Overview by Phedra Neel, Research Associate PILPG NL
Highlights were the speeches of the ASP President, judge O-Gon Kwon, the ICC president judge Chile Eboe-Osuji, Chief Prosecutor Fatou Bensouda, and Chair of the Board of Directors of the TFV, Motoo Noguchi.
The Chief Prosecutor Fatou Bensouda announced to publish her preliminary examinations report for 2018 later this day.
Ambassador Jens-Otto Horslund from Denmark is elected as new ASP Vice-President and the states parties elected eight members to the Advisory Committee on Nominations and five members to the Board of the TFV.
After a moment of silence in remembrance of Kofi Annan, the President of the Assembly of States Parties, judge O-Gon Kwon of South Korea opened the 17thASP with a speech that expressed hope in the many achievements in the fight against impunity but also underlined the challenges the Court faces. His speech set the tone and touched upon topics that would be repeated by the other speeches. The main focus was the challenges the Court is facing today while reiterating that the fight against impunity must continue as it is the last beacon of hope for the victims of mass atrocity. In order to do so, according to the president, non-State Parties must be urged to ratify the Rome Statute and be supported in implementing the right legislation to prosecute on a domestic level. Only in this way can the principle of complementarity be upheld and the universality of the Rome Statute promoted.
President O-Gon Kwon continued by stating that there have been many successes in the fight against impunity. But he also referred to the challenges that must be faced together. In this light, he stated that it is unfortunate that major states have not yet ratified the Rome Statute, leaving some regions underrepresented. The president has made universality of the Statute one of the main priorities of his presidency and asked all present to help achieve this cause. The recent withdrawals are most unfortunate as they send a wrong signal. It is therefore important to keep underlying the importance of a ratification and the advantages ratification can have for states. Becoming a State Party sends a strong signal to the world and to the victims of mass atrocities. It must be explained that such a ratification is not a danger for that state’s sovereignty thanks to the principle of complementarity.
The president continued by underlining that the principle of complementarity lies at the heart of the jurisdiction of the ICC, yet he noted that only half of all States Parties have the necessary legislation in place to carry out the primary responsibility to investigate and prosecute international crimes. Therefore it remains important to support these states in adopting such legislation.
While thanking all those who helped and raised awareness that fully cooperating with the ICC entails more than gathering evidence, arresting and extraditing accused, ASP president O-Gon Kwon stressed the need for better cooperation between the States Parties and the ICC. He stated that due to the inaction of certain states, ICC indictees remain at large. Not abiding the legal obligation to cooperate with the Court can affect the possibility for the Court to effectively execute its mandate and will turn decisions of the Court empty words. Moving on, the president underlined the role of the Trust Fund for Victims and the importance to give victims a voice.
After encouraging introspection, review, and reflection and underlining the need for diplomatic, political, and financial assistance (“The time to act is now”), the President adopted the agenda for the 17thASP.
His speech was followed by the president of the ICC, judge Chile Eboe-Osuji of Nigeria. After his words of thanks (in French), Mr. Eboe-Osuji referred to a speech made by the Nigerian President earlier this year in which he declared and pledged that: “In this dangerous world, the ICC is an institution needed in a way that could not have been foreseen by its founders. I will ensure that the next elections in Nigeria will be of a peaceful nature.”
Noteworthy is that Mr. Eboe-Osuiji welcomed criticism of the Court. He stated that we should not demonize those critiquing the Court as these voices force us to reflect on what we can do to make life more just. However, the ICC was founded to be a court of law, meaning that its judgements may be inconvenient. A court of law is ordered to check and balance the state power and a good judge will sometimes render inconvenient judgements, as was shown in the Bemba acquittal. It is not up to the ICC to convict someone simply because he has been found guilty by the public opinion; it is up to the Court to establish a fair process in which the accused has a fair chance to be acquitted. The ICC president therefore urged all present to not raise expectations in the minds of victims simply because the “perpetrator has to be punished for such bad crimes.”
The ICC president furthermore focused on the principle of equality of arms between the prosecution and defense and how the integration of the Office of the Prosecutor as an organ of the Court contributes to that. Lastly, he focused on resources, expressing that money reserved for justice is but a small investment in the greater scheme and a lucrative investment. After stating that the Trust Fund for Victims is in an everlasting need for more recourses, the ICC president announced that he will make a personal contribution to the Fund.
Thirdly, ICC Prosecutor Fatou Bensouda’s speech did not contain any real surprises. Bensouda explained that there have been both successes and obstacles along the path, but that the Office of the Prosecutor remains ever so faithful to the mission and putting the victims in the center of their actions. Bensouda then talked about the Preliminary Examinations and mentioned that the OTP will publish its preliminary examination report for 2018 later today, followed by a launch during a side event on Monday 10 December. She furthermore stressed that it needs courage and sacrifices from millions to adopt a multinational document, but these efforts are lost when we remain inactive and silent. Finally, she underlined the need for arrest warrants to be executed. “Working to achieve a system of accountability is not a sprint, it is a marathon!”, she added.
Lastly, Mr. Motoo Noguchi, departing Board Chair of the Trust Fund for Victims, focused on the functions and aim of the Trust Fund, reiterating the importance of its assistance mandate, of which new programs are in the developmental stage. Even though the numbers of donors have increased, the Trust Fund’s workload has increased to the extent that they are no longer able to guarantee reparations for all victims and the demand will only keep increasing. In this context, he reiterated how the Board feels a moral obligation to make reparative justice a reality for victims. The Fund however is facing two challenges: implementation capacity and financial resources. Noguchi underlined the need to make reparations proceedings simple, fast, and cost effective in order to provide meaningful redress for victims. The effectiveness of the reparation proceedings will likely affect the receiving of donations. He finally stated that a sound balance between the legal and technical precision and the reality of victims in the most dire situations in the field must be sought.
Further items on the agenda for the first plenary meeting included the election of a Vice-President since Momar Diop (Senegal) resigned effective of 19 March 2018 (the new VP is Ambassador Jens-Otto Horslund from Denmark) and of a Bureau member (Bangladesh), States in arrears (13 as of Jan. 1, 2019), Credentials of representatives of States at the seventeenth session: (a) Appointment of the Credentials Committee; and (b) Report of the Credentials Committee, Organization of work, Election of the members of the Board of Directors of the Trust Fund for Victims (were appointed: Belal Sheikh Mohammed from Bangladesh, Helić Arminka from the United Kingdom, Koite Doumbia Mama from Mali, Lordkipanidze Gocha from Georgia, and Michelini Felipe from Uruguay), Election of the members of the Advisory Committee on the Nomination of judges (were appointed: Barrak Binhamad Ahmad Mohammad from State of Palestine, Bîrsan Corneliu from Romania, Cotte Bruno from France, Fulford Adrian from the United Kingdom, Kambuni Lucy Muthoni from Kenya, Monageng Sanji Mmasenono from Botswana, Rodríguez Veltzé Enrique Eduardo from Bolivia and Steiner Sylvia Helena de Figueiredo from Brazi). All proposals were accepted by consensus.