Sixth Plenary Meeting of the ASP15 – Open Bureau Meeting: “Relationship between Africa and the ICC: Resuming dialogue to win the fight against Impunity”

Overview by Emma Bakkum, Rosalie Dieleman, Kim Ogonda, George Plevris, Research Associates PILPG-NL

Highlights:

• Almost all states expressed their gratitude for this opportunity of constructive and active dialogue and underlined their common values.

• Many states stressed – as in the previous sessions of the plenary debate – the fact that true open and constructive dialogue is necessary to resolve this issue.

• Burundi and many other states such as Venezuela, Tunisia and France, raised the issue of complementarity and reiterated that the ICC is a court of last resort.

• The role and relationship that the United Nations Security Council (UNSC) has with ICC was criticized in the statements of many State Parties.

• The perception of the ICC’s perceived bias towards the African continent was mentioned by several states.

The sixth ASP plenary meeting was an Open Bureau Meeting, discussing the relationship between Africa and the ICC against the backdrop of recent decisions to withdraw from the Rome Statute by Burundi, Gambia and South-Africa. The African Union, several member states, and some NGO’s concluded statements. Almost all states expressed their gratitude for this opportunity of constructive and active dialogue and underlined their common values (and commitment to the ICC in many cases). The NGO Kenyans for Peace with Truth and Justice started the meeting with mentioning three challenges facing the court that were reflected in many other statements as well: the role of the UNSC, the problems with head of state immunity relating to articles 27 and 98 of the Rome Statute, and the perceived bias and perception towards Africa.

South African critique
South Africa – stressing that it is one of the founding members of the Rome Statute – once again emphasized the problems it has encountered with regards to head of state immunity, relating to articles 27 and 98 of the Rome Statute. The emphasis in this statement was on the fact that the Court had not attempted to reach out and start a dialogue about this issue, according to South Africa the Court had put nothing to the table with regards to this commitment to dialogue. The statement did however end on a very constructive note. It was stressed that there is no reason for South Africa to celebrate its withdrawal from the Court, and that there is still a 12-month notice period in which it will be open to engagement in order to find solutions to this problem. Many other states stressed – as in the previous sessions of the plenary debate – the fact that true open and constructive dialogue is necessary to resolve this issue. Nigeria argued that the problems of the court can be resolved at a round table, and gave an example of Nigeria’s own experience where the Court and the Chief Prosecutor adequately reacted to misgivings that Nigeria had towards the ICC. New Zealand stated that it is open to all constructive dialogue, including convening a high-legal dialogue. The Canadian delegation added that they have come to this Assembly of State Parties to listen, where the UK expressed that they are ready to do “anything in their power” to solve the concerns of the African States. France gave several examples of how to strengthen dialogues, through the ASP, but also by organizing ad hoc sessions in response to the withdrawals. In addition, it called upon the ICC to make use of its existing channels and focus groups, and allow as many states as possible to participate in these discussions.

Complementarity 
Burundi mainly came forward in this discussion with critique with regards to how the ICC has applied the complementarity principle to Burundi. Burundi first stressed that their relationship with the ICC has always been a consistent one, and that it is very hard to speak at to the ASP after hearing how deplorable states find their decision to withdraw. They argued that the ICC has not given a lot of regard to the complementarity principle, and that the Court has made it difficult for Burundi to exercise its own rights with regard to investigation and prosecution. Burundi argued that the lack of a policy on the application of the complementarity principle, as well as the discriminatory nature in which the complementarity principle is applied, must be addressed. In addition to Burundi, many other states raised the issue of complementarity, such as Venezuela, Tunisia and France, who iterated that the ICC is a court of last resort. Botswana, additionally expressed that a focus on complementarity also requires a focus on strengthening national courts.

UN Security Council
The role and relationship that the United Nations Security Council (UNSC) has with ICC was heavily addressed in the statements of many State Parties. In particular, attention was paid to universality of the Rome Statute and the incompatibility of this principle when it comes to permanent members of Security Council, of which only 2 are party to the Rome Statute. This does not only create a self-evident problem for principles of justice and universality, but as Botswana and Australia noted, creates issues with regard to the referral power the Security Council has. How can the Security Council maintain powers of referral and deferral when three out of its five permanent members, and most powerful nations in the world, do not recognize and are not parties to the Court itself? Furthermore, the relationship of the UNSC and ICC has often created negative perceptions, of the latter being a political tool in the hands of the veto powers. Greece in its comments about the UNSC underlined the importance of the Court to avoid politicization. NGOs that addressed the plenary pointed out to the need for reform when it comes to the UNSC link to the ICC, while the President of the ASP 15th Session, in a passionate speech, took notice of the need for reflection and possible reform of the UNSC bond with the ICC, through amendments to the Rome Statute. The ASP should be the only proper mechanism to that end.

Perceived Bias
The perception of the ICC’s perceived bias towards the African continent was mentioned by several states. Italy for example, acknowledges the problem of African states who perceive the ICC as biased and selective. Italy is convinced that dialogue with countries that harbor negative perceptions must be actively pursued in an open, inclusive and transparent manner – as happened during this meeting – because it is important to truly understand the concerns. Italy moreover expressed that ”we have twelve months to re-launch and renew this dialogue”, which may reverse the States’ decisions to withdraw. Slovenia and Argentina both argued that one of the problems that the ICC faces is the negative perceptions about it, especially in public opinion and global media. Both states urge that a greater effort is made to create a better understanding of the court and its system. Brazil concluded that the misperception of bias and selectivity of the court is directly connected to a lack of universality.

Concrete proposals
Lastly, a few concrete proposals were put forward. Australia argued for this by saying that ”we should make use of the existing infrastructure to put forward concrete proposals”. Kenya, in line with this, expressed some concrete concerns it has, including subcontracted investigations and partisan intermediaries, which undermine the impartiality of the prosecutor and thus the court. In addition to possible ways of strengthening dialogue, France also suggested the option of creating an office of the ICC within the African Union.

Fifth Plenary Meeting of the ASP15

Overview by Jill Baehring, Research Associate PILPG-NL

Highlights:

• Chief Prosecutor Fatou Bensouda said that the cited recommendations on how the cooperation may be enhanced is as relevant today as it has been when it was published, and that her office is willing to share best practices and expertise. She stated that she hopes increased cooperation can close “the impunity gap”.

• Kalifa Gassama from the United Nations Integrated Peace Building Office in the Central African Republic (BINUCA) gave an example of successful cooperation with the office of the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein regarding human rights violations in the Central African Republic.

• The delegation of the United Kingdom said in their statement that they are intending to fully cooperate with the ICC regarding the preliminary investigations on their nationals in Iraq.

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The 5th Plenary Session was dedicated to the issue of cooperation, with a focus on regional and national initiatives to improve cooperation with the Court. The Chief Prosecutor of the ICC, Fatou Bensouda, stated that cooperation is rooted in both the Court and national courts. She warned that cooperation was crucial to the work of the ICC, stating that the system will underperform and not deliver on the promise to prosecute the most serious crimes. Additionally, she said that the oft cited recommendations on how the cooperation may be enhanced is as relevant today as it has been when it was published, and that her office is willing to share best practices and expertise, for instance the Court’s policy papers, which can provide guidelines for national authorities. She stated that she hopes increased cooperation can close “the impunity gap”.

Subsequently, Sadiq Al-Sur, Prosecutor-General in Libya, was given the word. He said that the extended experience of the Court was highly important for the investigations regarding Gaddafi in Libya, which has contributed to deal with serious crimes. He insisted that crimes are always closely linked to what is happening in other states, which requires judicial cooperation. He gave the example of several European countries supporting his investigations in Libya with peer reviews to local prosecutors, and emphasized that such cooperation is crucial to fight impunity.

After this, Michèle Coninsx, Director of Eurojust, emphasized the necessity to be efficient in the fight against ICC crimes and the need for judicial cooperation in an effective and speedy way. To see the connections between crimes, criminal groups and networks, it would be necessary to step up cooperation with third states. She gave the example of the network of the European Union Cooperation, which she called the “high speed train” to justice.

Herman Von Hebel, Registrar of the ICC, afterwards highlighted the role of the Plenary, which he called an excellent forum to highlight areas that need enhanced cooperation. Financial investigations and witness protection were named as other areas in which the court can benefit from different regional national and international initiatives.

Catherine Bomberger, Director-General of the International Commission for Missing Persons (ICMP), insisted that the problem of missing persons did not respect borders. For this reason, the issue of the missing was a global challenge which demands an international coordinated response. Cooperation could also consolidate peace trough transitional justice. She also emphasized ICMP’s close cooperation with Libya regarding disappeared persons under Gaddafi.

Kalifa Gassama from the United Nations Integrated Peace Building Office in the Central African Republic (BINUCA) highlighted the importance of the cooperation with related entities such as the office of the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein. His office is helping the government to understand the context of human rights and is providing them with support such as reports and briefings for the minister of justice on ongoing human rights violation in the country.

Antoine Bernard, CEO of the International Federation for Human Rights, was given the word and highlighted in his statement the importance of the ICC as a strong incentive or partner for the search for justice. He pointed out that positive complementarity was no longer an abstract concept. He mentioned the increasing danger for first responders and human rights violations documenters, which he called a “worrying dimension”.

Several States Parties expressed their gratitude towards the speakers and appreciated the recent development regarding cooperation. The delegation of the United Kingdom said in their statement that they are intending to fully cooperate with the ICC regarding the preliminary investigations on their nationals in Iraq. Liechtenstein highlighted the importance of extending cooperation to financial investigations. Amnesty International and Human Rights Watch both criticized the issue of non-cooperation of States Parties with the ICC and the inconsistent practice of the Court in this regard.

Side Event: “Domestic Accountability for Crimes Against Humanity in Mexico” (hosted by Open Society Justice Initiative)

Overview by Georgios Plevris, Research Associate PILPG-NL

Speakers:

• Mariclaire Acosta – Mexican Commission for the Defense and Promotion of Human Rights

• Michael W. Chamberlin – Deputy Direction of Diocesan Center for Human Rights Fray Juan de Larios

• Eric Witte – Senior Project Manager of National Trials of Grave Crimes, Open Society Justice Initiative

Highlights:

• The conclusion of the report titled “Undeniable Atrocities: Confronting Crimes Against Humanity in Mexico” launched in June 2016, is that there are substantial reasons to believe that federal state and non-state actors have committed Crimes Against Humanity.

• The current situation in Mexico is characterized by a militarization of the law enforcement and the deployment of the armed forces against drug cartels, a practice that has produced, according to reports, empirical and statistical data, thousands of homicides and disappearances.

• The results of report call for the creation of an internationalized investigative body based in Mexico with powers to independently investigate and prosecute atrocity crimes, as well as cases of grand corruption.

The event revolved around Open Society Justice Initiative’s report titled “Undeniable Atrocities: Confronting Crimes Against Humanity in Mexico” launched in June 2016, in collaboration with five Mexican human rights organizations. The report is the culmination of three years of research and examines the devastating toll of drug related violence in Mexico through the lens of Crimes Against Humanity (CAH) violations. The panel of speakers included Mariclaire Acosta, Board Member of the Mexican Commission for the Defense and Promotion of Human Rights, Michael W. Chamberlin, Deputy Director of the Diocesan Center for Human rights Fray Juan de Larios, and Eric Witte, Senior Project Manager, National Trials of Grave Crimes, of the Open Society Justice Initiative.

The remarks and comments of the speakers drew a dreary and obscure picture of state sponsored violence in Mexico, with accountability and impunity in its center. Citing the high number of cases of torture and forced disappearances, amounting to hundreds of thousands, Mr. Witte reminded the audience many forced disappearances cases like those in Ayotzinapa and Guererro, as a widespread practice in Mexico. The conclusion of the report in question, he noted, is that there are substantial reasons to believe that federal state and non-state actors have committed Crimes Against Humanity. One of the main reasons to conclude that, is the political obstruction and lack of accountability by the Calderon and Pena-Nieto governments, in the forms of denial and minimization of such crimes, encouraging torture during investigations, politicizing prosecution and fabricating evidence, and many more.

During the discussion, many further comments were made towards the lack of accountability and bad governance in Mexico. Mrs. Acosta quoted the latest annual report of the National Human Rights Commission (NHRC) that underlined “[an] absence of rule of law in Mexico”, as well as “lack of legal security for people”. The current situation in Mexico is characterized by a militarization of the law enforcement and the deployment of the armed forces against drug cartels, a practice that has produced, according to reports, empirical and statistical data, thousands of homicides and disappearances. At the same time, generalization and systematization of torture during prosecutorial and police investigations are a regrettable and condemned practice. Furthermore, the double image of Mexico was criticized, with Mrs. Acosta underpinning the discrepancy between what Mexico stands for abroad regarding human rights, and what really happens inside the country.

However, the aim of the report is not to trigger jurisdiction of ICC. On the contrary, the report calls for the creation of an internationalized investigative body based in Mexico with powers to independently investigate and prosecute atrocity crimes, as well as cases of grand corruption. This caused a serious of questions in the audience, including one from the Senior Legal Advisor to Amnesty International, who was present at the event, about why the report does not recommend an official investigation under the Rome Statute in Mexico. The answer came from Mr. Witte, who remarked the many disadvantages justice in The Hague has in comparison to domestic prosecution. The aim of the report is to encourage and empower the rule of law in Mexico, keeping in mind the proximity of such prosecutions to the victims. Mr. Witte continued saying that even if the ICC opened an investigation this would be at best on a handful of cases, marginalizing in this way many thousands of cases and victims. According to all speakers, the aim of the report is to establish a Guatemala-type of CCIG international mechanism against impunity. In any case, such a recommendation is only a snapshot in time, and can change in the future.

Side Event: “Crimes against Humanity, Sex Crimes and Command Responsibility: Developments and Boundaries in Core International Crime Practice”

Overview by Rosalie Dieleman, Research Associate PILPG-NL

Speakers:

• Ms. Stephanie Barbour (Commission for International Justice and Accountability)

• Dr. Jose Guevara (Mexican Commission for International Justice and Accountability)

• Dr. Emilie Hunter (Case Matrix Network)

• Professor Darryl Robinson (Queens University, Canada)

• Professor Kim Thuy Seelinger ( Human Rights Center, University of California, Berkely, School of Law)

• Ms. Patricia Viseur Sellers (Special Adviser on International Criminal Law Prosecturion Strategies)

• Dr. Ania Salinas Cerda (ICC Pre-Trial Chambers)

Highlights:

• On SGBV: One challenge is the definition of sexual and gender-based crimes, as there are many differences for instance in the definition of rape. Some of these definitions are not gender neutral.

• On CAH: one element of the crime is that it must be part of state organized, or part of state policy. It is a controversial criterion, however the ICC jurisprudence has successfully broadened the scope of organizational activity, with the “policy” requirement not being overly formal.

• On command responsibility: Both Professor Robinson and Ms. Viseur discussed the “mental element” of command responsibility, specifically” the “should have known.” Robinson added that while the commander might claim that he could not have known of the crimes of his subordinates, that is unlikely when he himself created this situation in which he lacks knowledge.

This event was a panel discussion concerning three topics that were discussed by the panel members consecutively. The topics of these discussions are centered around the “developments and boundaries” with regards to crimes against humanity, sex crimes and command responsibility. The event was co-organized by Norway, the Democratic Republic of Congo, the United Kingdom and the Centre for International Law Research and Policy (CILRAP).

Sexual and Gender Based Violence 
The first question raised by the chair was what issues hinder the persecution and prosecution of sexual and gender based violence. Prof. Seelinger raised that there have been a lot of efforts over the past 3 years with regards to implementation at the local level of the Rome Statute and issues with regards to witness protection. One of the challenges here is the definition of sexual and gender-based crimes, as there are many differences for instance in the definition of rape. Some of these definitions are not gender neutral. Stephanie Barbour highlighted that it in order to be able to prosecute offenders of these crimes, is necessary to train investigators to specifically collect evidence with regards to sexual and gender-based crimes. Further remarks were made with regard to the need to further advance witness protection, as well as the importance of dedicating human and material resources to these crimes because it otherwise might get overlooked.

Crimes Against Humanity
The second round concerned the developments and boundaries in crimes against humanity. Professor Robinson noted that in the most recent decisions on crimes against humanity, the ICC has in his views appropriately applied the conditions in the article to the modern-day situation. Especially with the condition concerning requiring state or organization policy. This criterion has been applied more flexible in order to address a broader scope of organizational activity, with the “policy” requirement not being overly formal. Dr. Guevara then went into explaining why the research work of the Mexican Commission for International Justice and Accountability shows that there are widespread abuses with an organizational aspect in Mexico. According to Dr. Guevara there are several crimes in numerous instances that could be attributed exclusively to state actors such as the police, army and the navy, ranging from arbitrary detention, widespread murder and executions to enforced disappearances and torture. The lack of willingness from governments to investigate this is problematic, and his organization is therefore looking into possibilities to ask NGO’s and academics to establish an investigation mechanism.

Command Responsibility
The third round started off with the question: Beyond Bemba, how far does command responsibility travel? Both Professor Robinson and Ms. Viseur talked about the “mental element” of command responsibility, the “should have known.” Robinson added that while the commander might claim that he could not have known of the crimes of his subordinates, that is unlikely when he himself created this situation in which he lacks knowledge. Professor Viseur added to this that in the Bemba case, there was no need to prove that he should have known about the offences going on, but this in fact might be relevant for future crimes. How to establish that a commander should have known, here it might be relevant what actions the commander has taken to gather information about the offences, or even by using diplomatic inquiries for establishing what information was available. Robinson also added that command responsibility is a product of international law which has an influence on domestic legal systems. Dr. Hunter elaborated on this by presenting some of the results of the research work of Case Matrix Network, which concerned the implementation of command responsibility in domestic legislation. So far, approximately 63 states have implemented such legislation, of which approximately 28 have replicated the provisions of the Rome Statute.

Side Event: “Child Soldiers: Prevention and Accountability” (co-hosted by Canada, OTP, Roméo Dallaire Child Soldiers Initiative and JRR)

Overview by Emma Bakkum, Research Associate PILPG-NL

Speakers:

• Fatou Bensouda – Chief Prosecutor of the International Criminal Court

• Roméo Dallaire – Founder of the Roméo Dallaire Child Soldiers Initiative

• Samuel Emonet – Director of Operations at JRR

• Sabine Nolke – Ambassador of Canada to the Netherlands

Highlights:

• The newly launched ICC Policy on Children was praised by all panelists.

• The cooperation between the Child Soldiers Initiative, the JRR and IICI aims to ensure that international crimes involving children are addressed appropriately and systematically.

• Several issues in preventing and creating accountability for the recruitment and use of children were discussed, such as the cooperative roles of the ICC and civil society, the gap between international efforts and national implementation, the moral dilemma of soldiers and police officers when facing child soldiers and rehabilitation.

During this roundtable discussion, ways to prevent and create accountability for the recruitment and use of child soldiers were discussed. It focused specifically on the cooperative roles of the ICC and civil society to address the issue. The panelists emphasized international achievements, including the newly launched ICC’s policy on children by ICC prosecutor Fatou Bensouda, which will serve as a framework for prevention and prosecution of child related crimes at the ICC and as a useful reference to national authorities, civil society and other actors involved. Furthermore, the work that has been delivered by the Child Soldiers Initiative, JRR and the IICI in improving investigations into the use of child soldiers, was highlighted.

While the international community has made great strides to expose and prosecute crimes involving children, it was strongly underlined that more has to be undertaken as children are still disproportionately affected by war. The panelist discussed several issues, such as the implementation gap between international efforts and the national level. Dallaire furthermore discussed the moral dilemma of soldiers and police officers when facing child soldiers. According to Dallaire, these soldiers and police officers need to be an integral part in the solution.

During the Q&A further issues on rehabilitation and the role of the OTP, JRR and Child Soldiers Initiative as well as the role of the UN Security Council in preventing the use of child soldiers were raised. Emonet suggested that to reach accountability for crimes against children, JRR and its roster of experts could serve a complementary role in investigations by the ICC. While Bensouda mentioned that the problems of trauma and addiction during rehabilitation should be taken into account, Dallaire stated that years of efforts on rehabilitation have helped, but that the real essence of the problem is prevention. That is why the Child Soldiers Initiative trains military police forces to get children out of conflict situations. Lastly, gender differences and the role of girls as child soldiers and the way they experience pain differently from boys, as well as the importance of women as peacekeepers were mentioned.