Side Event: “The role of the ICC in Promoting Accountability for Crimes Committed in Ukraine” (co-hosted by the International Partnership for Human Rights and International Renaissance Foundation)

Overview by Emma Bakkum, Research Associate PILPG-NL

Speakers:

1. Dariya Svyrydova, Lawyer, Ukrainian Helsinki Human Rights Union

2. Sergiy Zayets, Lawyer, Regional Center for Human Rights

3. Pavel Dykan, Advocacy Advisory Panel (Euromaidan victims legal representative)

4. Markiyan Halabala, Advocacy Advisory Panel (Euromaidan victims legal representative)

5. Oleksandra Matviychuk, Center for Civil Liberties (Euromaidan SOS), The Coalition “Justice for Peace in Donbas”

6. Simon Papuashvili, Project Manager at the International Partnership for Human Rights

7. Roman Romanov, Human Rights and Justice Program Initiative Director at the International Renaissance Foundation

 
Highlights:

• Difficulties related to investigating and documenting crimes in Ukraine remain.

• CSOs urge the ICC to act upon the evidence communicated to it and to break the current cycle of impunity in Ukraine.

• Challenges for ICC prosecution include time and resource constraints and issues of transparency. States should provide the ICC with the budget it needs to deal with justice requests and its workload, according to Simon Papuashvili.

Ukrainian and international civil society organizations (CSOs) have been documenting gross human rights violations and international crimes committed in Ukraine since 2014. To end impunity for these crimes, several CSOs have shared their collected evidence with the ICCs OTP under Article 15 of the Rome Statute. CSOs urge the ICC to act upon this evidence and to break the current cycle of impunity in Ukraine.

Different NGO representatives highlighted documentation of crimes committed during the Maidan protest, in Eastern Ukraine, and in Crimea. Pavel Dykan mentioned crimes against humanity committed by Yanukovich and government officials during the Maidan protest. He and a representative of the General Prosecutors Office of Ukraine presented evidence suggesting that counteractions taken against protesters were planned, systematic, and orchestrated by a high-level organization. Oleksandra Matviychuk presented documentation of crimes in Eastern Ukraine, such as widespread and systematic persecution, forced labor, torture and ill-treatment, and illegal detainment. Lastly, several NGOs shared documented crimes committed in Crimea, in particular crimes regarding colonization (displacement or transfer to or from the occupied territory).

Simon Papuashvili then discussed a range of challenges ICC prosecution efforts face, including time and resource constraints and issues of transparency. One of the action points for the ICC following these challenges is that the ICC should act timely, as opposed to the situation in Georgia. The ICC budget also has to be revised in accordance with the ever-increasing workload of the Court. States should provide the ICC with the budget it needs to deal with justice requests and its workload. States should not use budgetary discussion as a political tool, which Russia recently did. Moreover, the OTP should seek a higher level of transparency. Civil society can play a role here, namely by actively seeking communication with the ICC and exchanging information with local representatives.

Several issues were raised by the audience, including difficulties related to investigating crimes committed on territory which is not within the control of the Ukrainian government. Other difficulties are related to gathering evidence of Russia’s involvement in Eastern Ukraine and to the question of ICC’s jurisdiction over Ukrainian territory.

Lastly, a comparison to the situation in Georgia was made. It was suggested that CSOs and member states should consider a regional strategy in order to pursue investigations and arrest warrants, especially because of the recent statements made by Russia. Furthermore, CSOs should think about what can be done locally to keep people from losing their hope for justice. National capacity is available in Ukraine but it is difficult to reach as investigation authorities can barely access certain areas. The representative of the General Prosecutors Office of Ukraine added that Ukraine is not able to implement arrest warrants for those responsible for crimes committed at the Maidan protests that fled to Russia. Regarding Crimea, he stated that investigating is difficult: only open sources or witnesses and victims who left Crimea are available. Therefore, Ukrainian CSOs urge for ICC investigation into Ukraine.

Plenary Session on Budget

Overview by Emma Bakkum and David Lando, Research Associates PILPG-NL

Highlights:

• The Registrar noted that further cuts to the budget “will affect the ability of the Court to conduct its investigations.”

• The Women’s Initiative for Gender Justice’s representative noted that the new budget and ReVision program fails to give enough emphasis to gender equality and geographic distribution of staff members. This was answered by the Registrar that the ReVision program does not deal with these issues. Uganda, in turn, noted that the response by the Registrar was “insensitive” and that the underrepresentation of African nationals in senior staff level will not “be taken laying down.”

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Herman Von Hebel, the Court’s Registrar, pinpointed four strategic priorities that the 2016 budget supported: (1) supporting three trial proceedings; (2) Conducting and supporting six investigations; (3) increase Registry vacancy rate; (4) investment in court-wide information security measures.

The Registrar then presented the 2017 proposed budget to be approved by the Assembly of States Members. While the proposed budget includes an increased budget of the Registry (about nine percent) and the Office of the Prosecutor (about seven percent), the Registrar claimed it to be the “result of a great number of internal cuts”. One such internal cut is the decrease of the premises budget by almost fifty percent. He urged not to impose greater cuts on the 2017 budget. He reminded the “States Parties [about] the consequences of further reductions on the Court’s budget; this will affect the ability of the Court to conduct its investigations.”

Finally, Mr. Von Hebel noted that “we are witnessing challenging times. Including intensifying security challenges and global economic challenges.” Due to these challenges “the role of the ICC is more important than ever, [it] is one of the pillars of international stability… The ICC is an investment in a more stable world for tomorrow.”

Ms. Maria Fernandez Opazo, the Chair of the Committee on Budget and Finance (CBF) spoke after Mr. Von Hebel. She reminded the States Parties of the importance of “timely contributions” to the budget; otherwise the Court’s ability to function will be jeopardized.

States Parties (France, UK, Spain, Canada, and Kenya) responded to the report about the budget of 2016 and the proposed budget of 2017. All States required an elaboration of the ReVision program that sought to restructure the Registry and decrease expenditure. UK raised the point that “the end of ReVision is only the end of the beginning”, meaning there is need to continue to process of restructure and improve efficiency.

The Registrar concurred with UK’s view. He indicated that ReVision is a process, and that it “is a never-ending exercise”. Some States also raised the importance of geographical distribution of Court staff. To this the Registrar responded that “ReVision was not about geographical distribution.” However, “in the new structure of the HR department we are about to launch more activities to deal with the top five countries that are underrepresented: Germany, Japan, Korea, Mexico, and Brazil.” The external auditor agreed with the Registrar that geographical distribution “was not a part of the Audit’s report”.

The debate moved away from the technical sphere when Brigit Inder, the Executive Director of Women’s Initiative for Gender Justice, took the stage. She argued that the proposed budget does not manifest gender equality, and that there are “less women [employees] at the end of the ReVision at the P5 level than before the restructuring,” and there are no women at the P1 level. About geographical distribution Ms. Inder argued that there are “fewer nationals from African States in senior leading positions at the end of the ReVision period.” She concluded that “we are puzzled and concerned about the ongoing ignorance.”

The Registrar responded that the “ReVision was not meant to deal with these issues. But we do address these issues as much as possible.” Uganda, in response, asserted that “the Registrar’s response is insensitive. We would like to see real figures and recruitment of Africans in the real places of management, especially in witness and victim protection. This is not fair, and we shall not keep quiet. We will not take this laying down.” The Registrar did not respond to these comments.

Informal Consultations on the Omnibus Resolution

Overview by Georgios Plevris, Research Associate PILPG-NL

Highlights:

• Draft resolution on African States withdrawal: South Africa wished to add an extension at the end of the sentence, reading “[reconsider their decision] and requests the bureau to remain seized with deliberations on Article 97 and all other matters as reflected to decisions taken in the 15th Assembly of States Parties”.

• No consensus has been reached on extending or reducing the number of days allocated to next year’s ASP.

In its Monday session, the Working Group in the Omnibus Resolution resumed their discussion on the matters of the Draft Resolution. The first delegation to take the floor, South Africa, proposed an addition to OP1bis of Slovenia’s draft proposal with regard to African States withdrawal reference in the Resolution. While noting there are no residual issues with the language, South Africa wished to add an extension at the end of the sentence, reading “ [reconsider their decision] and requests the bureau to remain seized with deliberations on Article 97 and all other matters as reflected to decisions taken in the 15th Assembly of States Parties”.

The Working Group then turned to the debate surrounding the working methods of the ASP, and how to improve its efficiency. The discussion on the number of days the ASP will last was back on the table, and not much progress took place to that end. The Group was still divided between delegations that wanted to extend the ASP by two more days for next year, to cover the election of the judges, delegations that wanted to reduce the ASP by one day, from eight to seven, and delegations that wanted to maintain the format as it is. The two days extension was an issue that confused many representatives, as in the proposal submitted was unclear if that would be just for the election of the judges or in general a two-day extension of the ASP. Costa Rica raised the issue that the NY session had rejected the two-days proposal, as it was too prescriptive, yet it was not clear what the Working group was negotiating; the language was not explicit. Belgium argued that moving forward with the proposals heard at the moment would be troubling, due to the fact that dedicating two days for elections, one for the 20th anniversary that will be an additional agenda item for next year, two days for open debate and working group sessions, will lead to chaos in trying to fit all the rest of the activities in remaining three.

However, many delegations supported the proposal. UK argued that the two days extra are to be dedicated exclusively on judges, to provide the ASP with a heads start, so as not to be overtaken by the election process. It will be an important matter, and the UK delegate expressed its wish to see a consensus on this topic. Netherlands and Australia were also supportive of the proposal on the working methods, and to that end Australia put forth a statement of principle to be included in the proposal, that would read “[..] decides that its annual session shall be limited to the minimum number of days necessary to complete its work”. Mexico and Uruguay also were in line with the proposal, and pointed out that the format should be the ASP to be reduced from eight to seven days, and only add two more days when its election year.

Chile disagreed partially, and underlined the financial and time costs of the matter. Thus they could only support a reduction from eight to seven days, and even proposed to go through the proposal paragraph by paragraph. The facilitator noticed the disagreement and lack of decision in the room and thus suggested that this be re-discussed in the next session and in smaller groups, and encouraged all delegations to provide written statements with their further proposals. The Working Group managed to also reach agreements on further paragraphs and items of the Resolution, including the role and evaluation of the Bureau and Facilitators, the oversight mechanism, and the proposal by Brazil on the time management of the initial debate, that consisted of no more than five minutes per speech, and submitting written instead of oral statements.

Side Event: “Draft Convention on the Prevention and Punishment of Crimes Against Humanity” (hosted by the Federal Republic of Germany and the Republic of Korea)

Overview by Jill Baehring, Research Associate PILPG-NL

Speakers:

1. Sean Murphy, Moderator, Special Rapporteur on Crimes Against Humanity, International Law Commission

2. Hassan Bubacar Jallow, Former Prosecutor, International Criminal Tribunal for Rwanda

3. Judge O-Gon Kwon, International Criminal Tribunal for the former Yugoslavia

4. Solomon Sacco, Senior Legal Advisor, Amnesty International

5. Leila Nadya Sadat, Director, Whitney R. Harris World Law Institute and Chair of the Crimes Against Humanity Initiative, Washington University School of Law

6. Judge Christine van den Wyngaert, International Criminal Court

 
Highlights:

• Sean Murphy, UN Special Rapporteur on Crimes Against Humanity, said that hopes to submit a final version of the Draft Resolution to the United Nations General Assembly in 2019 or 2020.

• Solomon Sacco, Senior Legal Advisor to Amnesty International challenged the notion that the Rome Statute provides the best definition of Crimes Against Humanity, and that the Statute does not necessarily reflect the progress that has been made in the last 15 years.

The side event was opened by Sean Murphy, UN Special Rapporteur on Crimes Against Humanity. He outlined the development and progress of the Draft Convention, which was commenced as a project in 2014. He pointed out that about one half of the world’s States has no national law on Crimes Against Humanity, including the U.S. Even those who do, do not necessarily mirror the Rome Statute’s provisions. For instance, in most cases States do not exercise universal jurisdiction, and many national laws do not allow jurisdiction over an individual if the case does not have any connection to the respective country. He concluded that the Draft Resolution will be able to create greater accountability in this regard. He hopes to submit a final version of the Draft Resolution to the United Nations General Assembly in 2019 or 2020.

Sean Murphy outlined the 10 prospective articles as following:

1) Statement of Purpose of the Convention
2) General obligation of States to prevent and punish Crimes Against Humanity
3) Definition of the Crime, which has been taken from Art. 7 of the Rome Statute
4) The Obligation of States to prevent Crimes Against Humanity and to adopt judicial and other preventive measures.
5) Criminalization at national level, military and civilian command responsibility
6) Establishment of national jurisdiction
7) The duty of States to conduct an prompt and impartial investigation
8) The duty to take an offender into custody as well as cooperation with other States
9) The duty to conduct an investigation as soon as an offender is present in the State’s territory, transfer to other jurisdictions
10) Fair treatment of the offender

Judge Richard Goldstone, Former Chief Prosecutor of the ICTY and ICTR, added that Crimes Against Humanity are the only important war crime without convention. Judge O-Gon Kwon, Former Judge at the ICTY, emphasized that the Draft Convention will not undermine the universality of the Rome Statute. Moreover, it will complement the primary mission of the ICC. He called the Draft Convention an important step in the fight for universality and against impunity.

Solomon Sacco, Senior Legal Advisor to Amnesty International, said that Amnesty International welcomes the initiative and that the Draft Convention will consolidate State’s obligations to investigate Crimes Against Humanity at a national level, which has the potential to act as important trigger to fight against impunity. He encouraged NGOs and civil society to engage with the further process. He pointed out that the Statute of Limitations as set out in the Draft Convention opens the possibility to enable more accountability. Regarding the statement of rights of an offender, he emphasized that a system of international justice is not credible if it lacks the fair treatment of offenders. He also noted that Amnesty International would have preferred a more progressive approach regarding universal jurisdiction. He challenged the notion that the Rome Statute provides the best definition of Crimes Against Humanity, and that the Statute does not necessarily reflect the progress that has been made in the last 15 years.

ICC Judge Christine van den Wyngaert said that the Draft Convention goes well beyond the Rome Statute, especially when it comes to the responsibility to cooperate. This might have a big impact on the fight against impunity. She pointed out that the development of international law was a slow process, but that there has been a rapid development since the end of the Second World War. While the law now knows clear definitions of War Crimes and Genocide, Crimes Against Humanity had not been domesticated by States in the same way, which is why the Draft Convention will be a big step forward.

Leila Nadya Sadat, Director of the Whitney R. Harris World Law Institute and Chair of the Crimes Against Humanity Initiative of the Washington School of Law, agreed that there was a huge development in international law. She pointed out that the development of the Draft Convention would not have been possible without the Rome Statute. She congratulated Sean Murphy on his extraordinary work and highlighted that the obligation to prevent Crimes Against Humanity were a big innovation. Responding to Solomon Sacco, she said that there was a push and pull between international law’s progressive development and codification.

In the questions, it was highlighted once again that even among the States Parties to the Rome Statute, less than half had adapted their domestic law. It was expressed that the Draft Convention will help to contribute to universality and complementarity.

Side Event: “Activation of the Kampala Amendments on the Crime of Aggression” (hosted by Liechtenstein)

Overview by Georgios Plevris, Research Associate PILPG-NL

Speakers:

1. Ms. Athaliah Molokomme, Attorney general of Botswana

2. Mr. Stefan Barriga, Author of The Traveaux Preparatoires of the Crime of Aggression

3. Mr. Claus Kress, Author of The Traveaux Preparatoires of the Crime of Aggression

4. Mr. Don Ferencz, Visiting Professor at Middlesex University School of Law and Convenor of the Global Institute for the Prevention of Aggression

 
Highlights:

• The speakers focused on the historic aspect of the Kampala Resolution and the compromise it took to arrive at it.

• The discussion also addressed the most difficult part of the consensus achieved in Kampala regarding the threshold of the crime and its three qualifies: “[…] by its character, gravity and scale constitutes a manifest violation of the UN Charter.”

• France and UK voiced their concerns with regard to the opt out clause and ICC jurisdiction for non-ratifying State Parties.

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The side event was organized by the delegation of Liechtenstein and addressed current issues of the activation of the jurisdiction of the crime of aggression. Since more than 30 states have submitted instruments of ratification on the Amendments, the spotlight now turns to the process and issues surrounding the activation of the jurisdiction. The speakers focused on the historic aspect of the Kampala Resolution and the compromise it took to arrive at it. Mrs. Athaliah Molokomme stressed out the importance of the Kampala Amendments, its contribution in making the Rome Statute a more universal one, and pointed out that any attempt to renegotiate the jurisdiction of the ICC over the crime vis-à-vis opting clauses will be at the very least troubling. What is imperative at the moment is for the States Parties to communicate how they understand jurisdiction over this crime. The Crime of Aggression is seen as one that offers protection to small and vulnerable countries like Botswana.

Next, Stefan Barriga demonstrated in detail the compromise reached between the ‘consent camp’ and ‘protection camp’ with regard to the opt in/out clause as spelled out in Art. 15 bis of the Kampala Resolution. The core of the deal essentially excludes non-State Parties from ICC jurisdiction with regard to nationality or territoriality of crime perpetration. Examples were given with the kind participation of the audience. For example, if the aggressor is a State Party that has not ratified the Agreement, such as the UK for example, and the victim is also a State Party that has not ratified it (like Sweden), then the ICC has no jurisdiction. On the other hand, if a State Party that has not ratified is the aggressor (like UK) and the victim is a State Party that has ratified such as Liechtenstein, then the ICC has jurisdiction.

An issue that created confusion and debate is seen vis-à-vis Article 121(5), 2nd sentence that reads, “In respect of a State Party which has not accepted the amendments, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory”.
The above sentence created many interpretational issues, and in Kampala it was seen that it should not be red in a literal way when it comes to the special crime of aggression. There was a clear mandate in the original Rome Statute to define and set the scope of jurisdiction vis-á-vis the crime of aggression, and that was exactly what the Kampala Resolution did.

The discussion also addressed the most difficult part of the consensus achieved in Kampala regarding the threshold of the crime and its three qualifies: “[…] by its character, gravity and scale constitutes a manifest violation of the UN Charter”. The threshold sentence reflects the ambition to criminalize violations of the prohibition on the use of force. There are two functions in that threshold; firstly, it is an intensity threshold, meaning that not each and every minor use of force is a crime of aggression, despite it being a violation of international law and of State obligations. Secondly, the threshold requirement recognizes an important fact of international practice: the grey areas of the prohibition on the use of force, such as the use of force by many States in Syria against ISIS, arguments of self-defense and collective defense, and even cases of contested cases of humanitarian intervention. Thus, the aim of the threshold is to protect the ICC from such grey areas. What is reflected in the qualifiers is the fact that customary international criminal law has not developed to the extent where every violation on the prohibition of the use of force amounts to such a threshold. Setting the intensity threshold should not be an arbitrary policy choice.

Many comments and questions were generated in the audience, where many State Parties delegations were present, including Sweden, UK, France and Argentina to name a few. In particular France and UK voiced their concerns with regard to the opt out clause and ICC jurisdiction for non-ratifying State Parties. UK underlined the role of the democratic process in ratifying and accepting amendments to the Rome Statute, and how it would not consider itself bound by the amendment, a stance in accordance with international law. On its side, France raised similar concerns with the UK. More specifically, the French delegate remarked the confusion that exists by the double interpretations on the Amendments that prevail at this time, namely an automatic activation versus the Art. 121(5) of Rome Statute interpretation. The question raised was why should States Parties opt out of an amendment they disagree with and have no intention to ratify? The panel speakers addressed these questions and other comments in their concluding remarks, noting that it will be important for these countries to ratify, because this will allow jurisdiction for when they are-potentially- victims of a crime of aggression. Additionally, if a State does not want to give jurisdiction of the Court on the crime of aggression, they it can also actively and explicitly do so in a declaration of no ratification to the Registrar. Finally, on comments about the jurisdictions over non-state actors, the speakers recognized that there is no appetite to broaden the definition for the crime of aggression to include non-state actors, something that was also observed in the International Military Tribunals’ practice in Nuremberg and Tokyo, who avoided as well such expansionist definitions.