ASP18 Side Event: The Promise of Complementarity in Uganda: Challenges and Opportunities in Delivering Justice to Victims

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 2 (3 December 2019)

Name of the Event: The Promise of Complementarity in Uganda: Challenges and Opportunities in Delivering Justice to Victims (Side Event co-hosted by Uganda, the United Kingdom, and Justice Rapid Response (JRR))

Overview by: Signe Wolf Børm, Junior Research Associate PILPG-NL

Main Highlights:

• This side event focused on complementarity in Uganda. 

• The International Crimes Division (ICD) of the High Court of Uganda was set up in 2008 to deal with civil wars and other national conflicts. The High Court tried alleged perpetrators of crimes against humanity. The High Court of Uganda faces challenges, however, such as lack of capacity to deal with sensitive evidence and its admissibility in court. 

• The main challenge faced in Uganda in its quest to deliver justice is communication with the victims of the conflict. Ms. Solomy Awiidi highlighted that information concerning ongoing cases often is limited. 

Summary of the Event:

Judge Joanna Korner QC, former Senior Prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY), initiated the meeting by reiterating the importance of the complementarity principle: the ICC is a court of last resort and should therefore only be called upon when a national court is either unable or unwilling to act. She clarified that the ICC does not offer a perfect roadmap on how to deal with specific conflicts, this was rather said to require a local response. Judge Korner went on to state that, from every perspective but in particular from that of the victim, it is preferable if prosecution occurs in the country where crimes are committed. She exemplified this by referring to her experience from the ICTY, stating that difficulties arose when a Yugoslavian witness had to be transported to the Hague to give evidence.

Judge Korner then focused on Uganda, acknowledging that Uganda has taken responsibility, launched investigations, and had acquired the capacity building necessary, particularly concerning sexual and gender-based violence. She highlighted that based on her experience from the ICTY, investigations into war crimes are extremely complex and challenging for the investigators and the court system in any country. She acknowledged that such processes are even more demanding in a country that is still recovering or suffering. Judge Korner, therefore, concluded that Uganda, having taken this task upon itself, has stepped up and has hopefully set an example of how other states can do the same.

Justice Henry Adonyo, head of the International Crimes Division of the High Court of Uganda, then outlined the structure of the International Crimes Division (ICD), a special division of the High Court of Uganda. The ICD was set up in 2008 to deal with civil wars and other national conflicts, and the court tried alleged perpetrators of crimes against humanity. Justice Henry Adonyo in his speech particularly focused on the trials of individuals form the Lord's Resistance Army (LRA). It was noted that witness participation is taking place at the High Court of Uganda but that the matter is difficult as Uganda has no unit for the protection of witnesses and victims. Another issue highlighted concerned the lack of capacities to deal with sensitive evidence and its admissibility in court. Uganda inherited its legal system from the United Kingdom and is therefore of an adversarial nature. This further contributes to the difficulties as victims are denied participation in a trial, and a solution to this matter has yet to be provided.

Hereafter, Ms. Florence Owinji Akello, Assistant Director of public prosecutions in Uganda, went on to discuss the challenge of the “amnesty law”. This act provides amnesty to certain people, for instance to some of the LRA leaders. An issue that has arisen is how the public will be explained why not all of the LRA leaders were given amnesty. A further issue highlighted by Ms. Akello was how the prosecution will determine who will serve as witnesses, and how to allow them to reproduce their story without being suppressed.

Ms. Solomy Awiidi, a transnational justice lawyer working for the Refugee project, highlighted some of the needs of victims and witnesses. Ms. Awiidi provided expert knowledge on communication with victims and victim communities. One of the key issues highlighted was that information concerning ongoing cases often is limited. Ms. Awiidi and her co-workers, however, have experienced that giving victims and victim communities information on a case is received positively. Providing victims with information helps them to manage expectations and affirms that there is a genuine interest in prosecuting. It was further mentioned that victims can be provided with educational information into how a trial works, why and how the perpetrator can afford legal protection, and why witness statements are important for trial. Ms. Awiidi underlined the importance of educating victims on how the procedure of testifying in court works and how contributions can be made. Another issue mentioned concerned the geographical representation of areas affected within one trial. It was described that a large area affected by crimes was covered in the trial and this led to the question of how the prosecutor can convince that voices of each part of the country will be heard and all concerns will be addressed. A final issue mentioned by Ms. Awiidi was the court’s lack of jurisdiction to prosecute crimes that were committed before 2010.

Lastly, Ms. Serena Gates, a UK barrister and Justice Rapid Response (JRR) expert, highlighted the necessity to look at the challenges of the case holistically. She pointed out that restrictions on the safety of both prosecutors and witnesses constitute a real issue and that the resources to deal with these issues are lacking. On a more practical level, it was stated that the systems used for filing and documenting the process is based on a paper system. 

It was concluded that it is necessary for lawyers to be able to adapt to the situations in which they find themselves to achieve the best results and to obtain the evidence necessary for trial. Sexual and gender-based violence, for instance, is stigmatized and when it is talked about, it is often done through the use of colloquial phrases which allows a victim to only indirectly state that the occurrence took place. A solution to this particular issue is the use of role-play exercises and mock trials. This can make lawyers more comfortable with having these conversations, which in turn will make it more natural for the victims to talk about what happened to them.

ASP18 Side Event: Launch of the ICC Office of the Prosecutor’s report on Preliminary Examination Activities 2019

18th  SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 5 (6 December 2019)

Name of the Event: Launch of the ICC Office of the Prosecutor’s report on Preliminary Examination Activities 2019 (Side Event co-hosted by Bulgaria, Finland, Niger, Senegal, Slovenia, Tunisia, Uruguay, and the ICC Office of the Prosecutor (OTP))

Overview by: Rachel Grand, Junior Research Associate PILPG-NL

Main Highlights: 

• Current Preliminary Examinations – Venezuela, Colombia, Guinea, Republic of Iraq, Nigeria, Palestine, Philippines, Ukraine, and Bangladesh/Myanmar.

• Prosecutor Fatou Bensouda discussed 3 key themes of the 2019 report – the OTP’s approach and phase 1 analysis, finalization and abstract timelines, and operational capacity/prioritization.

• Questions  – on preliminary examinations in Latin America, Palestine, Nigeria, and the investigation into the situation in Bangladesh/Myanmar.

• Read the OTP’s report Preliminary Examination Activities 2019 here. 

Summary of the Event: 

The ICC Prosecutor, Fatou Bensouda, launched the Office of the Prosecutor's annual report on Preliminary Examinations (published a day earlier on 5 December) during this event. The Prosecutor first provided an overview of the OTP’s Preliminary Examination (PE) Activities of 2019, discussing the PE’s in Venezuela, Colombia, Guinea, Iraq/UK, Nigeria, Palestine, Republic of the Philippines, Ukraine, and Bangladesh/Myanmar. 

Regarding the PE into the situation in Venezuela, she said her office would conclude the subject matter assessment in early 2020. Following that, there will be an assessment of admissibility, and her office will continue to see if crimes committed fall under the Court's jurisdiction. The Prosecutor mentioned the UN's fact-finding mission in Venezuela and noted she looks forward to cooperating with them. She continued with the PE into Colombia, in which her office is currently assessing information from national authorities. The Prosecutor could not say whether the PE will conclude in 2020 since the reality of the long-term and complex proceedings in Colombia need to be reflected. However, she expressed hope to meet specific benchmarks if the present trend will continue, and the PE will conclude. Regarding Guinea, the Prosecutor mentioned the PE stage had been painfully long due to unrest in the country, and she expressed hope there are no further delays in the proceedings. Concerning the situation in the Republic of Iraq, the OTP looks at the admissibility requirement and domestic proceedings, as well as into allegations of the blocking of the investigations. For Nigeria, the Prosecutor noted that the conduct of national proceedings has been renewed this week and she stressed the urgency of the situation. Similarly, she noted the urgency of the PE into Palestine. She noted the criticism the office has received from both sides on the delay of a decision. She affirmed that her office plans to make a decision rapidly but has many facts to consider. The Prosecutor finally discussed the PE in the Philippines and Ukraine, for which determinations should follow soon. She concluded discussing the opening of the investigation into Bangladesh/Myanmar, for which the OTP has already taken measures for the roll out of the investigation, and the appeal hearings concluding today on the potential authorization of an investigation into alleged crimes committed in Afghanistan. 

Following this overview, the Prosecutor discussed three key themes present in the 2019 report, concerning the OTP’s approach and a number of considerations and challenges. First, she touched upon the OTP’s approach and phase one analysis. She described how phase one is devoted to conducting analysis specifically looking at jurisdiction. This phase serves as a filtering process in which the OTP transforms the 795 Article 15 communications they received this year into detailed reports. Since 2012, her office has produced 50 of these reports. She emphasized the goal of providing greater transparency in this process. Further, she explained that phase two is a more detailed assessment of jurisdiction, phase three looks at admissibility, and phase four determines if the investigation would be in the interest of justice. All of the current PE’s are in phase three, except Venezuela. 

Second, the Prosecutor talked about the finalization of PE’s. She cited the several advancements made in multiple of the PE’s and said she hopes to reach decisions soon. She announced that she aims to reach a decision on all phase three PE’s before the end of her tenure, whether that be advancing to an investigation if criteria are met, not advancing to an investigation if criteria are not met, or publishing a detailed report if it is not yet time to make a decision. Regarding finalization, the Prosecutor addressed abstract timelines and noted they may fail to represent the complexities of PEs where more jurisdiction and admissibility issues need to be looked at. She lastly restated that many of the PE’s are in the stage in which a decision whether to proceed with an investigation is close to being reached.  

Third, the Prosecutor addressed the operational capacity of the OTP. She highlighted the fact that there are many PE’s, but that the capacity to address all of them is lacking. This leads to prioritization of the selection of cases. While prioritization is a key term, she noted that we must be certain about what it means and how to apply it. The Prosecutor further noted that her office is at the breaking point to sustain its current activities and faces increasing operational challenges of cooperation and interference. She emphasized that stakeholders and the review process need to consider the heavy burdens and complex problems of the OTP to meet its mandate.

The floor then opened to questions. A representative from a group of NGOs from Colombia, Venezuela, and Mexico made a statement about PE’s in Latin America. Rod Rastan, Legal Advisor to the Office of the Prosecutor, responded by saying that activity in the region shows progress, but the OTP is assessing what that progress means and if the activity is genuine. He noted regarding Mexico that the OTP continues to receive communication on preliminary examinations already decided on and can always revisit them with new information. This was also a point the Prosecutor reiterated later when Dr. David Donat Cattin, Secretary-General of Parliamentarians for Global Action asked about the reopening of PE’s and the permanent storage of evidence. 

Several participants, including Reuters Journalist Stephanie van den Berg, Raji Surani from PCHR, and a representative from Al Haq raised concerns over the Palestine PE. These questions focused on the length of this PE and the language the Prosecutor used in providing context for the situation in the report. Mr. Rastan and the Prosecutor responded to these questions by expressing their understanding of the deep frustrations felt, and noted they are trying to be as transparent as possible. They also reiterated that they are dealing with complex factual and legal issues and are grateful for the cooperation of the Palestinian authorities and NGOs. 

Netsanet Belay from Amnesty International enquired int the Nigeria PE. Mr. Rastan and the Prosecutor reiterated their recognition of frustrations and noted that a decision on Nigeria would come before the Prosecutor's tenure ends. Additionally, they emphasized the commitment of the new Nigerian authorities in prosecuting individuals who committed international crimes domestically. The Prosecutor also mentioned the frank discussion she had with the Nigerian Vice President and Attorney General recently. 

Deputy Prosecutor, James Stewart, took the opportunity to express his trust in the OTP’s staff. He noted that although the resources of the analysis section are few, they are of high quality. “The quality of the work done by the OTP is of the highest order,” he concluded.

The final question came from a legal advisor of the Polish embassy, who asked if the ICC would cooperate with the ICJ regarding the Bangladesh/Myanmar situation. Both the Prosecutor and Mr. Rastan, said they were two different institutions that follow their independent mandates. Nonetheless, they will follow each other's proceedings closely and will cooperate with all entities and fact-finding mechanisms in the process. 

The Prosecutor concluded the event saying that pressure to her office is present, but that this  pressure does not have any bearing on the work the OTP does in applying the law.

ASP18 Side Event: The Politics of Peace: How ICC Intervention Impacts Accountability in Countries that Fail to Provide Justice to Victims

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day  3 (4 December 2019)

Name of the Event: The Politics of Peace: How ICC Intervention Impacts Accountability in Countries that Fail to Provide Justice to Victims (Side Event co-hosted by Norway, Justice International, and the Transitional Justice Coordination Group (TJCG)) 

Overview by: Keri van Douwen, Junior Research Associate PILPG-NL  

Main Highlights:

• ICC denial to open investigation into Afghanistan leaves victims feeling betrayed by an institution that is mandated to deliver justice to the international community, of which Afghans are very much a part. 

• There is no reason to be cautious about the timing of seeking justice as the very little development happening at high political levels does not translate to the reality on the ground: for the people of Afghanistan, the war is only getting more brutal. 

• There will be no peace without justice and accountability: Afghanis have seen many peace negotiations, amnesty bills and peace deals while nothing has led to actual peace.  One cannot use the same failed formula over and over again and expect a different result. 

• Justice is at the core of Afghan culture and tradition.  Forgiveness as well. But so is revenge. 

Summary of the Event:

“If you are going to have a cup of tea with warlords, have a cup of tea with civil society as well.” (Janet Anderson) 

On the third day of the 18th session of the ASP a side event entitled “Politics of Peace” was (co-)hosted by Justice International and the Transitional Justice Coordination Group with support from Norway. Moderated by Janet Anderson (project manager at Justice Hub, international justice observer and host of podcast called ‘Asymmetrical Haircuts’), a panel including victims of the Afghan war, or human rights defenders, as well as experts on human rights and transitional justice, discussed the refusal of the ICC to open an investigation into the situation of Afghanistan, especially in relation to the desires of victims on the ground. The timeliness of the event was stark, given the ICC’s Appeals Chamber started hearing oral arguments on the same morning.

Amal Nassar, a jurist working for the International Federation for Human Rights (FIDH) as Representative to the ICC, emphasized the role that the denial to open this investigation has played in giving rise to discussions on reviewing the performance of the Court, a topic highlighted often during this year’s ASP. In several ways, the decision has shown light on the ICC’s many shortcomings. While the denial has been justified by the investigation not being ‘in the interest of justice’, Nasrina Bargzie, an Afghan-American attorney who represents seventeen different Afghan human rights organizations, argued that the Rome Statute should be closely studied to better understand with whom the authority to conduct an assessment of what is in the interest of justice lies. Horia Mosadiq, Afghan human rights defender and journalist who spoke passionately about her experience as a victim of war at the fourth plenary meeting earlier this week, explaining that she felt a sense of betrayal towards the ICC in deciding against investigating widespread atrocities committed in Afghanistan.  Her feelings of betrayal stem from the ICC’s denial to fulfill what she considers it is mandated to do, namely to deliver justice. She also feels betrayed by the fact that the United States has been able to bring a Court, supported by 123 Member States, “to its knees”. 

The panelists stressed that the ICC is part of a framework that Afghanistan has helped create (Afghanistan ratified the Rome Statute in February 2003) and that this is not a situation considered to be a foreign (western) interference. They noted that Afghan victims are asking for an impartial trial, as they realize that the discussion of whether or not peace should be sacrificed for justice is both irrelevant and mistaken. In the words of the late Kofi Annan, spoken by Amal Nassar, “justice and peace are not contradictory forces. Rather, properly pursued, they promote and sustain one another. The question, then, can never be whether to pursue justice and accountability, but rather when and how.” In the Afghan setting, where justice and peace have long been considered contradictory forces, it has meant that perpetrators turned high government officials or peace negotiators and that amnesty has been granted. For the panelists, this has put lasting peace far out of reach. The international community should learn from applying the same failed formula over and over and understand that a peace that is not inclusive, that is not addressing pain and grievances that Afghans have gone through, is not peace, but much more like a ceasefire. Amal Nassar, Nasrina Bargzie, and Horia Mosadiq stressed over and over again that victims do not have high expectations of the Court. On the contrary, they are very much aware that an investigation might not lead to arrests or prosecution. Rather, they seek to be heard, to make sure that diplomats understand that they should not only meet with warlords, but also with civil society.  They want the world to recognize their experiences and they want to know what happened to their fathers, mothers, brothers, uncles, neighbours and whoever disappeared before their own eyes. Are they alive? Are they still being tortured? Where are their bodies? Nasrina Bargzie, in speaking of meeting ambassadors in Kabul, recollected that the only thing on their minds is the United States and what they might do, without any consideration of justice or accountability for the Afghan people. That is the politics of peace and quoting Richard Bennett “the politics of peace is as dirty as any other politics.” 

Having listened to the other panelists, Sari Kouvo (co-founder and co-director of the Afghanistan Analysts Network) argued that what is needed is for the ICC and other institutions to adopt (some of) the stubbornness that is widely and continuously demonstrated by (Afghan) human rights defenders. Even if the ICC does not open an investigation, as Nasrina Bargzie tells us, Afghan people are resilient and willing to do the work to build up their country, every single day.  Nevertheless, for her, denying the investigation into Afghanistan sends the message to the world that the ICC is in business for the easy cases only, while leaving the tough investigations unaddressed. The ICC should be an inspiring court, Amal Nasser argues “it could function as a catalyst for other cases to be opened on a domestic level”. The intention with which the Rome Statute was brought into force, bringing an end to impunity, is, in itself, not easy nor ever meant to be easy. That being said, Afghanistan has been ruled by a culture of impunity.  

While initiatives towards transitional justice have waxed and waned since 2001, the panel shared an agreement that very little has been done by the international community to establish some level of accountability. Failing to do so has left Afghans no other choice than knocking on the door of the international community’s ‘last resort’ for justice. The panel was clear on the challenge that the International Criminal Court is facing, but also clear that it should face it head on. While the Afghan war remains far from over, Horia Mosadiq stresses that forgiveness is a value at the core of Afghan culture, tradition and religion. However, if justice is not delivered, it will be impossible to forgive - and revenge is, also, very much a part of Afghan culture. 

ASP18 Side Event: Rights of Detainees before the International Criminal Court

18th Session of the Assembly of States Parties to the Rome Statute

Day 4 (5 December 2019)

Name of the Event: Rights of Detainees before the International Criminal Court (Side Event co-hosted by France, Senegal, and the International Criminal Court Bar Association (ICCBA))

Overview by: Hester Dek, Intern PILPG-NL

Main Highlights:

• “Contact with family is a right, not a privilege that should be earned” - Mylène Dimitri.  

• Peter Haynes underlined the absence of the defense bar on the published list of independent experts on the ICC review.

• Mylène Dimitri highlighted the restriction of contact of detainees with their families and its breach of the presumption of innocence. 

• Marie-Hélène Proulx noted the lack of contribution of states to the Trust Fund for Family Visits. 

• Jennifer Naouri highlighted the absence of provisional release granted at the ICC.  

Summary of the Event:

This panel on the rights of detainees before the ICC consisted of Jennifer Naouri, Peter Haynes QC, Marie-Hélène Proulx, and Mylène Dimitri. 

Peter Haynes QC (ICCBA President) opened the event by stating that it was a considered decision to organize this event, as “the section that represents victims is represented well enough, but that of the defense not enough”. He referred to the published list of independent experts for the review of the ICC, which represents (former) judges, prosecutors, etc. but not one person who has ever had a client, has had to visit someone in a detention center, or work under a legal aid scheme. According to Mr. Haynes, it is “not just disappointing, but foolish that the court does not find that the defense bar is worthy of consultation.” 

Mylène Dimitri (Lead Counsel for Alfred Yekatom) discussed restriction of contact of detainees with their families in relation to the principle of presumption of innocence. “If we look at their conditions, it seems like they have lost their presumption of innocence”.  She discusses the current situation, where the court can prohibit, regulate, or set conditions for contact between detainees and their families, if they think that this contact could affect the proceedings. “Sometimes the request for prohibition on contact is requested prior to arrival, portraying the message: not only do we expect you to have committed these crimes, we also expect that you can affect the outcome, we don’t trust you.” According to Ms. Dimitri this breach is a breach of the presumption of innocence and often based on pure speculation, not clear information. “The detainee is put away as someone who is so guilty that there is ground to believe he will harm the victims and hamper the investigation, whereas the situation in the country is out of his control”. She further noted that while restriction on contact recently became the rule, instead of the exception, information on this is not publicly available, making it difficult to do something about the issue.  

Thereafter, Marie-Hélène Proulx (Associate Counsel for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud) first discussed further the presumption of innocence. “There are five current detainees, only one has had a funded family visit. It is a real human drama”. She explains that the court has recognized the right to family visits, no one is disputing this, but that this right is currently not effective. Defendants rights are never a priority, raising the question how one can justify funding everything else, but leave detainees on the side. Only 5 out of 123 states have agreed to contribute to the Trust Fund for Families. 

Next, Jennifer Naouri (Associate Counsel for Laurent Gbagbo) discussed the length of trials, responding to the comment “this would all be less of an issue if the trials would not take so long.” After explaining that the length of a trial is trial-dependent, she highlights that there has been no provisional release granted at the ICC since it exists. She explains how case law allows for the Chambers to look at provisional release, but the language is so vague the judges can just decide not to grant it. Besides that, she raises the issue of a host state having to be willing to accept a detainee, and the relating responsibility. She concluded by proposing to amend the Rome Statute to remove Article 81(3). 

The floor was then opened for questions and comments. The reason for the confidentiality regarding detainees’ contact rights was first considered. Ms. Dimitri responded that this reason is unclear, stating that “confidentiality has become the rule at the ICC, and this has become part of the problem.” Another issue discussed was the question on shortening trials. The first response came from Mr. Haynes, who argued that one of the issues is the possibility for the Court to arrest someone without having confirmed the charges, which according to him should be crystalized on time. Ms. Naouri had a different view on the matter, she argued that this phase was essential, as “you can make a case out of it, you can gain a lot of time.” 

You can watch the full event here.

ASP18 Side Event: Raising the Bar- Improving the Nomination and Election of Judges to the ICC

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 2 (3 December 2019)

Name of the Event: Raising the Bar – improving the nomination and election of judges to the international criminal court (Side Event co-hosted by South Africa, Uruguay, and the Open Society Justice Initiative (OSJI)). 

Overview by: Hester Dek, Intern PILPG-NL

Main Highlights:

• James Goldston emphasized that qualifications should be more important than the campaign during the election process. 

• Judge Ekaterina Trendafilova underlined the importance of judicial education: “if cases are in the hands of judges who do not know how to handle evidence, the outcome will never work”. 

• Alejandra Vicente noted that the ICC is doing better at gender parity than most UN bodies, the ICJ, and some regional human rights courts, however progress is not always sustained.

Summary of the Event:

“This debate is quite belated, it was due a long time ago” 

This side event was organized in the wake of the latest report by the Open Society Justice Initiative (OSJI) “Raising the Bar: Improving the Nomination and Selection of Judges at the International Criminal Court”. The panel consisted of James Goldston (Executive Director OSJI), Judge Ekaterina Trendafilova (President, Kosovo Specialist Chambers), Niels Blokker (Professor of International Institutional Law, Leiden University), and Alejandra Vicente (GQual Secretariat member and Head of Law, REDRESS). The event was chaired by Angela Mudukuti (Senior International Criminal Justice Lawyer, Wayamo Foundation).

James Goldston commenced by discussing the report and emphasizing that until now candidates with the strongest campaigns, rather than the strongest qualifications, have proven most likely to win.

Judge Ekaterina Trendafilova continued the discussion by stressing the importance of judicial education, questioning how one could handle difficult legal matters without sufficient knowledge of the law, as parties are always testing the competence of the judges. “Unless we turn ourselves inside to see what we can do to improve the way judges do their job, we are not going to improve the perception of an outsider of the ICC”. She stressed that “this debate is very much belated, it was due a long time ago”. She highlighted the importance of judges being educated consistently: “if cases are in the hands of judges who do not know how to handle evidence, the outcome will never work”.  

Thereafter, Niels Blokker reflected on the question “how typical is the ICC in how the judges are nominated and elected based on your research?”. According to Blokker, there is no prototype, each tribunal is unique. He emphasized the strong presence of civil society at the ICC. According to him, there isn’t enough research on the governance of international tribunals.

Next, Alejandra Vicente discussed the importance of gender parity in tribunals, treaty bodies, and special procedures. She explained that this aim is recognized in treaties, yet it is hardly realised in tribunals. She noted that many countries have only nominated men, using otherwise opaque nomination procedures. On this point of gender parity, Judge Trendafilova pointed out, however, that while gender parity is very important, eventually “you want to be chosen based on your qualifications, not your gender.” 

In assessing gender parity at the ICC, Ms. Vicente responded that the ICC is doing better than most UN bodies such as the ICJ, and some regional human rights courts. If a state wants a chance, they need to nominate women: “it does not allow states to get away with the argument ‘there are no qualified women available in my country’”. She stressed that progress should be more sustained.

Mr. Goldston then referred to the recommendation of the report that states ensure transparent, merit-based nomination processes. Besides that, he highlighted the equitable gender representation, the importance of asking nominees to demonstrate evidence of their legal knowledge, and the need to check fact-check their credentials. 

Lastly, the floor was opened for questions and comments. Questions were raised regarding remuneration for judges, employment security for judges, the requirement of high moral character, and judicial collegiality. On the first question, Mr. Goldstone answered that the issue of remuneration is not a priority at this point. On the question of high moral character, Ms. Vicente responded that previous cases of harassment should be taken into account in the nomination process. Finally, collegiality was said to be important, but with full respect for the independence of the judge.