Second Plenary Meeting of the ASP17

Overview by Filipe Dias Costa and Juan Manuel Martinez Rojas, Research Associates PILPG NL

Highlights:

• The EU gave a joint statement through Austria supporting the ongoing investigation in Myanmar/Bangladesh concerning the Rohingya and the situation in Syria.

• Palestine indirectly denounced the U.S. approach towards the Court and determined the Prosecutor’s situation on Palestine as a test for the Court’s impartiality from external factors.

During the second plenary meeting of the 17thAssembly of States Parties on 5 December 2018, 26 States Parties to the Rome Statute issued their statements. A common aspect found in nearly all statements was the commendation of complementarity and cooperation as the cornerstones of the international criminal legal system. In parallel, most states also urged the Court’s role to combat impunity and ensure proper accountability for atrocities.  A shared critique found in the statement of the EU and in other European states was the necessity to enhance the role of victim participation and to ensure their proper reparation in future and ongoing cases. 

Palestine and Georgia reinforced their pleas on the ongoing work of the Office of the Prosecutor in their respective open situations. More energic, Palestine negatively noted the lapse of time since the beginning of the investigations and urged for future developments on the matter. 

Several statements, including from Austria, the Czech Republic, Sweden, Liechtenstein, Slovakia, and France called for further developments in the investigations concerning the Rohingya in Myanmar and Bangladesh and the situation in Syria and urged the Office of the Prosecutor to continue its work in these matters in order for them to be fledged out as concrete cases.

States Parties also urged for the need for an ongoing development of gender and geographical equality on the staff of the ICC as a mechanism to more adequately reflect the diversity of the States Parties and their different legal cultures. 

African states reinforced their utmost support of the ICC and its importance in their legal systems. In this sense, Gambia invited the ICC to conduct more activities in Africa inasmuch as Africa needs the ICC as the ICC needs Africa. Nigeria defended the inclusion of transnational corruption as a crime under the ICC’s jurisdiction insofar it may cause more death and destruction than the crimes already prescribed in the Statute. South Africa asked for more clarity with regard to the scope of UN Security Council referral resolutions.

The states reflected upon the developments that took place in the year of 2018 for the ICC by lamenting the withdrawal of the Philippines from the Rome Statute and by remarking the achievement on the activation of the Court jurisdiction over the crime of aggression.

Many states reiterated the importance of victim participation and reparation and lauded the work of the TFV. Germany announced to donate 300.000 EUR to the TFV, while the Czech Republic pledged to donate 20.000 EUR. Also Slovakia and Ireland stated that a donation to the TFV is coming. 

Several states praised the 2019 budget proposal due to its increased transparency.  Nonetheless, it was remarked that the standards used to achieve such results are still insufficient and a more thorough approach should be applied in future discussions. 

Regardless, the vast majority of the states commemorated the 20thanniversary of the Rome Statute and considered this landmark as an important development in combatting impunity, albeit calling for changes in the ICC in order to more efficiently fulfil its core role and values. Many states see the 20thanniversary of the Rome Statute as an opportunity to reflect upon achievements and challenges of the ICC.

Finally, the meeting was suspended after Ecuador’s statement due to time constraints and the general debate will continue during the 3rdplenary meeting on Thursday 6 December.

First Plenary Meeting of the ASP17

Overview by Phedra Neel, Research Associate PILPG NL

Highlights:

• Highlights were the speeches of the ASP President, judge O-Gon Kwon, the ICC president judge Chile Eboe-Osuji, Chief Prosecutor Fatou Bensouda, and Chair of the Board of Directors of the TFV, Motoo Noguchi. 

• The Chief Prosecutor Fatou Bensouda announced to publish her preliminary examinations report for 2018 later this day.

• Ambassador Jens-Otto Horslund from Denmark is elected as new ASP Vice-President and the states parties elected eight members to the Advisory Committee on Nominations and five members to the Board of the TFV.

After a moment of silence in remembrance of Kofi Annan, the President of the Assembly of States Parties, judge O-Gon Kwon of South Korea opened the 17thASP with a speech that expressed hope in the many achievements in the fight against impunity but also underlined the challenges the Court faces. His speech set the tone and touched upon topics that would be repeated by the other speeches. The main focus was the challenges the Court is facing today while reiterating that the fight against impunity must continue as it is the last beacon of hope for the victims of mass atrocity. In order to do so, according to the president, non-State Parties must be urged to ratify the Rome Statute and be supported in implementing the right legislation to prosecute on a domestic level. Only in this way can the principle of complementarity be upheld and the universality of the Rome Statute promoted.

President O-Gon Kwon continued by stating that there have been many successes in the fight against impunity. But he also referred to the challenges that must be faced together. In this light, he stated that it is unfortunate that major states have not yet ratified the Rome Statute, leaving some regions underrepresented. The president has made universality of the Statute one of the main priorities of his presidency and asked all present to help achieve this cause. The recent withdrawals are most unfortunate as they send a wrong signal. It is therefore important to keep underlying the importance of a ratification and the advantages ratification can have for states. Becoming a State Party sends a strong signal to the world and to the victims of mass atrocities. It must be explained that such a ratification is not a danger for that state’s sovereignty thanks to the principle of complementarity. 

The president continued by underlining that the principle of complementarity lies at the heart of the jurisdiction of the ICC, yet he noted that only half of all States Parties have the necessary legislation in place to carry out the primary responsibility to investigate and prosecute international crimes. Therefore it remains important to support these states in adopting such legislation.

While thanking all those who helped and raised awareness that fully cooperating with the ICC entails more than gathering evidence, arresting and extraditing accused, ASP president O-Gon Kwon stressed the need for better cooperation between the States Parties and the ICC. He stated that due to the inaction of certain states, ICC indictees remain at large. Not abiding the legal obligation to cooperate with the Court can affect the possibility for the Court to effectively execute its mandate and will turn decisions of the Court empty words. Moving on, the president underlined the role of the Trust Fund for Victims and the importance to give victims a voice.  

After encouraging introspection, review, and reflection and underlining the need for diplomatic, political, and financial assistance (“The time to act is now”), the President adopted the agenda for the 17thASP.   

His speech was followed by the president of the ICC, judge Chile Eboe-Osuji of Nigeria. After his words of thanks (in French), Mr. Eboe-Osuji referred to a speech made by the Nigerian President earlier this year in which he declared and pledged that: “In this dangerous world, the ICC is an institution needed in a way that could not have been foreseen by its founders. I will ensure that the next elections in Nigeria will be of a peaceful nature.”

Noteworthy is that Mr. Eboe-Osuiji welcomed criticism of the Court. He stated that we should not demonize those critiquing the Court as these voices force us to reflect on what we can do to make life more just. However, the ICC was founded to be a court of law, meaning that its judgements may be inconvenient. A court of law is ordered to check and balance the state power and a good judge will sometimes render inconvenient judgements, as was shown in the Bemba acquittal. It is not up to the ICC to convict someone simply because he has been found guilty by the public opinion; it is up to the Court to establish a fair process in which the accused has a fair chance to be acquitted. The ICC president therefore urged all present to not raise expectations in the minds of victims simply because the “perpetrator has to be punished for such bad crimes.” 

The ICC president furthermore focused on the principle of equality of arms between the prosecution and defense and how the integration of the Office of the Prosecutor as an organ of the Court contributes to that. Lastly, he focused on resources, expressing that money reserved for justice is but a small investment in the greater scheme and a lucrative investment. After stating that the Trust Fund for Victims is in an everlasting need for more recourses, the ICC president announced that he will make a personal contribution to the Fund.

Thirdly, ICC Prosecutor Fatou Bensouda’s speech did not contain any real surprises. Bensouda explained that there have been both successes and obstacles along the path, but that the Office of the Prosecutor remains ever so faithful to the mission and putting the victims in the center of their actions. Bensouda then talked about the Preliminary Examinations and mentioned that the OTP will publish its preliminary examination report for 2018 later today, followed by a launch during a side event on Monday 10 December. She furthermore stressed that it needs courage and sacrifices from millions to adopt a multinational document, but these efforts are lost when we remain inactive and silent. Finally, she underlined the need for arrest warrants to be executed. “Working to achieve a system of accountability is not a sprint, it is a marathon!”, she added. 

Lastly, Mr. Motoo Noguchi, departing Board Chair of the Trust Fund for Victims, focused on the functions and aim of the Trust Fund, reiterating the importance of its assistance mandate, of which new programs are in the developmental stage. Even though the numbers of donors have increased, the Trust Fund’s workload has increased to the extent that they are no longer able to guarantee reparations for all victims and the demand will only keep increasing. In this context, he reiterated how the Board feels a moral obligation to make reparative justice a reality for victims. The Fund however is facing two challenges: implementation capacity and financial resources. Noguchi underlined the need to make reparations proceedings simple, fast, and cost effective in order to provide meaningful redress for victims. The effectiveness of the reparation proceedings will likely affect the receiving of donations.  He finally stated that a sound balance between the legal and technical precision and the reality of victims in the most dire situations in the field must be sought.  

Further items on the agenda for the first plenary meeting included the election of a Vice-President since Momar Diop (Senegal) resigned effective of 19 March 2018 (the new VP is Ambassador Jens-Otto Horslund from Denmark) and of a Bureau member (Bangladesh), States in arrears (13 as of Jan. 1, 2019), Credentials of representatives of States at the seventeenth session: (a) Appointment of the Credentials Committee; and (b) Report of the Credentials Committee, Organization of work, Election of the members of the Board of Directors of the Trust Fund for Victims (were appointed: Belal Sheikh Mohammed from Bangladesh, Helić Arminka from the United Kingdom, Koite Doumbia Mama from Mali, Lordkipanidze Gocha from Georgia, and Michelini Felipe from Uruguay), Election of the members of the Advisory Committee on the Nomination of judges (were appointed: Barrak Binhamad Ahmad Mohammad from State of Palestine, Bîrsan Corneliu from Romania, Cotte Bruno from France, Fulford Adrian from the United Kingdom, Kambuni Lucy Muthoni from Kenya, Monageng Sanji Mmasenono from Botswana, Rodríguez Veltzé Enrique Eduardo from Bolivia and Steiner Sylvia Helena de Figueiredo from Brazi). All proposals were accepted by consensus.

ASP Plenary Meetings: Thirteenth Plenary Meeting of the 16th ASP – Activation of the Crime of Aggression

By Sophie Bones, PILPG Law Fellow & Victoria Ernst, PILPG Research Associate

The Assembly of States Parties met for its 13th plenary session on Thursday afternoon. The primary issue on the table was whether to activate the Court’s jurisdiction over the crime of aggression. The Austrian representative informed the plenary that after several rounds of open, informal consultations and multiple draft texts of the proposal, the working group had been unable to come to consensus. She returned the floor to the Vice Presidents (VPs) so they could present a final proposal drafted in response to the comments made by Member States throughout the ASP. 

The VP explained that this was the last attempt for consensus and that the draft was not open for negotiation; states needed to accept the draft as it was. The proposal was passed out to delegates. See document number ICC-ASP/16/L.10. The session was suspended for 15 minutes while the delegates reviewed the VPs’ proposal. After 30 minutes, the VPs announced that there was a mistake, made in good faith, in the proposal and that another draft would be circulated to delegates. See document number ICC-ASP/16/L.10*.

Once the session resumed, the VP asked for States Parties to make comments before the ASP acted on the proposal. The UK spoke first and expressed concern over operational paragraph 3, which dealt with the independence of judges. The representative said the placement of the paragraph created legal uncertainty and he requested more time for the ASP to engage with the text and reach consensus. Next, the French representative spoke and said that France would join consensus if one change was made: if operational paragraph 3 was moved to the preamble. Then Lichtenstein, Switzerland, and Japan commented that they would accept France’s proposal for the sake of consensus. However, each representative stressed that they were not thrilled with the proposal and that it represented a significant compromise and deviation from what they had hoped would be adopted. The VPs again suspended the session so delegates could consider France’s proposal.

When the session resumed, Palestine was the first state to speak. The representative was very transparent. He said he was puzzled by the proposal. He expressed that his delegation had many suggestions about the text that he would have proposed if he believed that was an option. However, he noted that moving a paragraph ensuring the independence of judges into the preamble was definitely not a change he thought was necessary, appropriate, or suggested in good faith. Brazil, Cyprus, Slovenia, Samoa, Costa Rica, Switzerland, and Mexico voiced agreement with Palestine’s comments. Switzerland said that, based on the other comments, it needed to change its position and could no longer support the French proposal. Conversely, the UK, Germany, and Denmark voiced support for France’s proposed change. Canada, South Africa, Australia, Japan, and Portugal voiced support for consensus above anything else and agreed that the risk of putting the proposal to a vote when the ASP was so close to consensus was too much of a gamble. France clarified that it made the suggestion because operational paragraph 3 fit better with the paragraphs in the preamble that referenced other parts of the Statute. Portugal also suggested that the operative word in operational paragraph 3 be changed from reaffirm to recall, or that operational paragraphs 3 and 4 be switched, so that the sequencing made more sense. The Samoan representative received applause from the entire assembly when he explained that going to a vote would make the court look weak. He said that leaving the room with anything other than consensus would undermine the ICC and make it impossible for him to continue advocating for other Asian-Pacific states to join the Rome Statute. He admitted he was not a lawyer and did not understand the real difference between operational and preamble paragraphs and believed that consensus was the most important thing. 

The VP retook the floor and determined that the French proposal did not have consensus, so the ASP would be voting on the original proposal instead. The UK then suggested that the session break for another 5 minutes so the delegates could consider Portugal’s suggestions. The VP allowed for three minutes. 15 minutes later, the VP asked if anyone wanted to make additional comments. No one requested time. The VP proposed adopting the original proposal, which passed. 

The resolution ICC-ASP/16/L.10* is only a page long, the most prominent part of it being the opt-in provision, removing any automatic jurisdiction the court might have had over the crime of aggression. There has been strong pressure from the UK and France in particular to avoid an opt-out provision with the reasoning that it would make a state lose face if they had to actively remove themselves from the court’s jurisdiction over aggression. This is clearly reflected in the final resolution at paragraph 2, which says that:

“the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.”

Thus, States Parties do not have to do anything extra to remove themselves from the jurisdiction of aggression if they have not ratified or accepted the amendments, they will be treated like non-state party. 

Takeaways:

– The crime has been activated, but jurisdiction is only for those who have ratified/accepted the Kampala Amendments.
– No state that spoke said they were genuinely happy with the text. Most states admitted that there were many issues they wished could have been resolved. But, at the end of the day (literally), consensus on activation was most important. Many states mentioned that not reaching consensus when they were this close would be a historical mistake.
– Many states – Lichtenstein, Cyprus, Switzerland – called on other states to ratify the Kampala amendments.
– Many states – Madagascar, Guatemala, Canada, Brazil, Bangladesh, Columbia, New Zealand, the UK – requested the record reflect that a state that had not ratified the amendments could be subjected to the Court’s jurisdiction.
– Some states – Venezuela and France – were upset that the translators had left already and gave their statements in their own languages.
– Palestine stressed that there cannot be separate interpretations of the crime of aggression and its application – there needs to be one united ASP.
– Samoa was happy with the ASP achieving consensus and said it will continue to encourage other Asian-Pacific states to join the Rome Statute.

Security Council Meeting on the Situation in Darfur – Report Presentation by Fatou Bensouda

By Sophie Bones, PILPG Law Fellow & Victoria Ernst, PILPG Research Associate

Bensouda’s Remarks – paraphrased 

Effecting warrants of arrest is a big challenge and more collaboration is needed between Member States and the ICC. States Parties receiving as guests suspects the court wishes to arrest cannot become the usual practice. Over the years, reports have highlighted consistent failure of the Security Council to react on the movement of Bashir between states, and States Parties have failed to comply with the court’s request despite a clear treaty obligation to do so. A lack of legal clarity has been used to justify this, however the ICC’s position is that there is no legal lacuna or ambiguity concerning States Parties’ obligation to arrest persons with warrants issued against them. Such failures are flagrant violation of the Rome Statute, they equally undermine the Security Council’s reputation, and are an affront to Security Council resolutions. South Africa failed to arrest Bashir, and the pre-trial chamber found it had failed to comply with the arrest warrant – a direct contravention of the Rome Statute. This failure prevented the court from exercising its functions and powers under the Statute. This decision (not appealed) establishes that there is no legal or factual justification for South Africa’s failure to arrest and surrender Bashir to the court. In such circumstances, there can be no justification to not arrest based on their official status where a warrant has been issued. Despite the chamber’s finding of non-compliance, it did not refer South Africa to the ASP or the Security Council. This was for multiple reasons namely that South Africa was the first State Party to utilize art. 97 of the Rome Statute; the chamber took note of robust domestic proceedings in South Africa on the issue. 

A spotlight is cast on the repeated inaction of the Security Council. This is a matter of grave concern, in particular for Bashir’s victims. This costly inaction has potential to undermine the fight against impunity and lowers the bar of accountability that many have fought to raise. Due to this inaction, states are safe in the knowledge that the Security Council will not respond to breaches. This has a detrimental impact on victims who rely on the court. The EU’s call to Member States of the UN to abide by, and implement resolutions made by the Security Council under Chapter VII was welcomed. However, cooperation has been a significant challenge. The Office of the Prosecutor (OTP) does have gratitude for the support received from other States Parties which has been crucial for obtaining information and evidence. Sudan continues to adopt an antagonistic posture to the ICC and refuses to cooperate, however the ICC is ready and willing to cooperate with them. It is necessary to remember that Bashir and other suspects are alleged to have committed serious crimes under the Rome Statute. As such, the office will continue to independently and impartially investigate these crimes, and notes that all suspects are innocent until proven guilty by the OTP. The OTP calls on the Council to remind parties to comply with International Humanitarian Law. The work of the ICC is essential for fighting impunity for world’s most serious and destabilizing crimes. The Court should be actively supported by the Security Council and community as a whole. The OTP is still receiving reports of killings and displacement of peoples. Moreover, there have also been reports of sexual violence, in particular against young girls. On this note, the OTP reminds the Council that it needs financial support to continue its investigations. Accountability for crimes under the Rome Statute is a necessary complement to sustainable peace in Darfur. Finally, the OTP calls on Member States to come to action on warrants for arrest issued by the court 

Sudan’s Remarks – paraphrased 

Their first comment was regarding the existence of small arms and light weapons in conflict zones. These weapons, the Sudanese representative claimed, contribute to insecurity and instability in the region, and therefore their presence in Darfur poses a challenge to the government. However, he argued that the Government of Sudan will not be part of the weapons collection, and UNAMID is to be responsible for this task. Sudan is not a party to the ICC, whose prosecutor and office, he says, have been blinded by political motives and cannot see the clear position of international law (referring to the Vienna Convention on the Law of Treaties, and the Vienna Convention on Diplomatic Relations). The Sudanese representative further argued that Security Council Resolution 1593 specifically refers to the fact that ICC jurisdiction does not apply to non-parties. This focus on Sudan, he says, is the result of inconsistencies inherent in the Rome Statute, notably the wide and unlimited powers granted to the Prosecutor, going on to mention “shocking reports about corruption of the court and the prosecutor”. 

He states that this Sudan report is the same as previous reports, which have gone beyond all international norms by attacking sovereign states and heads of state. He goes on to complain that the report does not highlight the real perpetrators of the violence – the armed groups. He argues that the ICC is hampering the peace process, and the Prosecutor is a tool for one single predetermined purpose- the intent to use the ICC as a political tool to achieve a specific political objective to extend the hostilities in Darfur. They argue that this intent is solidified by the Security Council Resolution 2363 which seeks to extend the mandate of UNAMID without care that further presence of UNAMID and ongoing ICC interest will continue the war. They believe that the ICC is an obstacle that needs to be removed in order to achieve peace in Sudan so it can turn to development and peace. He also argues that the Prosecutor has used fabricated information on Darfur regarding the numbers of people displaced and the atrocities committed all of which are outside the duties of the Prosecutor, and calls for an investigation into the sources used. He concludes by saying “we pay no attention to the contradiction, utterings, and phrases of a court that was born dead”, and “Sudan will pursue the course of lasting peace in Darfur, by doing so we will protect our people from falling victim to conflict, victims who are being exploited by the Prosecutor and her office”. 

Responses to the Prosecutor’s briefing from other Security Council Member States fell into two camps: those that supported the ICC and the apprehension of Bashir, and those that believed the continued investigation violated international law norms. Sentiments among states in each camp were largely consistent. The United Kingdom, France, Sweden, Senegal, Italy, the United States, Ukraine, Uruguay, Bolivia, and Japan supported the cases in Sudan. Sudan, China, Egypt, Russia, and Ethiopia did not. 

Among the representatives that voiced support for the ICC, the main issues concerned IDPs, continued sexual violence, and continued impunity. Representatives from the UK, France, Sweden, Italy, Uruguay, Bolivia, and Japan called on the Security Council to enforce the decisions of the ICC and take action against non-compliance, especially by State Parties to the Rome Statute. The UK representative stressed the importance of DDR, but said that the government’s ongoing disarmament campaign was undermining the security situation. She also addressed the continued volatility of the situation and the need for a ceasefire to refocus on the peace process. The French representative called for increased access for UNAMID so it could fulfill its mandate. She also reiterated a previous proposal to allow states that do not cooperate with ICC arrest warrants to come before the Council and have a dialogue. The Senegalese and Bolivian representatives called for support of the OTP as well as support of the AU’s high-level implementation group in achieving peace in the region. The Bolivian representative called on non-Parties to the Rome Statute to ratify and added that constructive dialogue was impossible while non-Party states advocated for the rule of law while ignoring their own international obligations. The Italian representative highlighted that the Council’s conversation about Darfur was not progressing and that continued talk without action was not advancing peace or security. He called for more open dialogue and creative solutions. 

The representatives that were not supportive of the ICC’s continued presence in Sudan reiterated sentiments that pursuing prosecution of Bashir violated customary norms relating to head of state immunity and national sovereignty. Representatives recognized achievements made by the Sudanese government in cooperating with UNAMID and others providing humanitarian assistance. Representatives advocated for an African driven peace process, which was being hampered by continued international intervention. Representatives also highlighted their position that states not Party to the Rome Statute have no obligations under it and cannot be held to violate its provisions or to abide by its orders. The Ethiopian representative went as far as to say that the case against al Bashir was weak and was “frankly becoming an embarrassment” to the Court. He said that continuing the case would only serve to damage the Court’s credibility. The Russian Federation representative said that the Prosecutor’s report was misleading and ignored real progress being made by the government of Sudan in pursing peace. He also defended Russia’s inaction in apprehending Bashir and said that Russia did not intend to report to anyone on its bilateral contact with Sudan.

Sudan made it clear today that it has no interest in cooperating with the court, and their complaints are indicative of the regional opinion on immunity for heads of state, and the court’s focus on African States. Sudan views the ICC’s involvement in the region as antagonistic to the peace process, while the OTP stood strong in its opinion that Bashir needs to answer for his alleged crimes in order to fight against impunity and bring a lasing resolution to the conflict. It appears, then, that the parties are at an impasse. Any future progress remains to be seen.

Side Events: 16th Assembly of States Parties | Minding the Gap: Progress in Drafting a Convention on the Prevention and Punishment of Crimes Against Humanity

By Victoria Ernst, PILPG Research Associate

This afternoon’s panel discussion was moderated by Professor Sean Murphy, Special Rapporteur on Crimes Against Humanity and member of the International Law Commission (ILC). Panelists included: Professor Charles Jalloh, also a member of the ILC; Professor Claus Kress, Director of the Institute for International Peace and Security Law at the University of Cologne; Judge O-Gon Kwon, President of the ICC; Professor Leila Sadat, Director of the Whitney R. Harris Law Institute and Special Advisor on Crimes Against Humanity to the ICC Prosecutor; and Solomon Sacco, senior legal advisor for Amnesty International. 

Sean Murphy began the discussion with an overview of the process that led to the first draft of the convention. The ILC launched the project in 2014 and the first reading was completed and opened for comment this past summer. The draft convention consists of a preamble, 15 draft articles, and an annex. Comments will be accepted from states and NGOs through December 2018, and the Commission will submit a new report in early 2019, taking comments into account. The Commission plans to have a second and final completed draft by summer 2019, and shortly after to recommend adoption of the convention by the general assembly. The first draft of the convention can be found on the ILC website in the Commission’s 2017 report. Both members of the ILC on the panel, as well as the Amnesty International representative, called on audience members and the entire international community to submit comments. 

Mr. Murphy also reiterated the need for a convention on crimes against humanity. He stressed that such a convention is not redundant. The ICC focuses on investigating and prosecuting crimes in The Hague, but there is still a need for national level prosecution and increased international cooperation in areas such as extradition. He mentioned that 50% of UN states have no national statute on crimes against humanity, including a third of State Parties to the Rome Statute. The Rome Statute does not require national legislation but incentivizes doing so. Mr. Murphy further noted that even states that do have national legislation on crimes against humanity, do not have legislation in line with the Rome Statute. He cited the fact that many national statutes on crimes against humanity were adopted in the 50’s, 60’s, and 70’s, long before the Rome Statute. One major gap in national legislation across states is that states typically only have jurisdiction if the crime is committed in their own territory or by one of their nationals. Few states have jurisdiction to prosecute individuals present in their territory that do not meet those jurisdictional elements. Addressing this gap is one of the major goals of the convention. 

Next, the discussion was opened to the other panelists, starting with Professor Jalloh. Mr. Jalloh recognized the achievement of the Commission in completing the first draft in only three years. He also stressed the need for a convention on crimes against humanity to fill the gap in international and national prosecution for atrocity crimes. He noted the existence of conventions on genocide and war crimes and the lack of something similar to guide states in prosecuting crimes against humanity. In his opinion, the most significant developments in the convention related to extradition, mutual legal assistance, and the rights of victims. He recognized the difference in transnational prosecution of economic versus atrocity crimes. He hopes the provisions on mutual legal assistance will help address these gaps. He noted that three elements were not included in the first draft: a monetary mechanism, a prohibition on immunity for state officials, and a prohibition on amnesties. He admitted that he wanted all three included, but ultimately the Commission chose not to include them. The monetary mechanism was left out because the Commission perceived this as a political rather than legal issue. Immunities and amnesties were excluded because the Commission determined there was insufficient state practice to address them. 

Professor Kress spoke next. Mr. Kress highlighted the significance of the dispute resolution mechanism in the draft convention. He sees this as a positive development that will allow broader review of legal issues. He used the Bosnian cases as an example. He noted that the crime of genocide was both too limited and too confining to fully adjudicate the crimes at issue. Specifically, the intent requirement in the genocide article constrained the Court. Mr. Kress concluded with areas of improvement he sees for the second draft. He hopes the convention will use some of its elements to further prosecution of war crimes and genocide. He hopes to see guidance on transitional justice and more legal space to prosecute war crimes in non-international armed conflict. 

Judge Kwon spoke next. He reiterated Mr. Murphy’s opinion that the convention was not redundant. He believes the draft convention and the ICC are compatible and mutually beneficial. He sees the new convention as an opportunity for non-State Parties of the Rome Statute to fight against crimes against humanity. He also stressed concern about the lack of a prohibition on amnesties in the draft. 

Mr. Sacco with Amnesty International spoke next. Overall, he said Amnesty is supportive of the convention. He highlighted the provisions on superior orders and the non-applicability of statute of limitations as especially positive. However, he was very transparent on Amnesty’s belief that the convention was not nearly progressive enough. He called on progressive states and civil society to submit comments to push the next draft in a more progressive direction. He specifically hopes for more progressive development on victims’ and witnesses’ rights and a ban on military courts. He was also very concerned about the lack of a prohibition on amnesties and immunities. He mentioned that Amnesty was also concerned with the incorporation in the convention of the Rome Statute’s definitions for gender and sexuality. Amnesty strongly believes that customary international law and global society has moved past those definitions and that the definitions used in the convention should reflect that progression. 

The final panelist to speak was Professor Sadat. She reiterated the other panelists views that the convention was necessary in filling the gap in prosecution of atrocity crimes. She highlighted ethnic cleansing that might not meet the definition of genocide and sexual violence during peace time as particular areas of concern addressed by the convention. She said that the convention was a necessary step in ending impunity and the increased complementarity will create more international criminal law capacity at the national level. She noted that she hoped the preamble would include a Martin’s clause, as there will always be new ways to commit atrocity crimes and she believes it is important to make space for those developments in the convention. She concluded with recognizing that today was the 71st anniversary of the adoption of the Nuremberg principles and the development on this convention was an important step in continuing that legacy. 

Next the discussion was extended to the audience for questions. One audience member asked why incitement was not included in the draft. He was especially concerned about the lack of an explicit mentioning of incitement in the articles relating to prevention. Mr. Murphy replied that the Commission discussed inclusion of incitement but ultimately decided to mirror the Rome Statute as closely as possible. He also added that the drafters believed that incitement was covered in the draft, even if not done so explicitly, through criminalizing attempt and aiding and abetting. Professor Sadat also replied that incitement is supported by the Rome Statute, even though it is not included. She pointed to the fact that incitement is included under genocide and that the likely reason for its exclusion under the article on crimes against humanity is because there was no convention to look to. Mr. Sacco, speaking in his personal capacity, agreed with the audience member that incitement was not adequately covered by the draft convention. 

Another question posed to panel asked whether there were concerns that reducing crimes against humanity to a convention was in itself a step backwards. He was concerned about a dilution in the customary law that had developed around crimes against humanity. The panelists stressed that a dilution in law was not the intent of the convention and that adoption of the convention would further international law relating to the prosecution of crimes against humanity. 

Personal observations: 
It was obvious that all the panelists strongly supported the development of the convention. However, it was also obvious that most, if not all of them, hoped the convention would become more progressive. The ILC members, especially Mr. Murphy, who has been intimately involved in the drafting, were more cautious about the convention becoming too progressive. Both members alluded to push-back from other commission members on certain progressive aspects. The exclusion of amnesties and immunities from the draft also suggests that the Commission’s membership overall is concerned with the acceptance of less progressive states of those elements. Mr. Sacco was very transparent on Amnesty’s concerns over areas where the convention fell short. Civil society will be crucial in helping to move more conservative ILC members towards accepting progressive additions to the convention.