Side Event: “The Role of International Criminal Justice in the Fight Against Modern Slavery”

Overview by David Lando, Research Associate PILPG-NL

Speakers:

• Christian Wenaweser – Permanent Representative of Lichtenstein to the UN

• Phakiso Mochochoko – Director of the Jurisdiction, Complementarity, and Cooperation Division in the Office of the Prosecutor

Highlights:

• Mr. Wenaweser’s demonstrated the magnitude of the crime of enslavement and human trafficking and the impunity gap: “there are millions of people living in slavery, but at the same time, there are only 5.000 proceedings taking place today across the world that regard the crime of slavery.”

• Mr. Mochochoko highlighted the importance of domestic authorities in the battle against the crimes of enslavement and human trafficking.

Despite being short, and constituting only three panelists, the event attempted to tackle an important issue in international law and justice. Namely, how to end impunity for crimes of slavery, forced marriages, and human trafficking.

Christian Wenaweser, the Permanent Representative of Lichtenstein to the UN, opened the event by describing the magnitude of the crimes that are committed: “20 to 45 million people are the victims of slavery. Many believe that slavery is a thing of the past, but these numbers prove this is far from the truth.” And while the crimes are ubiquitous, there is little legal proceedings to confront them: “there are millions of people living in slavery, but at the same time, there are only 5.000 proceedings taking place today across the world that regard the crime of slavery.” Therefore, “it is important to understand that there is a huge impunity gap.” This gap should be confronted, at least partly, by the ICC, Wenaweser continued: “the ICC should exercise its mandate on this matter through raising awareness and prosecuting.”

The debate then shifted from discussing the problems of modern slavery to the possible way to confront them by the ICC. Phakiso Mochochoko, Director of the Jurisdiction, Complementarity, and Cooperation Division in the Office of the Prosecutor, argued that, “modern slavery is not confronted with the vigor needed to encounter it.” Yet, the ICC does “have the ammunition” to do so. The ICC, he argued, can do so not only under the auspices of war crimes, but as crimes against humanity.

The moderator of the event then turned to receive questions from the crowd. I raised the issue that despite the optimism of Mr. Mochochoko, it seems to me that this crime is especially difficult to encounter by the ICC as it lays in a multi-layered liminal space: it lays between the jurisdiction of different States (about which another member of the audience added that some of these States may not even be parties to the Rome Statute), it is both a national issue and an international issue, and it is unclear whether it is individuals that should be investigated or the corporations that facilitate modern slavery. On this, and other questions to that effect, Mr. Mochochoko replied that “on the international level the ICC has enough ammunition against it [modern slavery and human trafficking], but the national level should develop further. This is an important weapon against this crime. Cooperation is a tricky issue. ICC is about individuals; therefore, it is difficult to focus on corporations and businesses. If we find individuals that commit these crimes we will prosecute them, but to establish their connection to corporations is difficult.” Moreover, “States have the primary obligation to prohibit modern slavery and human trafficking. States through national investigations must punish and deter the commission of these crimes. Moreover, the Office of the Prosecutor is willing to stand alongside States in assisting them in combating these heinous crimes. The Office will also look to improve collaboration with different branches of the United Nations.” One interesting statement by Mr. Mochochoko came in response to an assertion by a member of the audience that the first step to fight impunity in this matter is to clearly define in the Rome Statute what exactly modern slavery constitutes. To this, Mr Mochochoko responded: ” Crime of enslavement is fully covered. I am not sure there is need for more elaboration on it in the Statute. The Statute does give us a broad possibility to act on forced marriage as well.”

Side Event: “Extraordinary Chamber in the Courts of Cambodia: A Discussion”

Overview by Emma Bakkum, Research Associate PILPG-NL

Speakers:

• David Scheffer – Special Expert to Extraordinary Chamber in Courts of Cambodia

• Michael Bliss – Australian Department of Foreign Affairs and Trade

Highlights:

• The ECCC is voluntarily funded. The great recession, the tsunami in Japan and the migrant crisis in Europe have had a huge impact on the ability to allocate funds.

Main lessons that can be taken from the ECCC:

• It is possible to have an internationalized national court that is close to the crime scene;

• This court can function in a way to ultimately bring justice on site to the victims within society.

This event hosted by Australia and the ECCC focused on the challenges for a voluntarily funded tribunal within the international justice framework, as well as lessons that can be learned from the ECCC. David Scheffer, U.N. Secretary-General’s Special Expert on United Nations Assistance to the Khmer Rouge Trials, first of all shortly mentioned the four cases that occupy the docket of the ECCC, of which case 001 has been closed. Regarding case 002 he said that top perpetrators are ultimately brought to justice and that a judgment is expected next week Wednesday, November 23. Case 002 will come to an end in January. Cases 003 and 004, against four individuals, are in the final phases prior to the issue of a closing order, which will be done in 2017. Scheffer expects decisions in early 2018. Although an appeal in these cases means another three-year period of trial work, the structure of the court will change radically and 2018 will be a milestone year where the budget will come down considerably.

Secondly, the continued financial operation of the court was discussed. The ECCC is voluntarily funded. The great recession, the tsunami in Japan and the migrant crisis in Europe have had a huge impact on the ability to allocate funds. That is why Scheffer calls on the representatives of governments for support in the upcoming 15th committee vote of the UN, to receive a subvention (16.2 million) that will guarantee the financing of the staff for the year 2017. Individual contributions of governments are extremely important as well and he encouraged those at the side event that anything that can be managed for the 2017 budget will be appreciated to keep the court going.

Former ECCC judge Motoo Noguchi also underlined, among other challenges for the ECCC, the difficulty of operating a hybrid tribunal with voluntary contribution. He and Scheffer added that the trial is closely followed by the Cambodian population at large. During the Q&A session, a question was raised regarding capacity building of the ECCC. According to Scheffer, the ECCC process will have generational impact throughout the Cambodian judiciary. There will be long term impact, however the problems of Cambodia, including the national judiciary, should not be understated.

During the Q&A, former Ambassador Stephen Rapp brought up the issue of the controversy surrounding Cases 003 and 004, asking how the Court will deal with the political tensions between the UN and the Cambodian government as these cases move forward towards the close of the investigations. Scheffer replied by saying that despite various hurdles faced by these cases they do continue to move forward and that fact is key. He highlighted the problem of different viewpoints from different parts of the Cambodian government on these cases and that the Court continues to work their way through this. He furthermore stated although there is the possibility of non-arrest of the accused in these cases, should they be indicted by the Co-Investigating Judges, this is first and foremost a diplomatic issue. However, he highlighted that the Cambodian government has not resisted the investigations in these cases up to this point and that the government is aware of what is at stake should they choose to walk away from the Court at this late stage. There is also the argument that you hear that the Cambodian government could shut down the ECCC and try these cases domestically, however, it is generally accepted that this will not happen. However, it remains to be seen what will happen should these cases go to trial, especially given that the international community is perhaps growing tired. In short, the ECCC is entering a new chapter and it is difficult to predict what will become of Cases 003 and 004.

Another question asked was about the main lessons that can be taken from the ECCC. Firstly, that it is possible to have an internationalized national court that is close to the crime scene and that this court can function in a way to ultimately bring justice on site to the victims within society. This could act as an example for a novel exercise of the ICC. The ICC could pass agreements with states on the basis of the example of the UN and the ECCC that could allow for more ‘agreed complementarity’ rather than the current system that requires states to ‘show they’re doing something’ and if not, the ICC intervenes. The ICC could play a role in bringing talent and integrity into a national court system. Secondly, Scheffer mentions that in terms of trial and investigating management, he would have structured the court differently in retrospect to bring different legal systems together. Noting Scheffer’s comment on the possibility to pass agreements between states and the ICC, ambassador Stephen Rapp added that the new special penal court in the Central African Republic signed a memorandum of understanding with the ICC.

Side Event: “ICC Prosecutor meets with civil society”

Overview by Adina Nistor, Senior Research Associate PILPG-NL

Speakers:

• Fatou Bensouda – Chief Prosecutor of the International Criminal Court

• William R. Pace – Convenor of the Coalition for the International Criminal Court

• Various civil society members

Highlights:

• The chief Prosecutor addressed Russia’s withdrawal as a signatory state to the Rome Statute: Russia was not an ICC state member to begin with.

• Chief Prosecutor Fatou Bensouda stressed the fact that the Court is restricted by a lack of funding, which makes it impossible for the International Criminal Court to take on as many cases as it would want to.

During this meeting, the important role of civil societies play in shaping and helping to deliver international criminal justice was acknowledged. Certain NGO representatives expressed concern over the recent announcements of withdrawal issued by South Africa, Burundi and Gambia, but also Russia’s announcement that it withdraws as a signatory state of the Rome Statute. The Prosecutor underlined the fact that Russia is not a state member of the ICC. Nevertheless, its cooperation is necessary given its role in the Security Council, and in light of the recently opened situation in Georgia. Chief Prosecutor Fatou Bensouda stressed the fact that the Court is restricted by a lack of funding, which makes it impossible for the International Criminal Court to take on as many cases as it would want to.

Fourth Plenary Meeting of the ASP15

Overview by Kimberley Ogonda and Emma Bakkum, Research Associates PILPG-NL

Highlights:

• General Debate in fourth Plenary Session. This debate included a discussion about the withdrawals of States from the Rome Statute and the universality of the Rome Statute.

• Kenya noted that African states remain the bedrock of this Assembly. However, they consider they have been confronted with hostile and negative perception.

• The representative of Tanzania noted in her speech that “Recent widespread perception calls for a serious dialogue. The work of this ASP is to address the matters of serious concern with sincerity and without delay.”

During the 4th Plenary meeting fifteen member states, three observer states (US, Iran, and China), and twelve NGO’s concluded their statements. During the meeting the following highlights were made by the speakers:

The majority of states emphasized their concern with the announcement made by three African member states to withdraw from the Rome Statute and appealed to these states to reconsider their decision. All states also emphasized the importance of sovereignty and noted it was important to respect the wishes of those wanting to withdraw from the Rome Statue. To enable universality many member states noted the need for constructive dialogue between the ICC and members. For example, the representative of Tanzania noted in her speech that “recent widespread perception calls for a serious dialogue. The work of this ASP is to address the matters of serious concern with sincerity and without delay.” Ghana noted that this year’s ASP is held at a time of great turbulence. Withdrawal threatens the legitimacy of the ICC and what it has achieved. Ghana noted that this year’s ASP is held at a time of great turbulence. “Withdrawal threatens the legitimacy of the ICC and what it has achieved. This development is worrying because it represents a deepening of tensions between the Court and African states and because they are setbacks in achieving universality of the Rome Statute.”

El Salvador has recently ratified the Rome Statute and the Kampala Amendments on war crimes and the crime of aggression. This was welcomed by many member states who also urged other non-member states to take necessary steps to ratify the Rome Statue and the Kampala Amendments. Moreover, states expressed concern regarding the UNSC and veto power of states.

Kenya mainly expressed concern regarding the UN High Commissioner’s statement made the previous day, namely that member states wanting to leave the ICC, should leave. Kenya accused the UN High Commissioner of lacking the courage to name the countries outside the Rome Statute: “Do African states have to be the perennial scapegoat? We are shocked and saddened and dismayed by his unhinged and unfortunate statement.” Kenya also stressed it will not engage in superficial dialogue anymore. Kenya strengthened the fact that it remains a defender of human rights and that it will always act in good faith. Kenya views itself as a democratic construct and in good standing. Kenya’s engagement with the court and in this assembly, is and will remain undeaden by law, state practice, multilateralism and diplomatic etiquette.

Non-member state U.S. recalled its concerns regarding the crime of aggression amendments. “We continue to believe there remains a dangerous and substantial degree of uncertainty with respect to quite basic issues regarding the amendments, and we continue to believe that it is in the interest of both peace and justice to ensure that any decision to activate the Court’s jurisdiction be preceded by concrete steps to provide greater clarity on these matters.” Other states however, such as Trinidad and Tobago, urged for the activation of the court’s jurisdiction regarding the crimes of aggression.

Budgetary concerns were also raised by many states. Brazil claimed that budgetary realities in member states are ignored and are not in line in line with budgetary progresses. Further they claimed that the situation is not sustainable and reiterated the need to implement Article 142 and 115(b), to avoid that these costs will fall only on the members. Mexico and Guatemala called for better transparency regarding the budget. Ghana reiterated its call for a cost-benefit analysis to justify the sacrifices that have been made in term of resources and personnel.

States moreover spoke about the importance of protecting victims, having a Victim trust fund and ensuring access for justice for all. The U.S., Mexico and Tunisia made reference to the fact that crimes in Syria and Iraq are currently not being addressed. Complementarity was also emphasized by states. They emphasized their firm belief in the need to effective operationalization of complementarity as a clear instrument to assure the full realization of the objectives of the Rome Statute. Building domestic capacity of judges and prosecutors and other key officials in domestic to equip them adequately.

Ghana noted that the argument to maintain flexibility of Article 97 of the Rome Statute may have been valid in the past, but the fact that the absence of clear guidelines has resulted in uncertainty in the implementation of the provisions is a clear indication that the article requires further examination.

The Philippines also stressed concern regarding the recent decisions to withdraw from the Rome Statute. It furthermore stated that while well-intended, a recent statement by the ICC prosecutor on the situation in the country was premature given what it called ongoing investigations into alleged extra-judicial killings and systematic attacks against the population.

Notwithstanding many member states mentioning the challenges facing the court, they also acknowledged positive movements and achievements by the ICC. The majority of states reconfirmed its commitment to the ICC. Trinidad and Tobago said that ”we have much to celebrate”.

Lastly, several NGO’s delivered statements. They spoke about a range of issues, including the need for states to cooperate with the court and ensure access to justice for victims. They also expressed their concern about member state withdrawal.

Third Plenary Meeting of the ASP15

Overview by David Lando, Research Associate PILPG-NL

Highlights:

• General Debate in third Plenary Session. The debate included a discussion about the withdrawals of States from the Rome Statute, and was concluded in an important speech by the representative of Burundi.

• Burundi’s representative defended the withdrawal of the state from the Rome Statute: “it was a decision that expresses the will of the people of Burundi.”

• The UK representative noted that “we urge States Parties not to walk away, but instead resolve any issue they may have in the ICC.”

• Slovenia said that “The decision to withdraw from a treaty is a sovereign act. Yet we cannot disregard the message these actions send to the victims of atrocities.”

• Uganda: the “withdrawals are not mere masquerading” but reflect deep discontent among states, and that “the withdrawals may have been avoided”, yet “we regret to note that on many occasions Africa’s voice was left unheard.”

The States’ proclamations included a wide range of topics. States generally commended the workings of Court for its unprecedented workload in the time since the 14th session of the ASP. This appreciation was also extended personally to the Prosecutor by Iceland. Another topic that was granted specific commendation by a wide range of states was the recent ratification of the Rome Statute by El Salvador.

Andorra representative said: “The objective of universality of the Rome Statute should be sought. We therefore commend the ratification of the Statute by El Salvador. Moreover, many states, such as Spain, Slovenia, Czech Republic, and Latvia, among others, commended the ratification of the Kampala Amendments. The United Kingdom joined these commendations, yet urged “clarity on the jurisdiction of the Court on the Kampala Accords and the crime of aggression”, therefore expressing the view that the Kampala Amendments, and the definition of the crime of aggression, may collide with national sovereignty as the limits of jurisdiction it grants the Court are unclear. Other matter that was shared by many was the congratulations for the recent move to the Court’s new permanent premises.

The most notable statements concerned challenges to the ICC, most commonly the recent States’ notifications of withdrawal from the Rome Statute. The UK representative noted that “we urge States Parties not to walk away, but instead resolve any issue they may have in the ICC”. Similarly, Hungary’s representative voiced its State’s “regret that some States Parties announced their withdrawal”. And added that, “This ASP is an opportunity engage in a constructive dialogue, including those that dissatisfied with the work of the Court.” Slovenia said that “The decision to withdraw from a treaty is a sovereign act. Yet we cannot disregard the message these actions send to the victims of atrocities.”

Romania also declared that: “it is with deep regret that we received the decision of withdrawals. We encourage these States to reflect on the role of the Court that makes peace and security possible. The withdrawals send a message to the victims that accountability for crimes is impossible.”

The tone was strikingly different in the statements by Uganda, Nigeria, and most notably, Burundi. The representative of Uganda noted that complementarity should head the agenda of the Court, and that “Uganda leads the way in making complementarity a reality.” He then called on members to understand that the “withdrawals are not mere masquerading” but reflect deep discontent among States. He maintained that “the withdrawals may have been avoided”, yet “we regret to note that on many occasions Africa’s voice was left unheard.” And that the withdrawals demonstrate that “fostering good will between the Court and Africa is not a luxury but an absolute necessity.”

About the visit of Al-Bashir to Uganda he indicated that the “invitation of Al-Bashir to Uganda was no different from the invitation to other heads of State, or the invitation by the UN Secretary General to Al-Bashir.” And that “Al-Bashir remains an important figure in any attempt to conduct a dialogue with Sudan. . . These engagements are important to advance peace, security, and stability in the area.” The Nigerian representative called “on the ICC to ensure that the principle of complementarity is assured and applied, and that the sovereignty of States will be respected.” In regards to its domestic conflict with Boko Haram, he argued: “we do not only fight against insurgency, but in a war against terrorists. Terrorist that are wickedly brutal.” An interesting argument from International Humanitarian Law point of view and the implication it has in regards to the definition of the hostilities as armed conflict or not.

Finally, Burundi’s representative carried a statement where she defended the withdrawal of Burundi from the Rome Statute. Interestingly, the speech lasted for 18 minutes, while the allocated time for each statement is five minutes. The main argument was that the withdrawal “was a decision that expresses the will of the people of Burundi”, which was repeated several times. Moreover, she argued against the actions of the Office of the Prosecutor: “Burundi felt deep concern over [the] lack of cooperation by the Office of the Prosecutor, especially in regards to individuals that are prosecuted by the national authorities of Burundi. The Office of the Prosecutor still invited them to its investigations, despite the fact that they are under investigation by the national authorities.” In addition, ” There was constant partisan, biased, language by the Prosecutor about the situation in Burundi, about what she called—quote on quote—third term”. Here the representative referred to the third term of presidency by Pierre Nkurunziza, which sparked the opposition protests in Burundi. The representative argued that the violence that ensued following these protests were not the making of the Burundi authorities, and that the third term of Nkurunziza does not constitute an undemocratic act: “During the crisis in April, Pierre Nkurunziza was selected as the candidate to the presidency and he ended up winning. Others also participated but lost, and they sit in the Parliament these days. Part of the radical opposition rejected the path of legality- they preferred violence as a way to express their demands. Having peaceful protests against the election is a right that is protected by our constitution. However, violent attacks against civilian and military targets are crimes that are punishable by our country. These very individuals [from the violent opposition] were invited by the ICC so they can continue to make false accusations against Burundi, while the government was absent.” The investigation by the Office of the Prosecutor, moreover, manifest an unequal treatment by the Prosecutor, as “Burundi and the African people noticed that she did not send warning to France and Belgium about the way in which they counter terrorist attacks against their own people. We find this to be condescending and unacceptable.” Therefore, “The Office of the Prosecutor acted as if the ICC is some kind of an overarching police force. The people of Burundi said no to this- a thousand times no.”