Side Event – “From Bemba to Rombhot: Reflections & Perspectives for the ICC in the Central African Republic” (hosted by the International Federation for Human Rights (FIDH))

Overview by Eszter Boldis, Research Associate PILPG NL

Highlights:

• According to the OTP, the Bemba acquittal did not effectively change the law of command responsibility, but the judges are equivocal on the matter, making it hard to identify any take-aways.

• The Special Court in the CAR could be an alternate avenue for victims who were left without redress following the Bemba verdict.

This side event on the ICC and the Central African Republic (CAR) was organized by the International Federation of Human Rights (FIDH) and included, among others, representatives from the Office of the Prosecutor, the Council of Victims, and the Central African League for Human Rights.

As Karine Bonneau, FIDH, introduced the side event, the Bemba acquittal had a negative effect on the perceived competence and legitimacy of the ICC, especially in the eyes of African states which have lost confidence in the Court and believe it is incapable of delivering justice. But what does the Bemba decision mean for the future? What are some lessons that can be learned and what are some impacts on the ICC, expectations of victims, and launch inquires? 

Fabricio Guariglia, Director of the Prosecutions Division, lamented the strong negative impact of the acquittal on the moral of the OTP. Mr. Guariglia denied that the judgement of the Appeals Chamber creates extremely high standards to prove command responsibility in the case of remote commanders to the point that the law articulated in Article 28 is effectively changed. According to his view, the case turned on factual propositions and there is no change of the legal standards, thus Columbian courts, which may address command responsibility in the near future, are expected to apply Article 28 the same way as it was applied in the Trial Chamber. Despite the inconsistencies in the majority and a lack of clear agreement of judicial opinions, Mr. Guariglia identified certain lessons that can be learned as a result of the Appeal. She stated that the Appeals Chamber clearly had a problem with the Trial Judgement but the exact nature of that problem is difficult to identify. Perhaps a lesson for the Trial Chamber is to provide sufficient details and information supporting the judgement and a complete a thorough explanation of the reasoning leading to a conviction that will then stand up to a robust and aggressive appellate scrutiny. 

Ms. Kepler of the International Criminal Justice division of Human Rights Watch asked whether the OTP will reevaluate its one-case, one-suspect approach to conflicts since if there is only one case on which the justice for victims hinges, in cases of acquittal, there is effectively no justice. Guariglia acknowledges that this is a valid concern, but argues that the Bemba acquittal was not foreseeable. While there are multiple investigations of suspects connected to CAR II, in the future, due to budget constraints, the Court cannot rule out the possibility of another one-case, one-suspect situation.

The recent arrest of Alfred Yekatom in the CAR II situation, provides the OTP with an additional opportunity to address violence in the Central African Republic. In response to a question concerning the opportunistic nature of the Yekatom arrest warrant, Guariglia says that in this field of law, an arrest is a rare commodity, so the OTP must move quickly if they have the evidence. Thereby, he maintained that the OTP had enough evidence to build a successful case prior to Yekatom’s arrest.

Responding to a question concerning the importance of the evaluation of necessary measures in Bemba’s acquittal, Mr. Guariglia, stated that the concept of remote commander and necessary measures is a package, inter alia, by virtue of the distance, the commander is in a less privileged situation in terms of knowledge. With regards to whether Bemba has taken all necessary measures and the interpretation of the provision itself, he identifies three separate views amongst the judges of the Appeals Chamber. The first is the view of the minority, in which the Trial Chamber’s approach to necessary measures was right. The second is the view that the Trial Chamber was wrong in its evaluation of the measures. Lastly, the third view is that command responsibility is more similar to a form of accessorial liability.

Ms. Paolina Massida, Principal Council of the Public Council of Victims, explained the effect of the Bemba acquittal on the victims. In this case, most victims (more than 5,200) were frequently informed about the state of the proceeding by the Council for the Victims, which is partially located in The Hague and partially in the national territories. During the appeal process, the Council needed to explain different potential appellate verdicts to the victims but nobody legitimately believed that acquittal was a possibility. Following the unanimous conviction in 2016, Bemba was also prosecuted for intimidating witnesses and false witness statements-- his guilt, at least theoretically, confirmed by his undue influence on witnessed. So then, what brought the judges to render this verdict of acquittal? When the Council explained to the victims that Bemba was a remote commander and thus given more lenience, the victim started to cry, some saying that the acquittal was “as if [their] parents were killed and [they] were pillaged and raped a second time” while other felt as if they were “sacrificed for political purposes.” 

The judiciary process is important to the victims for a number of reasons ranging from reparations to recognition of victimhood. However, if there is an acquittal, victims in a case are no longer recognized as victims and thus entitled to reparations despite facing obvious challenges such as disease, stigma, and children born of rape. Ms. Massida argues that if Article 75(1) is read separate from 75(2) and in conjunction with 75(6), there should be a possibility of reparations or at the very least, a recognition of the rights of the victims in the Bemba case. Unfortunately, the Court did not accept this argument.

In the midst of ongoing conflict, the Special Criminal Court in the CAR, which operates alongside the ICC on the basis of complementarity, may offer another recourse for victims. The Court, founded in June 2015, has hybrid jurisdiction with international judges and prosecutes war crimes and grave human rights violations. One goal of the Special Court is to shorten trials and prevent people from being victimized twice. The OTP is supporting the Special Court in dealing with issues affecting both courts, such as witness protection.

Side Event - “The ICC’s Jurisdiction Over the Crime of Aggression” (hosted by Liechtenstein))

Overview by Isabella Banks, Research Associate PILPG NL

Highlights:

• The activation of the International Criminal Court’s jurisdiction over the crime of aggression (as of July 2018) is a major development with respect to the rule of law at the international level.

• Despite evidence of widespread state support, the Court’s jurisdiction over aggression is expanding slowly: only 30% of States Parties have ratified the amendment so far.

• The panel was united in their calls for continued ratification of the crime of aggression and in their hope that its activation would have a significant deterrent effect.

Hosted by Liechtenstein, this panel discussion focused on the significance and impact of the International Criminal Court’s jurisdiction over the crime of aggression with respect to the prevention of conflict and the protection of human rights. 

Ambassador of Liechtenstein Christian Wenaweser, the moderator and former President of the Assembly of States Parties (ASP), opened the event with a brief summary of major milestones in the ratification process. At the 2010 Kampala Review Conference, States Parties agreed on the elements of the crime of aggression and the conditions under which the Court could exercise jurisdiction. After significant deliberation at last year’s ASP in New York, the States Parties decided by consensus to activate the Court’s jurisdiction over the crime of aggression as of July 17, 2018. Ambassador Wenaweser highlighted the importance of this development with respect to the rule of law at the international level, stating that it “completed the Rome Statute (Article 5) as it was originally drafted 20 years ago.”

Ambassador Wenawesar went on to introduce the three panelists: Jennifer Trahan, a Clinical Professor at the New York University Center for Global Affairs and an eminent expert in the crime of aggression; David Donat Cattin, Secretary General of the Parliamentarians for Global Action and a leading civil society activist with respect to international criminal justice; and Don Ferencz, Convener of the Global Institute on the Crime of Aggression.

Jennifer Trahan began by summarizing the most important elements of the agreed upon definition of aggression (Article 8 bis), noting that they are largely historically derived from the London Charter of the Nuremburg Tribunal. The first paragraph defines the individual “crime of aggression” (specifically, its “planning, preparation, initiation or execution” by a high-level political or military leader), while the second paragraph defines the “act of aggression” that can only be committed by a state. She interpreted the “manifest violation” provision as excluding all debatable cases.

Ms. Trahan went on to describe the crime’s unique jurisdictional regime: non-States Parties are excluded and States Parties may opt out. As for UN Security Council (UNSC) referrals, UNSC statements made about an act of aggression would not be binding on the Court’s findings and therefore would not infringe upon its judicial independence. While the UNSC could in theory refer a specific act of aggression to the Court (as opposed to the broader situation), Ms. Trahan observed that the Rome Statute does not address this explicitly. Ms. Trahan concluded her remarks by emphasizing the significance of the activation and her belief in its potential for “significant deterrence.”

David Donat Cattin, Parliamentarians for Global Action (PGA), stated that the next UNSC referral would “do justice to Nuremburg” 73 years later and echoed Ms. Trahan’s sentiments about deterrence. He provided an overview of ratification progress in various regions of the world, highlighting a number of ratifications in Latin America and the amendment’s almost unanimous adoption by the European Parliament. Acknowledging that Africa would be more difficult, he indicated that the Central African Republic may be the next state to ratify the amendment. He added that states in the process of ratifying the Rome Statute now have the option to accept it as a whole, including the aggression amendment. El Salvador took this step in 2016. Dr. Donat Cattin stressed that the crime of aggression was an important contribution to the normative framework that the international community had built over the past 20 years, and called for sustained efforts in its ratification.

Don Ferencz spoke last, calling attention to the “elephant in the room” that 70 percent of the States Parties and “some major players” had not yet ratified the amendment. Choosing to open the discussion rather than speak at length, Mr. Ferencz called on the audience to consider what message the reluctance of more powerful states to ratify the amendment sends about equality before the law on an international level.

Ambassador Wenaweser then invited questions from the audience.  A Canadian ambassador asked if the panel believed the recent action by the Russian Federation would qualify as an act of aggression. Ms. Trahan replied that the “manifest violation” threshold is high and acknowledged that deterrence was limited for states with veto power on the UNSC.  Ambassador Wenaweser added that while a number of states had stated that it was an act of aggression, it is ultimately for a court of law to decide. Dr. Donat Cattin concurred with Ms. Trahan that the nationality of the alleged aggressor in this case meant that nothing could be done from a jurisdictional point of view. From a definitional perspective, he agreed that the action would be unlikely to meet the “manifest violation” threshold. 

This answer evolved into a broader discussion about the possibility for the act of aggression to be linked to war crimes committed by the aggressor state, which may carry jurisdictional weight before the Court.  The Canadian ambassador in the audience argued that it would be dangerous to create such a link because it would effectively give a carte blancheto the defending state. “A state should be convicted of war crimes regardless of what side it’s on,” she stated. Ms. Trahan agreed. She stated “I think Nuremburg was not wrong when they said [aggression is] the supreme crime of concern – that it encompasses so many other crimes” and said that it was up to the states parties to increase the Court’s jurisdictional reach through ratification and domestic implementation. She further expressed her hope that the UNSC would use “this tool” to limit aggressive war. Dr. Donat Cattin also agreed with the Canadian ambassador, offering the example of the Rwandan Patriotic Front (RPF), which both brought an end to the Rwandan genocide and “may have committed war crimes.” He argued that while the Court’s jurisdiction over the crime of aggression was not automatic as they had hoped it would be, it was a significant first step. He emphasized that the amendment’s practical value was “first of all normative: it sends a very powerful message.”

Mr. Ferencz again weighed in to stress the importance of holding powerful states accountable, and called on the audience to consider how private citizens could be encouraged to come forward with “government secrets” regarding acts of aggression.

Ambassador Wenaweser concluded the discussion by summarizing the contributions of each speaker. Responding to Mr. Ferencz’s comments, he added that the Court’s relatively narrow jurisdiction makes implementation of the crime of aggression at the national level is all the more important.

Fourth Plenary Meeting of the ASP17

Overview by Kathryn Gooding, Research Associate PILPG NL

Highlights: 

• Several States noted the need for the inclusion of new crimes, such as international crimes relating to climate change, people trafficking, and cybercrimes.

• Several states, including Bangladesh, encouraged the investigation into the crimes committed against the Rohingya.  

• Chile and Canada requested the right of reply to respond to the statement made by Venezuela, noting the recent referral of the country to the ICC. 

• William Pace announced that he is stepping down as convener of the Coalition for the International Criminal Court (CICC) after 24 years. 

During the 4th plenary meeting of the 17thASP the general debate continued. 14 states, including Ghana, Tunisia, Vanuatu, the Democratic Republic of the Congo, Bangladesh, Botswana, Paraguay, Trinidad and Tobago, Sierra Leone, Burkina Faso, and Venezuela, 3 observer states, and several civil society members issued statements. 

Reoccurring themes in the statements were the challenges the Court is facing, for example in relation to cooperation and universality of the Rome Statute. Paraguay observed with concern that some states are withdrawing from the statute. Trinidad and Tobago emphasized that the Court should encourage dialogue about the announced withdrawal of some states from the ICC. Trinidad and Tobago noted that the ICC has been perceived as a threat to national sovereignty by some states and dispelled this by emphasizing that in line with the principle of complementarity, the court’s jurisdiction is only invoked when states are unwilling or unable to prosecute international crimes. Iceland emphasized the need for universal membership of the ICC and that states with concerns about the Court should engage in constructive dialogue. Ghana emphasized the need for continued dialogue to ensure good relations with Africa and Burkina Faso noted new challenges faced by itself and by the Court, namely terrorism, trans-border instabilities, and extreme nationalism. In light of this, Burkina Faso argued that the construction of peace is a permanent quest, and that together, all states must establish credible mechanisms to ensure the independence of the court to improve the fight against mass atrocities. 

In this regards, a number of states mentioned the steps they have taken to implement or complement the Rome Statute at the domestic level. Since 2003, Paraguay has kept a standing invitation to all bodies that wish to investigate Paraguay for conformity with human rights. It also has an IT system to allow for the permanent monitoring for the state of implementation of human rights treaties. 

Numerous states called attention to the crimes committed against the Rohingya. Tunisia called for an investigation into the deportation of the Rohingya. Bangladesh stated that 723,000 Rohingya have come to Bangladesh to flee from “atrocity crimes”, called it a “textbook case of ethnic cleansing”, and argued that the ICC must ensure accountability for the actions of Myanmar. Iceland expressed grave concerns regarding the persecution of the Rohingya people, and encouraged the formation of an independent mechanism to collect evidence of the most serious international crimes committed in Myanmar.

Furthermore, states made calls to expand the subject-matter jurisdiction of the Court. While Vanuatu emphasized atrocities that have been affecting Pacific islands, particularly the impacts of climate catastrophe, and claimed it is a genocide against those dependent on the lands under threat, Trinidad and Tobago proposed an amendment to the Rome Statute to include international trafficking. Vanuatu also supported calls for the Court to take on responsibility for addressing people trafficking and cybercrime. 

Iceland and Venezuela expressed concerns regarding the UN Security Council. Iceland argued for enhanced cooperation between the Court and the UN Security Council, and expressed concern that the situation in Syria had not been referred to the ICC by the UN Security Council.

Similar to statements during previous sessions, states, including Ghana and Sierra Leone, stressed the need for equitable geographical representation and gender balance within the Court.  

Looking back at achievements, many states, including Bangladesh, Botswana, and observer state Iran, congratulated the ICC for the activation of its jurisdiction for the crime of aggression through the Kampala Amendment. Ghana noted that it has commenced proceedings to ensure that it can ratify the Kampala Amendment. Argentina called upon states that have not yet ratified it to do so. 

Venezuela dedicated much of its statement to the recent referral of the country to the ICC (by Argentina, Canada, Chili, Colombia, Paraguay, and Peru). It questioned the transparency, credibility, and independence of the ICC, and argued that the ICC is dominated by one state party. Venezuela criticized the opacity in the selection of situations investigated by the Court, and criticized the ICC for basing their accusations on news articles, witnesses and non-official reports from other parties. Venezuela stated that the work of the Court should be based on verifiable fact. Argentina, as one of the referring states, also touched upon the referral and expressed concerns over Venezuela and the systematic violation of human rights.  

Following Venezuela’s statement, Chili and Canada used their right of reply. Chile emphasized that this is not the right forum to accuse states and that Chile has no desire to accuse states of crimes that did not take place. Canada, in response, expressed concern over the comments made by Venezuela. Canada emphasized that when crimes in a particular country have reached the requisite threshold, they have a right to refer that state to the Court. Venezuela responded to Chile and Canada, noting that both states are accused of serious violations against indigenous peoples.  

After the statements of states parties, three Observer States concluded statements. Iran praised the Prosecutor in discharging her mandate, particularly in relation to her involvement in the Palestine Situation, seeing this as a test for the Court. Iran stated to be determined to help the ICC achieve its goals. China rejected the principle of universal jurisdiction, and argued that the ICC should be guided by the principle that treaties do not create obligations for third parties, nor extend to the nationals of non-state parties. Cuba expressed concern about the UNSC referral process and over investigations by the Court into states that have not accepted the jurisdiction of the Court, which undermines the principle of complementarity. Cuba also emphasized that the definition of aggression should not be limited to the use of force, but should also encompass measures that influence the political independence of a country.

Finally, civil society addressed the ASP, following statements from the International Humanitarian Fact-Finding Mission, the International Committee of the Red Cross, the Sovereign Order of Malta, which expressed its desire that the international community addresses the trafficking of individuals, and the International Criminal Court Bar Association that Court, which underlined that ICC staff must have the highest level of ethics and conduct. Several NGOs, including the Coalition for the International Criminal Court, Parliamentarians for Global Action, No Peace Without Justice, and the International Federation for Human Rights, called upon states parties to strongly support and defend the court, addressed issues of cooperation and underlined their commitment to the work of the Court. William Pace announced that he is stepping down as convener of the CICC after 24 years.

The general debate will continue later during the 17thASP, with the statement of 7 other NGOs. 

Third Plenary Meeting of the ASP17 - Day 2

Overview by Eszter Boldis, Research Associate PILPG NL

Highlights: 

• States called for the adoption of the Kampala Amendments and an overall increase in cooperation with the Court (including compliance with arrest warrants and adoption of domestic statutes).

• The Philippines confirmed their withdrawal from the Rome Statute.

• Switzerland asked the extension of criminalization of forced starvation to NIACs as well.

During the 3rdplenary meeting of the 17thAssembly of States Parties on 6 December 2018 the general debate continued. Most states remarked that the 20thanniversary of the Rome Statute was a time for reflection on the growth of international criminal justice and the fight against impunity, but also a time to look at the ICC with a critical lens and see how the system can be further improved. 

A heralded victory was the adoption of the resolution providing for the activation of jurisdiction of the Court over the crime of aggression at the last session of the ASP. Those countries that have ratified the Kampala amendments stated that they have done so, and urged others to follow in their footsteps. Other criticisms included the lack of effort on the part of some states in regard to complementarity and cooperation. Common suggestions to remedy these weaknesses were the adoption of domestic laws to give proper effect to the Rome Statute and compliance with the 15 outstanding arrest warrants, respectively. 

Many countries also thanked ICC Prosecutor, Fatou Bensouda, for her continued efforts and achievements and noted that in 2020, it will be time to elect a new prosecutor to take over her important work once she finishes her 9-year term in 2021. These countries called for transparency in the selection process to ensure the selection of the most suitable candidates 

Notably, the Philippines confirmed its intent to withdraw from the Rome Statute, which had been announced in March 2018, and in light of the withdrawal, will not be attending deliberations during the present ASP. The withdrawal is due to concerns over the politization of human rights and the work of the Court and a belief that its domestic legislation can punish international crimes and its institutions can properly ensure justice.

Many states (including Uruguay and Slovenia) lauded the work done by the Trust Fund for Victims, noted their own contributions, and asked other states to contribute as well. Japan announced to contribute 52,000 EUR to the TFV. 

All EU countries (Malta, Hungary, Slovenia, Greece, Malta, Estonia, Cyprus, Romania, Poland, Bulgaria, and Portugal) speaking in the 3rdPlenary aligned themselves with the Austria’s statement on the behalf of the EU. Hungary, Greece, Poland, and Chile identified the important role of the Un Security Council in ensuring the proper functioning of the ICC and called for the financial, legal, and political support of the UNSC. Hungary specifically asked the UNSC to revisit the resolution for the referral of Syria and suggested that in the cases like Syria, where a resolution is aimed at stopping an ongoing conflict, vetoes should not be exercised. Switzerland proposed an amendment pertaining to the inclusion of forced starvation under war crimes in non-international armed conflicts, not just international armed conflicts. 

The budget increase was a point of controversy. Some states objected to the increase and asked for the Court to improve its efficiency in order to make better use of funds. Other states defended the increase, stating that the budget is proportional to the Court’s activities and if the activities increase, there would also be an expected increase in the budget. However, even states that support the increase have identified the length of trials as a source of unnecessary expenditure and called for more speedy procedures. Canada, specifically, asked for the development of an exit strategy for closing preliminary examinations which would not lead to case.

Side Events: 17th Assembly of State Parties | "Victims' Participation in ICC Proceedings: Examining the Role of Counsel”

(co-hosted by Chile, the International Federation for Human Rights (FIDH), Open Society Initiative for Eastern Africa, Trust Africa and Victim’s Support Initiative)) 

Overview by Kathryn Gooding Research Associate PILPG NL

Highlights: 

• Counsel emphasized the importance of victim participation in international criminal proceedings, as it adds an air of legitimacy to court proceedings. 

• Counsel also noted the importance of participation for the victims themselves, as they often find comfort and gain healing through recounting their experiences. 

• However, Counsel reiterated the need to manage the expectations of victims and the expert report emphasised the need to ensure that victims have access to services that can ensure healing.

This event focused on the importance of counsel in ensuring the participation of victims in ICC proceedings. The panel included the legal representatives of the victims for the Ongwencase, Joseph Akwenya Manoba and Francisco Cox. They were joined by an expert in the Ongwencase, Teddy Atim, who wrote a report for the court entitled “The Effect of the Lord’s Resistance Army’s Violence on Victims from Northern Uganda in Prosecutor v Dominic Ongwen”. 

The Counsel emphasised the central role of victims in the prosecution of international crimes. Participation of victims in the ICC system is provided under Article 63 of the Rome Statute, which grants victims respect and gives them a sense of justice. Victim participation also has an important value to trial proceedings, increasing the legitimacy of the trial. Counsel play an essential role as the victim’s representatives. 

Joseph Manoba explored how counsel try to facilitate the evidence-extracting process, by creating conducive conditions for the victims in which they can tell the counsel of their experiences. To try and make it easier for the victims, the counsel hold one on one discussions with clients, and this helps victims to more meaningfully engage with the trial and help them understand how important their role is in the trial. Manoba also noted that many of the victims are former child solders, having suffered sexual and gender-based violence, and the victims have found that often the discussions have a healing quality. Therefore, Manoba emphasizes how the one on one meetings are both very helpful for counsel, but also very helpful for victims. 

However, Manoba noted that legal representatives for the victims cannot provide counselling services to the victims, and that they do not have the monetary resources to do so. Manoba emphasizes the difficulties in having to use their own skills to manage situations where victims become emotional, or suffer from recounting memories. 

Francisco Cox explores some of the challenges that legal representatives for the victims suffer from. He notes that there is a time-limit in which victims can come forward and apply to be represented, and this means that many people are not represented as victims. He emphasised how it is the role of the legal representatives for the victims to focus on issues not focused on by the prosecution, to ensure that the victims can gain satisfaction and healing through participation in the court process. 

Teddy Atim explained the main issues surrounding the report she wrote for the Ongwen case. She explained that she needed the study to be representative of the population of Northern Uganda and ensure that there was sufficient representation of victims in the study. The aim of her report was to find the impact of the alleged crimes on the people of Northern Uganda. She aimed to assess the physical health, psychological well-being, access to education, access to health services, food security, and access to water of victims, and how these had been affected by the crimes that they had suffered. 

In her report, she found that psycho-social well-being was what came out strongly in the report. Women were more likely to have worse psychosocial well-being because they suffered more of the violence proportionately. People who suffered more than five war crimes or more were found to more severely suffer from issues surrounding psycho-social well-being, finding that there were compounding effects over time on the psychological state of mind of particularly women. 

She underlined how victims require specialised treatment, particularly in the context of sexual crimes, however this type of treatment has not been available to the victims in Uganda. They require treatment, but they have no access to treatment. This lack of access has implications for well-being in the future, and also means that war crimes often have inter-generational impacts, as children suffer from precarious food security and lack of education in affected households, as the lack of treatment means that healing cannot take place. Atim emphasises the need for psycho-social services, which are truly lacking in Northern Uganda, as well as specialist care for children returning from war. 

A number of questions were put to the panel. One question addressed how counsel prevent unduly raising victims’ expectations, and Joseph Manoba responded to this by explaining that counsel make it very clear from the outset what victims can expect from the court. They go to the communities themselves and explain court processes to the victims and explain what the court can and cannot do for them. Counsel emphasise to the victims that there cannot be any reparations until conviction, and that even upon conviction, reparations may be limited. Francisco Cox noted that often they have to explain to communities that it is possible that Ongwen may be acquitted, and they have to prepare for this. 

Another question queried how it is possible to ensure the participation of victims in preliminary situations. Francisco Cox noted how the counsel has very little experience in this particular scenario, however they would ensure that victims are organised to gather information from them. However, he emphasised that when gathering information from victims, it is important to collect information in relation to a particular individual, who could potentially be held criminally responsible, rather than against the state as would happen with human rights litigation.