Side Event – “Challenges and Prospects on the ICC's Horizon: Afghanistan, Myanmar and More” (co- hosted by the American Bar Association and the International Federation for Human Rights (FIDH))

Overview by Emma Bakkum, Senior Research Associate PILPG NL 

Highlights: 

• The panelists agreed on the importance of the ICC’s involvement in both the situation in Afghanistan and Myanmar/Bangladesh. 

• Grave crimes committed in Myanmar, PILPG’s report Documenting Atrocity Crimes Committed Against the Rohingya in Myanmar referred to. 

This side event, organized by the American Bar Association (ABA) and the International Federation for Human Rights (FIDH), focused on the challenges and prospects on the ICC’s horizon, specifically focusing on the preliminary examinations into the situations in Afghanistan and Myanmar/Bangladesh. Christopher Hale moderated the discussion by a panel of distinguished speakers. 

Ambassador Stephen J. Rapp started by reflecting on the U.S. perspective and policy towards the ICC. While the threatsmade by U.S. national security advisor John Bolton against the ICC worry many, ambassador Rapp emphasized the support the U.S. has historically showed towards the ICC, referring to its cooperation in the transfer of Bosco Ntaganda and Dominic Ongwen to the ICC. Ambassador Rapp stated that the extreme view of Bolton has in history been rejected before and highlighted that the U.S. has always been a leader in establishing international institutions. Therefore, Ambassador Rapp is confident that Bolton’s stance towards international criminal justice will be rejected in the U.S. He added that focus should also be on national efforts and referred to the conviction of Sergeant Robert Bales for war crimes committed in Afghanistan in 2013. 

Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights, provided background information into the ongoing preliminary examination in Afghanistan. The Prosecutor of the ICC, Bensouda, requested authorization from the Pre-Trial Chamber III to start an investigation into alleged war crimes and crimes against humanity in relation to the armed conflict in Afghanistan since 1 May 2003 as well as regarding other crimes that have a nexus to the armed conflict in Afghanistan and are sufficient linked to the situation and were committed on the territory on other state parties (e.g. Romania, Lithuania, Poland) to the ICC since 1 July 2002. This request was made on 20 November 2017, making it the longest pending decision of its kind before the ICC. While the investigation into Afghanistan consists of three parts, crimes against humanity and war crimes by the Taliban and affiliated networks, war crimes committed by Afghan forces, and war crimes committed by the U.S. military and CIA, Gallagher focused on the last. 

She stated that complementarity and admissibility are not an issue of concern for the Pre-Trial Chamber since no senior U.S. official has ever been prosecuted and no efforts have been made to do so.  On top of that, there is evidence of the U.S. government trying to close down any investigation in foreign national courts. According to Gallagher, the case of Afghanistan is right to be at the ICC. 

She continued by talking about her work as representative of two of the victims of the crimes committed in Afghanistan under the scope of the preliminary investigation. She emphasized the difficulty with providing victim statements within the timeline of Nov 20th-21stJan 2017, when bombings were going on in Afghanistan. To have no response more than a year later is a great disappointment to her and the victims. 

Later during the panel discussion, Gallagher also asserted that many practical issues must be worked out if an investigation is opened. One issue is contact with victims that are held in Guantanamo Bay. Less practical, but not less important, the ramifications of the threats from John Bolthon against the ICC must be understood: what did he mean when he threatened companies? Generally, Gallagher concluded, it is going to be an extremely difficult case, both for lawyers or prosecutors, and the global support of States Parties is needed to insulate the Court. Ambassador Rapp added, in similar sentiment as his previous statement, that accountability in the U.S. will depend on the U.S. system itself. Stating his own position, he concluded that the appropriate thing for any administration is to appoint a special counsel for the specific case.

After discussing Afghanistan, Kate Vigneswaran, Senior legal advisor at the International Commission of Jurists, continued with the situation in Myanmar. She elaborated in detail on the findings of the fact-finding mission (FFM) for Myanmar, established in early 2016. The FFM concluded that crimes against humanity and war crimes were committed in Myanmar. An investigation into genocide was warranted. Recommendations (in September 2018) included a UN Security Council (UNSC) referral to the ICC and, until the UNSC acts, the creation of an independent evidence gathering mechanism, similar to the mechanism for Syria. In response, a resolution was issued by the Human Rights Council to establish such a mechanism, for which the Terms of Reference are expected in two weeks. 

Vigneswaran expressed hope that the Pre-Trial Chamber ruling of 6 September 2018 on ICC jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh will result in the filing of an application soon. The Pre-Trial Chamber decided that the ICC has jurisdiction in cases where one element of the crime or part of such a crime was committed on the territory of a State Party, in this case Bangladesh. In addition to deportation, this rational could be applied to other crimes, such as persecution and torture. The Pre-Trial Chamber decision, however, does not apply to the many other crimes committed solely in Myanmar. 

Akila Radhakrishnan built on this when asking the audience to think about what justice means for Myanmar. Myanmar has faced a range of crimes for a very long time. The constitution of Myanmar enshrines impunity for the military. This framework must be taken into account when considering what the limited jurisdiction of the ICC can do, Radhakrishnan underlined. There is no real identified place for these cases to be transferred to, she continued, unlike with the III Mechanism for Syria that concerns viable jurisdiction cases. Therefore, she calls upon a full UNSC referral. 

While Radhakrishnan mentioned some of the challenges the investigation into Myanmar is facing (such as access in to country, gathering evidence, cooperation), she called the steps of the ICC important for pressuring the government, to “see if we create a crack in impunity”. Nevertheless, she explained that the pursuit of justice for Myanmar has to be broader and look at other venues for justice.                              

Discussing U.S. engagement with regard to the situation in Myanmar, Radhakrishnan indicated that the U.S. government has continued to use human rights language and “said the right things”, but that no concrete action to enable accountability has been seen yet, also mentioning the recent publication of PILPG’s report Documenting Atrocity Crimes Committed Against the Rohingya.

Micheal Greco, still with a focus on the U.S., therefore looked at the role of civil society and the legal community within current geopolitics. The American Bar Association (ABA), as well as other civil organizations, are vital for holding governments (including the U.S. government) accountable and for advocacy and educational purposes. 

Continuing with the situation in Myanmar, moderator Christopher Hale asked whether the jurisdiction of the ICC over the deportation of the Rohingya from Myanmar to Bangladesh is too limited. Kate Vigneswaran considers the decision on jurisdiction as an absolute positive development. While it does demonstrate a gap: crimes committed solely in Myanmar, by other groups, fall outside the jurisdiction of the Court. Kate herself would hesitate to be too cynical as she stated that we have a come a long way and that because something is happening, expectations are increased. Akila Radhakrishnan added that most of the frustrations are political: the inability of the UNSC and political work arounds. Ambassador Rapp closed the topic by stating that what is happening around the situation in Myanmar is encouraging.  

From the audience, the Counsel on Rohingya issues from the Government of Bangladesh issued a warning for the problems with witness contamination in refugee camps in Bangladesh. Kate Vigneswaran agreed that this is a concerning issue, mentioning the large amount of interviews done by PILPG for its report. The Counsel of the Government of Bangladesh and Vigneswaran moreover agreed that Myanmar appears to be concerned with the investigation of the ICC.

Side Event - “Supporting reparative justice for victims in the Rome Statute system: what States Parties can do (more)” (co-hosted by Ireland, Uganda and the Trust Fund for Victims (TFV))

Overview by Isabella Banks, Research Associate PILPG NL

Highlights:

• This side event explored how States Parties can best support reparative justice for victims of crimes under the International Criminal Court’s (ICC) jurisdiction.

• The Trust Fund for Victims (TFV) plays an important complementary role in assisting victims of perpetrators who cannot afford to pay reparations and is currently in the process of expanding to new situation countries.

• However, the TFV lacks a stable source of funding and therefore depends on voluntary contributions from the States Parties to sustain its work.

Co-sponsored by Ireland, Uganda, Mali, Finland, and the Trust Fund for Victims (TFV), this side event explored how States Parties can best support reparative justice for victims of crimes under the International Criminal Court’s (ICC) jurisdiction.  Ambassador of Ireland Kevin Kelly opened the event and explained that it was a product of a partnership between Ireland and Uganda and a TFV monitoring visit they coordinated together in 2017.

In her role as moderator, Ambassador of Chile María Teresa de Jesus Infante Caffi introduced reparative justice as a concept that goes beyond compensation.  She addressed the emerging debate about the Court’s ability to grant reparations through the Fund and invited remarks from the speakers, who included representatives from Mali, Ireland, Uganda, and the TFV.

Minister of Justice of Mali, Tiénan Coulibaly began by expressing his country’s support for the TVF and the complementary role it plays in assisting victims of perpetrators who cannot afford to pay reparations.  He emphasized the Fund’s need for resources and highlighted Mali’s voluntary contribution of 20,000 euros in 2017.

Mr. Coulibaly then introduced “Trust Fund for Victims Monitoring Visit to Northern Uganda,” a short documentary produced by the TFV and funded by Ireland.  The purpose of the visit featured in the film was twofold: to increase awareness of the importance of victims in the Court’s work and to reflect on what States Parties can do to assist the TFV.  Nine States Parties and the President of the ICC Chile were invited to the participate in the visit.

In partnership with Gulu hospital and the AVSI Foundation, the TFV provides artificial limbs, reconstructive surgery, trauma counseling, and mental health support to victims of war and gender-based violence in northern Uganda.  The speakers collectively drew attention to the heavy stigma that is attached to sexual violence and mental health issues in Uganda.  Few organizations have the capacity to provide the kind of long-term psychosomatic counseling the TFV provides to traumatized victims and their families. 

Attorney General of Ireland Seamus Woulfe reported that the delegation that participated in the monitoring visit was very positive about the work of the Fund but left Uganda with the impression that many needs remained unmet.  Mr. Woulfe stated that such needs will ultimately need to be addressed by local and national authorities through voluntary contributions to the Fund.  He announced that Ireland would be contributing 175,000 euros that day.

Ambassador of Uganda Mirjam Blaak then took the floor to draw attention to the situation on the ground.  She noted that almost no one in Northern Uganda has not been affected by the crimes perpetrated by the Lord’s Resistance Army (LRA) and that some victims may never overcome what they have seen or been forced to do.  She highlighted the International Crimes Division of the High Court of Uganda and its efforts to hold LRA leaders accountable on a domestic level in the aftermath of failed peace negotiations. Given the broad area affected by LRA crimes, Uganda’s efforts at reparative justice have focused on regional development and investment in agriculture rather than individual reparations. Uganda is also currently in the process of drafting a traditional justice bill to promote grassroots reconciliation through the Acholi ritual of mato oput.

Despite these efforts, Ambassador Blaak acknowledged that Uganda was “primitive” with respect to mental health, and that the state must do more to make psychosomatic counseling widely available.  

TFV Board Member Mama Koité Doumbia and concluded the panel with a reflection on the Fund’s work.  She noted that the Fund was intended to fill a void in justice and specifically, to fulfill its dual mandate to provide assistance and reparations to victims of international crimes.  According to Ms. Doumbia, the Fund’s primary issue is its dependence on fluctuating, voluntary contributions of States Parties to empower, rehabilitate, and restore dignity to victims.  The Fund’s lack of an annual budget is increasingly challenging as it expands its work to the Democratic Republic of Congo, the Central African Republic, and Mali in the next year. 

The first question from the audience was whether the Fund has a plan of action to work with victims in Kenya.  Ms. Boumbia replied that the TFV now has an office for Kenya in Uganda and that just a few days ago, 300,000 euros were made available to work with victims in Kenya.  She further explained that their work in Kenya had been stalled due to changing priorities but that they were now in the process of assessing the situation on the ground to ensure that the aid the Fund provided would not be duplicative.

A Swedish legal advisor then asked about the extent to which the Fund’s efforts were sustainable. Ms. Boumbia agreed that providing “handouts” was unsustainable, but stated that the Fund’s first priority was to provide victims with stable infrastructure.  She also noted that the Fund was working to pass on some of their more supported project to government institutions.

A representative from Redress then raised concern about the Fund’s ability to carry out its mandate to provide reparations, especially given its recent expansion, in spite of the denial of its recent request for a budget increase. Addressing Ambassador Blaak, she asked if the Fund had considered possible overlaps between development initiatives and the reparations needs of Ugandan victims? She provided the example of women who had children in the bush not being able to access education from a newly-built school because they did not have the required birth certificate with their child’s father’s name on it.

Ambassador Blaak acknowledged that many of the women who were kidnapped by members of the LRA had not been accepted back into their communities.  She noted that the stigma against these women was so severe that during the peace talks, some women chose to return to the LRA.  She remarked “we have lost one whole generation…it’s very hard to overcome” and agreed with the Redress representative that it was important to consider how development initiatives might be affected by this reality.  She also made a hopeful reference to the transitional justice bill that is currently being prepared in Uganda.

Ambassador Jesus Infante Caffi concluded the event with a call for a coordinated and coherent approach to reparative justice and explained that the delegation had also made this recommendation to the Minister of Justice in Kampala.

Side Event - “Investigating International Crimes at the National Level: Realizing the Promise of Complementarity in the Gambia & the Case for Specialized Expertise”

(co-hosted by Canada, the Netherlands and the Justice Rapid Response (JRR))

Overview by Annelou Aartsen, Research Associate PILPG NL

Highlights:

• The panelists agreed that the international community can strongly contribute to ensuring that national authorities are able to provide justice for its citizens and thereby ensure local ownership and accountability. 

• An example hereof is the forensic expertise offered by Justice Rapid Response to support Gambian authorities with the investigations and prosecutions of high-profile cases. 

This side event on Investigating and Prosecuting Crimes at the National Level was moderated by H.E. Ambassador Sabine Nölke of Canada. The panel consisted of the Gambian Minister Abubacarr M. Tambadou, human rights activist and son of the late Solo Sandeng Mr. Muhammed Sandeng, the Forensic Pathologist Dr. Steve Naidoo, and the head of International Cooperation at the Office of the Prosecutor Mr. Amady Ba. After a short introduction, Ms. Suomalainen, the Executive Director of JRR, highlighted that this event aims to provide a forum to discuss how national actors can act to end impunity of serious international crimes and human rights violations. Thereby, special attention was paid to the role of the international community and how the international community can support such national efforts to fight impunity on a national level. 

As an introduction, the film ‘From Fear to Freedom: the search for Justice’was showed. This film highlighted some of the issues the national authorities of The Gambia have faced since the end of its dictatorship in January 2017. As identified in the movie, one of The Gambia’s most urgent needs was to find experts in the area of forensic sciences. Through forensic pathology objective evidence of the serious crimes committed under the previous dictatorship could be demonstrated to the prosecution. However, The Gambia had limited technical and forensic capacity to address this complex case itself due to the advanced state of decomposition of the remains. As highlighted by Mr. Muhammed Sandeng in the movie, such objective evidence would reassure the Gambian people that justice is in fact done. Something which is needed to end impunity and to provide healing for the Gambian society. 

After the movie, the floor was given to Gambia’s current Minister of Justice, Abubacarr M. Tambadou. The Minister started with highlighting that the dictatorship which lasted for more than two decades had damaged the entire infrastructure of the Gambian government. Therefore, rigorous reforms were needed. Amongst others, top priorities identified by the government of The Gambia are: constitutional reform, the creation of key institutions such as an enforcement agency, reform of the criminal court, reassessing media laws, the introduction of a National Human Rights Commission, and most important of all the establishment of a mechanism to address impunity and human right abuses. While important steps are made, The Gambia faces challenges when addressing impunity, such as their limited financial means but also their need of experienced prosecutors. These were important issues for which The Gambia can use the support of (international) partners. JRR is one of the organizations which has been able to assist the Gambian government in their fight against impunity. 

The second speaker, Muhammad Sandeng, a human rights activist represented the young Gambian people and shared the youth’s view on justice and accountability. Sadeng expressed the view that most of Gambians youth sees justice as reparation, and does not focus so much on the accountability aspect. According to Sadeng the lack of expertise is one of the constraints of the Gambian justice system. He ended his statement with stressing the importance of having people tried before Gambian Courts instead of prosecuting perpetrators outside of Gambia. According to Sadeng, national trials will more strongly reassure justice to The Gambian society and provide confidence in the national judicial system. 

The third speaker, Dr. Steve Naidoo, a forensic pathologist and member of the JRR Expert Roster, focused more particularly on the relation between scientific evidence and justice. As clarified by Dr. Naidoo science is objective, and therefore can be relied upon. It is able to offer objective evidence on which a court can rely. Forensic sciences have made great advances in DNA research, which is able to contribute to the process of justice in The Gambia. Dr. Steve Naidoo ended with stating that “we have prevailing technology and we must be prepared to apply it and overcome challenges.” 

Finally, Mr. Amady Ba addressed the issue raised by H.E. Nölke on how the international community can best work with local authorities to ensure that cooperation works well. Mr. Ba replied by stating that this question lies at the heart of the Rome Statute and that there are broad and various ways to support national systems. One way through which national systems can be supported is through reinforcing relations between different states. Mr. Ba mentioned the example of the complementarity website which provides an overview of states, International Organizations and NGO’s that are active in complementarity and who can support national projects. Concrete examples of fields in which support can be provided by other countries are: sharing information and expertise on preservation of evidence, but also sharing information on how to prioritize and select of cases. 

During the question round, a question was raised about how The Gambia, with a recently collapsed government infrastructure, managed to handle all the cases. Is there a danger for a system overload? Minister Tambadou responded by explaining that the primary focus lays with building up all the governmental infrastructures in order to ensure that what had happened in The Gambia will not occur again. In terms of their relationship with the ICC and possible future collaborations, the Minister mentioned that, that is still an open question.   

Following, a civil society actor wondered whether ‘more coordination amongst society actors and the government is required’. And if there is something The Gambian government is not getting from civil society actors at the moment. The Gambian Minister responded to this question by answering that they had identified areas in which they did not have the local capacity or expertise to tackle issues at hand. In these areas The Gambian government had reached out to civil society organizations.

The next question concerned the attitude of the Gambian security sector towards the implemented reforms. Was the security sector willing to cooperate or did they resist the introduced reforms? Mr. Tambadou responded by stating that the security sector is a difficult exercise: “more often than not there will be resistance from within.” According to the Gambian Minister of Justice it is important to ensure transparency and accountability when reviewing your security services. Thereby, he highlighted that the Gambian government faced clear challenge in this respect, because Gambian security services were dominated by members of a certain ethnic group to which the former president belonged.  

Another question raised was ‘what was done to preserve evidence, and what was done in terms of witness protection? The Minister explained with regard to witness protection that there is a particular act within national law which establishes witness protection. In addition, this is an area in which The Gambia has cooperated with organization, such as the ICC, to ensure fully functioning witness protection units. The second part of the question related to the preservation of evidence was answered by Mr. Naidoo. He explained that specific guidelines of practice for technical expertise should be put in place. Such guidelines had to be decided on in advance and should be of sufficient standard to the court so the court is willing and able to work with the evidence provided. 

The last question raised during this side event related to political entrenchment and how The Gambia developed its governmental and judicial system. Minister Tambadou answered by stating that reform in The Gambia had been rather easy due to the fact that they had to build of the judiciary sector from scratch. This has contributed to the fact that nowadays Gambian courts consists of mainly Gambian judges. After this answer, Ambassador Nölke of Canada concluded the event by stating that “if we do complementarity right, and I think The Gambia is well on its way in doing it right, the ICC is out of a job. And that will be the ultimate achievement that we are working for.”

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.