section number 7 was agreed ad ref without any debate. Mandate section number 19b (on the dates of the next ASP) is still open as the World Forum is already booked in December and the proposed dates in November overlap with a UN meeting. Austria asked the Secretariat to book the World Forum earlier on next times.