Side Events: 17th Assembly of State Parties | Investigating and Prosecuting for Sexual and Gender Based Crimes at the ICC and Beyond

(co-hosted by Canada and the International Federation for Human Rights (FIDH))

Overview by Eszter Boldis, Research Associate PILPG NL

Highlights: 

• Even though the Rome Statute includes a wide scope of sexual and gender based crimes to date, there are continued issues in the prosecutions of such crimes, including the difficulties in investigating the crimes and the risks to re-traumatization of victims.

• Some of these issues could possibly be addressed in the future Crimes against Humanity Convention while others would involve continued outreach to victims and collaboration with civil society.

During this side event on the investigating and prosecuting of sexual and gender based crimes, Amal Nassar, Permanent Representative of the FIDH to the ICC, moderated the panel which included, among others, the Ambassador of Canada, representatives of the Office of the Prosecutor (OTP), and members of civil society.

Ms. Sabine Nolke, Canada’s Ambassador to the Netherlands, remarked that rape, sexual slavery, and forced marriage are still used as a tool in the context of armed conflict and crimes against humanity. These crimes have a long-term impact on communities, yet the crimes are often invisible because victims are silenced by shame and social pressures. Furthermore, unlike some other crimes, it is also difficult to have evidence on these crimes since there are no ‘satellite pictures’ documenting these crimes. Thus, the evidence is rendered only available by the testimonies of victims. Ms. Nolke, along with the other panelists, agrees that the Rome Statute, which encompasses the widest range of sexual violence and gender based crimes to date, is a large step in recognizing and prosecuting these crimes. Yet, the achievements of the Rome Statute should not be seen as an endpoint. 

As part of the event, FIDH launched a report on Investigating and Prosecuting for Sexual and Gender Based Crimes at the ICC and Beyond. This report is a result of a series of semi structured interviews of 42 practitioners and experts from five different continents. Each interview roughly addresses the following question: What are the challenges to investigating and prosecuting sexual violence and gender-based crimes and what progress has been made? Some of the recommendations of the report include further engagement with victims and civil society stakeholders.

There have been various recent developments in the prosecution of sexual violence and gender based crimes. In her 2016 Policy Paper, ICC Prosecutor, Fatou Bensouda, identified these crimes as an important focus for the OTP, stating “The victims of such devastating crimes will not find solace in our words and promises, but in what we manage to deliver in concrete terms.” Inthe past month, the Extraordinary Chamber in the Court of Cambodia convicted two former leaders of the Khmer Rouge of forced marriage. However, there are some continuing difficulties and setbacks. The Bemba acquittal of June 2018 was a setback for victims of sexual violence who participated in the proceedings for the past seven years. In the light of recent events, the availability of reparations for these victims is unlikely. Furthermore, in the Kenyatta case, forced circumcision has been reclassified as other inhumane acts from the initial classification of sexual and gender based offences. According to James Stewart, Deputy Prosecutor at the ICC, this reclassification was an error due to the misunderstanding of culture of the victim, in which circumcision is not usually practiced and is seen as degrading. To this date, although some offenders were charged with sexual crimes, there has been no conviction of sexual and gender based crimes at the ICC.

Patricia Sellers, Special Advisor to the Prosecutor on Gender, identified several “cracks” in the Rome Statute. The most important of these is the lack of inclusion and criminalization of slave trading as a crime against humanity. Furthermore, the Rome Statute does not include slavery and slave trading (as identified in Additional Protocol II) under war crimes. Sellers suggests the inclusion of slave trading in upcoming Crimes Against Humanity Convention and the deletion of sexual slavery as a separate crime, as it is synonymous or coupled with the crime of enslavement.

Side Events: 17th Assembly of States Parties | “Commemorating the 20th anniversary of the Rome Statute”

(co-hosted by the Netherlands, Uganda and Africa Legal Aid)

Overview by Vicki Tien, Research Associate PILPG NL

Highlights: 

• The side event focused on the discussion regarding the challenges facing the ICC, particularly the ICC’s legitimacy, and the measures to counter these problems.

• The panel speakers all acknowledged the important role of the ICC in the past 20 years but agreed that it is necessary to address the perception issue and take action to change it. 

This side event, commemorating the 20thanniversary of the Rome Statute, resolved around the problem of the ICC’s legitimacy and the lessons learned from 20 years of the Rome Statute. Panel speakers, such as Judge Geoffrey Henderson, argued that the biggest challenge that the ICC has been facing in the past twenty years is the inaccurate perception of the Court from the public. Judge Prost believes that the wrong perception of the Court resulted from the issue of complementarity, which, according to her, has not received enough attention since 1998. She urged everyone to remember that the ICC is based on the complementarity principle, which reflects that core international crimes are preferably investigated and prosecuted in the country where they occurred. She further stressed that the duty of the Court is to motivate the states to take on their responsibilities when an atrocity crime takes place in their own country, and that the Court only has the role to play when the local courts are unable to do the job. The panel speakers believe that many hold a false perception of the ICC and see it as the single authority that can prosecute atrocity crimes. The panel speakers agreed that it is necessary to take action to change this perception.

Regarding the complementarity principle, Judge Prost stated that the ICC is currently facing two problems: capacity building and states’ lack of willingness. She first pointed out the problem that many local courts lack the capacity to prosecute mass atrocity crimes and she thereby highlighted the importance of capacity building through strengthening legal frameworks and training of legal personnel in domestic courts. She stressed that such capacity building efforts require international cooperation. The second problem, concerning the lack of willingness of states, affects the effectiveness of the Court as the Court does not have universal jurisdiction.

In addition to the discussion resolving around the false perception of the Court, the panel speakers briefly discussed the gender balance issue within the Court. One panel speaker stressed that there should be 50/50 gender ratio in the judicial offices in the Court. Currently, the proportion of active female judges in the ICC is 33%.

The audience raised a question about the effectiveness of the complementarity principle as domestic courts in some countries, such as the Central African Republic, have limited capacity and still practice the death penalty. Judge Prost responded that the ICC can be the driving force to improve the personnel training in domestic legal institutions.

Side Events: 17th Assembly of States Parties | “Lessons learned, fairness & access to justice in hybrid tribunals and specialized chambers”

(co-hosted by Australia, Liechtenstein, Romania, International Bar Association (IBA) and International Centre for Transitional Justice (ICTJ))

Overview by Elia Cernohlavkova, Research Associate PILPG NL

Highlights: 

• Hybrid tribunals and specialized chambers form an integral part of the principle of complementarity. The ultimate aim of such institutions is to provide justice for victims, whose needs shall be given due consideration. 

• Civil society plays a crucial role in meeting the needs of the victims as well as ensuring an effective administration of justice.

• To conform complementarity, states should support national initiatives for the adjudication of international crimes as a matter of priority. 

The Ambassador of Liechtenstein introduced this side event and underlined how hybrid tribunals and specialized chambers support the Rome Statute System. The Ambassador of Romania added that the mandate of the tribunals is to facilitate complementarity, in which interstate dialogue, civil society, and justice for victims play an important role. 

Following the introductions, the International Center for Transnational Justice (ICTJ) introduced its report on access to justice at hybrid tribunals, which will be published on the Organization’s website. The report provides an overview of national and international accountability mechanisms as well as the court system’s role in the fight against impunity. The aim of the report is to help practitioners understand the practice of running hybrid courts. It is therefore a technical and practical tool, which draws on the experiences of existing courts including the Special Tribunal for Lebanon or the Special Court for Sienna Leone. The report provides a timeline for creating a hybrid court and gives information on prosecutorial policies and strategies, the structure of tribunals, effective measures to provide redress to victims, and financing.

The International Bar Association (IBA) introduced a complementary report, dealing particularly with issues of fairness and equality of arms at the ICC. The report gives the ASP an opportunity to address and strengthen the processes. It discusses the right to representation and how the right shall be implemented to avoid abuse of victims. The report also elaborates on structures making legal representation possible for both the accused and victims. It proposes that the registrar or an independent defense office should provide support for defense and victims, as well as training and monitoring, which is now largely done by the civil society. Also, a clear framework for victims’ participation and reparations, which until now has been done in an ad hoc manner, shall be created in the future. 

The discussions then shifted to the panel, which consisted of Ms. Donlon (the Registrar of the Kosovo Specialist Chambers), Ms. Guzman (the Magistrate of Special Jurisdiction for Peace in Colombia), Mr. Haynes (Lead Council for victims at the Special Tribunal for Lebanon) and Ms. Kassande (the Head of Office of ICTJ, Uganda)

Ms. Donlon discussed the challenges of setting up a registry. According to her, the challenge lies in running processes in parallel. She mentioned that the following processes are particularly challenging: receiving a legal mandate and support thereof; setting up a provisional budget and organizing donors conferences; strengthening internal governance to increase trust into the organization and its financing, finding appropriate premises (including a maximum security detention area). 

Ms. Guzman then talked about the Peace Agreement in Colombia and its current national implementation. She mentioned that Colombia is implementing the Agreement on the background of being in preliminary examination by the ICC. Ms. Guzman underlined the difficulty of setting up a court in such a political and controversial environment. A Court implementing the Agreement was nevertheless successfully set up and is now in operation for more than ten months. It has jurisdiction over guerilla members and state armed forces. In line with the Peace Agreement, it grants conditional liberties and amnesties as long as no international crimes were committed. Out of the 700 requests for a conditional liberty, 200 were granted. Out of 400 amnesty requests, only two were successful.   

Mr. Haynes continued with the topic of victim participation and the issue of reparations. According to Haynes, reparations proceedings should be “divorced” from the conviction of the accused and should be dealt with as soon as a situation arises. Such a process would remove unnecessary technical difficulties, speed up the process, avoid disappointments of acquittal, compensate victims of all sides, and remove the pressure on the trial chamber to convict in weak cases. In case of an acquittal it would also not absolve the accused for paying reparations. Mr Haynes also advocated for the decrease of the number of participants in a trial to make a trial more efficient. Finally he elaborated on the need of taking victim participation more into account and defining the role of victims and a victims’ council better.

Lastly, Ms. Kassande talked about complementarity and the international crimes division in Uganda. Mentioning the Juba Peace Negotiations between the Lord Resistance Army (LRA) and Uganda, Ms. Kassande said that an important aspect of getting the LRA to the negotiating table was their curiosity on the form of accountability and the role of the ICC. According to Kassande, the Court dealing with the conflict in Uganda is a good example of challenges of the complementarity system. Kassande suggested that the biggest difficulty in adjudicating international crimes before the Court was which legal framework is applicable. The legal framework aspect proved difficult especially for crimes that happened in the 1980s when an international criminal law framework did not yet exist. Kassande also addressed the difficulty of aligning the prosecutions with the amnesties that were previously granted to facilitate peace. 

Side Events: 17th Assembly of States Parties | “The Initiative for a Multilateral Treaty for Mutual Legal Assistance and Extradition for Domestic Prosecution of the Most Serious International Crimes”

(co-hosted by Argentina, Belgium, Mongolia, the Netherlands, Senegal and Slovenia)

Overview by Emma Bakkum, Senior Research Associate PILPG NL

Highlights:

• The MLA initiative aims at filling the gap in the existing legal framework that addresses the prosecution of the most serious international crimes.

• The initiative enjoys the support from 60 states, which have expressed their support by signing a permanent declaration.

• Spain indicated its intention to sign the permanent declaration during the side event. 

• A draft treaty has been established and a second preparatory conference will be held from 11 to 14 March 2019. 

The core group of the MLA initiative (Argentina, Belgium, Mongolia, the Netherlands, Senegal and Slovenia) organized this side event to provide an update on the progress of the MLA initiative and the way forward. Mr. Marko Stucin (Slovenia) started the event by summarizing the history of the MLA-initiative. In 2011, Belgium, Slovenia, and the Netherlands saw a need to address the clear legal gap that hinders effective prosecution of international crimes. Inter-state cooperation is key to the domestic investigation and prosecution of international crimes: without an adequate international legal framework, the effectiveness of domestic prosecutions diminishes. However, the existing legal framework does not contain modern and sufficient provisions for mutual assistance and extradition. The Genocide Conventions is, for example, silent on measures of extradition. After the launch of the MLA initiative, Argentina, Senegal, and Mongolia joined the core group and as of now, the MLA initiative has support from 60 states. 

At the preparatory conference held in October 2017 in Doorn procedural aspects of the MLA-initiative were discussed. The participants for instance decided that the MLA-initiative would follow a stand-alone process outside the scope of the UN. The preparatory conference was also instrumental for the drafting of the treaty, that aims to attend to the needs of practitioners. While the preparatory conference did not always provide answers, none of the participants found that the treaty should apply to less crimes than incorporated in the Rome Statute and the participants were in favor of copy-pasting the definitions of crimes of the Rome Statute while allowing for broader definitions. 

Invitations for the second preparatory conference to be held from 11 to 14 March 2019 will be sent out soon. For this conference, input from co-sponsors is requested to redraft the preliminary treaty and the rules of procedures will be finalized.  

During the Q&A, a representative of Japan inquired into the reasons for pursuing the MLA-initiative outside the UN frame. Ms. Erica Lucera (Argentina) answered that during the preparatory conference in 2017 several reasons were discussed. Pursuing the treaty initiative within the UN framework would constitute more supporting states but also trigger the possibility to reach a text to the lowest level denominator. Moreover, a process within the UN can be more time consuming as several steps needs to be fulfilled first. Ms. Lucera added that this does not mean however, that the MLA-initiative is not looking forward to engage with the UN. A second comment came from a representative of Spain, who, after stating that the MLA-initiative represents a commitment to the rule of law and is a contribution to peace and security, proudly announced to join the initiative as a supporter. Austria, preferring to see both projects come together, mentioned the overlap of the MLA-initiative with the work of the UN International Law Commission on articles on crimes against humanity.

Finally, several NGOs had some remarks. Justice Rapid Response asked how the treaty addresses different perceptions of jurisdiction of states. The answer to this question included that the draft treaty does not oblige any state to use universal jurisdiction. It does however require agreement on the definition of the criminal offenses. Amnesty International (AI) and Parliamentarians for Global Action (PGA) stressed the importance of human rights safeguards and justice for victims. Both NGOs will continue to push for the inclusion of broader definitions and expanding the crimes included. AI highlighted certain issues with the Rome Statute definitions, such as the age of child soldiers. AI moreover emphasized their concern with the provisions on amnesty and pardons, and stated that reasons to refuse cooperation included in the draft treaty may go too far. 

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.