Side Event – “Cooperation with the ICC: What the ASP and UNSC must do” (co-hosted by Ireland and Institute for Security Studies (ISS))

Overview by Annelou Aartsen, Research Associate PILPG NL

Highlights:

• Phakiso Mochochoko: “The question is not what the ICC can do about cooperation. What is it that States Parties can do to enhance cooperation with the ICC?  States should take measures which can streamline the process of cooperation with the court.”

This event was co-hosted by Ireland and the Institute for Security Studies (ISS). The panel consisted of Kirsten Meersschaert (Coalition for the International Criminal Court), Kevin Kelly (Ambassador of Ireland at The Hague), Allan Ngari (Institute for Security Studies), Matt Cannock (Amnesty International’s Centre for International Justice), and Phakiso Mochochoko (Head of the Jurisdiction, Complementarity and Cooperation Division of the ICC). 

After some introductory statements by Kirsten Meersschaert, the ambassador of Ireland started off with highlighting that cooperation is the absolute key to the success of the Court.  The non-execution of Arrest Warrants is proving to be one of the biggest non-cooperation challenges the ICC currently faces. It damages the credibility of the court and also influences States Parties’ commitment to the Rome Statute. The United Nations Security Council (UNSC) and the Assembly of States Parties (ASP) are two institutions which play a vital role in enhancing cooperation with the ICC.

In sequence, Allan Ngari, Senior Researcher for the Institute for Security Studies, discussed what role the UNSC and the ASP can play in order to enhance cooperation with the ICC.  Referring to the preliminary findings of the ISS’s research on cooperation with the ICC, Mr. Ngari identified diverse recommendations which can enhance the cooperation of states with the court. Mr. Ngari’s first recommendation concerned the UNSC and their role to urge states to cooperate with the ICC. As specified within the study of the ISS, there are no good reasons as to why the UNSC cannot impose an obligation on all Member States to cooperate with the ICC. Moreover, Mr. Ngari highlighted that official statements should be made through SC Resolutions. Alan ended his contribution by stating that: “it is time that the UNSC takes a critical look at its own actions in terms of enhancing the work of the ICC.” 

Matt Cannock, the third panelists of this side event, opened his contribution by stating that “full and timely cooperation goes to the heart of the ICC’s fulfilment of its mandate.” Nevertheless, there remains a general feeling of weakness around the cooperation regime in the ICC statute. The ASP is unable to sanction non-cooperating states. This, among other reasons, results in a system of cooperation that relies more heavily on ‘carrots than on sticks’.  What then, as posed by Mr. Cannock, can the ASP do to ensure that states cooperate with the court?  He answered this question himself by stating that the existing procedures, running from Emergency Bureau Meetings to discussion of non-cooperation cases at the ASP, should be exhausted more often. As clarified by Mr. Cannock, the current procedures in place have never been exhausted to its full extent. Therefore, there is no need to think about adapting or strengthening current procedures, but there is a need to think about what the ICC already has at its disposal and work with that. Moving on with the discussion, Mr. Cannock stressed that the President of the ASP and the UNSC should talk and cooperate with one another more often in order to ensure states commitment and cooperation with the ICC. Additionally, Mr. Cannock noted that States Parties and the court should not overlook the role of NGO’s and civil society to press for cooperation with the ICC. Mr. 

Kirsten Meersschaert shortly recapped Matt Cannock’s points by stating that quite a large array of tools is available within the existing toolbox of the ICC, however there is a necessity to take them out and actually use them. 

The last panelists, Phakiso Mochochoko, started with stating that the current criticism faced by the ICC, such as criticism on the lengthy investigations, should also be directed towards States Parties. States parties play an essential role in facilitating the work of the court. Mr. Mochochoko moved on by highlighting that States Parties currently do a good job in cooperating with the ICC and that they should ensure that no refusals to cooperate should arise in the (near) future – something that, according to Mr. Mochochoko, states increasingly begin to realize.  Most urgent is to create streamlined processes for cooperation, which can greatly enhance the investigations of the ICC. 

One of the questions asked by the audience addressed the current disfunction of the UNSC, which consists of 3 members that are antagonistic towards the ICC.  Are there other relevant ways, not through the UNSC, through which the ASP can organize and coordinate their actions – for instance, through regional organizations such as the EU and the AU?  Mr Mochochoko responded to this by noting that the ICC currently cooperates with the EU and the AU, however, the information they usually request lies in the hands of states and not so much in the institution itself.  In addition, the AU itself it not homogenous, which makes it harder to cooperate. 

Another question referred to the panel was what the ICC in more practical terms can do to enhance cooperation.  In particular, what kind of incentives they can give to states. Mr. Mochochoko responded to this question by stating that there needs to be a political will amongst states to understand that it is in their personal interest to provide information to the Court.  In addition, it was highlighted by the panel that there should also be a focus on ‘the carrot’: the UNSC should, for instance, make public statements on cooperation with the ICC to encourage it. 

Side Event – “Victim’s right to be heard: How to strengthen victim participation in the Arab World” (hosted by Lawyers for justice Libya))

Overview by Abby Roberts, Research Associate PILPG NL

Highlights:

• From the perspective of Libyan civil society, the main barriers to victim participation are the lack of utilization of Arabic in preliminary proceedings and on the ICC website as well as the lack of effective implementation of arrest warrants.

• Potential solutions to alleviate the low levels of victim participation are workshops and extended trainings around what the ICC is and what its processes.

• There are frustrations within civil society as it has had to pick up the slack on behalf of the court for victim outreach

This side event was a panel discussion hosted by Lawyers for Justice in Libya and centered on the topic of victim participation. The panel members were as follows: Tareg Ben Ramadan - Representative of Libyan civil society, who works in Libya to document war crimes and crimes against humanity; Fadi El Abdallah - Head of Public Affairs Unit at the ICC; Philipp Ambach - Chief of Victim Participation and Reparations Section of the ICC; Alison Smith -  Legal Counsel and Director of International Criminal Justice Program at No Peace Without Justice; Paolina Massidda - Principal Counsel of the Office of Public Counsel for Victims. The panel was moderated by Elham Saudi - Lawyers for Justice in Libya.

Tareg Ben Ramadan’s opening speech was about perceptions of the ICC in Libya and the reasons for these perceptions. He described the victims’ perception of the ICC as relatively distrustful, saying we view this perception in the minimal number of victims that have actually come forward. He cites one of the main obstacles to victims reaching out to the ICC as the language barrier before trial in receiving complaints and admissibility hearings, as Arabic is underutilized. Other barriers include the general lack of understanding regarding what the ICC is and does, as well as navigating the website which is only available in English and French. The barriers to victim participation also impede the ability of civil society to function alongside the ICC. Documentation, which is a role of civil society and vital to the function of the ICC proceedings, is difficult to do given the victims’ distrust of the ICC. He offered the following as potential changes to facilitate victim participation: finding ways to use Arabic in pre-trial proceedings and on the website, capacity building workshops and extended training for civil society and victims regarding what the ICC is and what its processes are, and potentially opening a representative office in Tunis.

Fadi El Abdallah spoke of the ICC’s outreach capacity. He opened by saying that 
public information of the ICC is intended to be accessible on a global scale, and for that reason, French and English are used in court proceedings and on the website. He tries to engage on a pan-Arab level with relevant media sources as well as written newspapers and academia. However, he is the only one on the Public Outreach team that speaks Arabic and recruiting anyone else would require further resources. El Abdallah says the ICC is doing what it can with the resources it receives. With regards to the use of Arabic, he makes the point “If we start with Arabic, why not continue with other languages?”. The ICC simply does not have the resources to do so. Furthermore, the website will need to be updated in future with changing inclusion of the crime of aggression and this will affect the translation.  To try and overcome this, He emphasizes the need to focus the ICC’s limited resources on cases where Arabic is relevant to make the case materials available in Arabic.

Paolina Massidda addressed ways to improve victim participation. She sees this as a problem of what victims know and how we can improve their knowledge. She views this burden as not only on the ICC to make more information available in Arabic but to also find partner organizations that know the ICC to help spread the information. She argued that the ICC needs to find ways to outreach not only in Libya but in the diaspora.  

Fadi El Abdallah then brought up what he termed “the elephant in the room”: warlords are not sufficiently afraid of arrest warrants as they haven’t seen them be effective which makes victims lose trust in the ICC. There is not a motivation for participation if there hasn’t been concrete evidence of the ICC’s efficacy.  

The moderator, Elham Saudi, then spoke on behalf of Lawyers for Justice in Libya. She claims there is a fatigue and a lack of respect for the way the court operates. She, in her capacity in LJL, does a lot of PR for the court which she doesn’t view as the best use of resources. She also spoke on the language barrier, as she acknowledges there are relevant documents in Arabic on the ICC website, but one has to understand English or French in order to navigate the website. She suggested putting a link for Google Translate on the website to aid in its navigation. 

Alison Smith was next to speak and was in agreement raised by Elham Saudi. Alongside the Google Translate link, she suggested crowdsourcing funds for the translation of documents.  She also spoke on the difficulties in outreach, saying that it needs to start in the preliminary stages of proceedings to be effective, and if outreach starts before actual proceedings then engagement is more likely like in the case of Sierra Leon. The states parties have given the Court a mandate to do outreach during the preliminary examinations. If there is a lack of resources to do this, then there needs to be pushback by the Court to get the resources from the states parties that wrote the mandate. 

Fadi El Abdallah responded to Alison Smith’s suggestions. With regards to crowdsourcing, he said that even if the ICC pursues it here would still be a need to verify the translation, which would require comparable resources to just translating it to begin with.  He was not in favor of implementing the google translate link on the webpage, as he said that anyone with a computer had the ability to use google translate on their own. As for outreach in the preliminary stages of the proceeding, he said outreach at this stage is difficult as sometimes an investigation will not lead to anything further.  

The panel was brought to a close with the panelists responding to the following questions of what the Court can do to maximize victim satisfaction and what kinds of arguments would persuade states parties to devote more resources. 

Philipp Ambach responded by saying there needs to be a focus on informal cooperation.  There may be times the Court cannot start engagement during preliminary proceedings due to restrictive resources or policy, but they could do more passive engagement such as training or workshops.  He also emphasized that arguments for more resources need to be framed by what the stakeholders value. 

Fadi El Abdallah gave two options for framing of potential arguments. One would be emphasizing that it is not a request for a huge increase and providing examples that the Court is working to maximize its efficiency. Another potential argument is to remind the states that there were real and genuine problems that drove the creation of the court, and it cannot serve its intended purpose without adequate resources.

Alison Smith concluded the panel with two points: First, being near the situation is important to maximize victim satisfaction, even if the closest that can be achieved is establishing a field office in a neighboring country; and second, that an encouragement for states fronting the necessary funding could be that there may be higher costs in the long-term when you have to build up trust with the victims later.

Side Event – “Preliminary Examinations: impact, policies and practices” (co-hosted by Norway, Center for International Law Research and Policy (CILRAP), Leiden University and Human Rights Watch)

Overview by Isabella Banks, Research Associate PILPG NL

Highlights:

• NGOs accustomed to human rights documentation face a number of challenges in contributing evidence that is relevant to the preliminary examinations of the ICC.

• There is disagreement on whether or not preliminary examinations should be used as a complementarity strategy to advance national justice. 

• The duration of preliminary examinations is due in part to the scope and complexity of ICC situations and in part to resource constraints of the Office of the Prosecutor (OTP). 

• The primary purpose of preliminary examinations is not to encourage national proceedings but no inform the Prosecutor’s decision about whether or not to open an investigation.

Co-hosted by Norway, the Centre for International Law Research and Policy (CILR), Human Rights Watch (HRW), and Leiden University, this side event focused on the challenges faced by those who participate in the International Criminal Court’s (ICC) preliminary examination process. Chair and Norwegian Ambassador Martin Sørby opened the event by explaining its origins: the “Quality Control in Preliminary Examination: Reviewing Impact, Policies and Practices” report co-published by CILR and the “Pressure Point: The ICC’s Impact on National Justice” report published by HRW.

Before the roundtable began, Ambassador Sørby introduced the speakers: Jimena Reyes of the Fédération Internationale des ligues des droits de l’Homme (FIDH); Emilie Hunter of the Case Matrix Network; Amitis Khojasteh of the ICC Office of the Prosecutor (OTP); Elisabeth Everson of HRW; Justice Richard J. Goldstone, a former judge in South Africa and prosecutor at the International Criminal Tribunals for Yugoslavia and Rwanda; and Professor Carsten Stahn of the Grotius Centre for International Studies at Leiden University.

Ms. Reyes discussed the primary challenges that NGOs accustomed to human rights documentation face in contributing to an ICC preliminary investigation. The first is the change of evidentiary standards. Local capacity building is necessary to ensure that legal actors in the places where the crimes were committed are able to contribute meaningfully to the investigation. With reference to a capacity building workshop that FIDH hosted in Colombia prior to the ICC’s first visit there in 2004, she described how these efforts have a direct impact on the quality of sources and information identified.  

The second challenge is building trust between local lawyers and NGOs. In order to contribute to a preliminary examination, NGOs must obtain a wide universe of cases and identify patterns. This is not possible without working relationships with those who have access to these files. She concluded by raising the question of whether local lawyers and NGOs should even be conducting criminal investigation in light of the security risks for victims. 

Dr. Hunter agreed that the evidentiary standard at the ICC is higher than that of human rights investigations and added that international crimes usually occur on a scale that exceeds the limits of human rights documentation practices. For example, there is a tendency for human rights organizations to rely heavily on witness statements, whereas international criminal investigations typically depend on data and advanced analytic techniques. Criminal proceedings have different legal requirements than human rights proceedings. She therefore called for international criminal law focused documentation practices for the purposes of ICC communications. She spoke about how Case Matrix Network– which provides capacity development services to national and international actors – works with proof-charts to empirically map case law and show the different types of evidence that can be used before international tribunals. Their strategic intention is to address linkage issues and help identify a pattern of crime that connects multiple incidents, the organizations involved, and their structures and hierarchies of control. She concluded by acknowledging that there are limitations to what NGOs can achieve in this regard but also noted that new methods such as open source data and data mining represent significant opportunities.

Ms. Khojasteh of the ICC OTP first of all acknowledged the contribution that NGOs make to the preliminary investigation process. She stated that the information submitted by NGOs can greatly inform the ICC’s assessment of whether or not to open an investigation. She also noted that her office has seen an improvement in the quality of the research submitted by NGOs in terms of content, structure, and methodological clarity. She attributed this partially to the OTP’s recent efforts to promote transparency and clarify what is expected of NGOs.  

According to Ms. Khojasteh, the ICC does not expect NGOs to conduct criminal investigations – especially considering that the “reasonable basis” standard is much lower than the standard used in court. The OTP does not task NGOs with information collection or outsource its assessments. The office has an open-door policy with international NGOs and is happy to provide guidance about what kind of information is most useful but does not have excessive expectations. Responding to early observations about differences in sources of evidence, she affirmed that witness statements have limited utility in many cases and that social media, satellite imagery, videos, and photos are more relevant.

Responding to Ms. Khojasteh’s comments, Justice Goldstone warned that as a friend and supporter of the ICC he would be critical. He stated that the duration and consistency of preliminary examinations send an important message to victim. As a former international prosecutor, he criticized the excessive duration of many of the preliminary examinations of the past and the way they were used as an “almost permanent” mechanism of complementarity. He called for greater consistency and consideration for the victims. In conclusion, he emphasized the importance of the ICC’s credibility and remarked that this was an area for significant improvement if the Court wanted to receive support from States Parties and attract new States Parties. 

Dr. Stahn spoke next, noting that preliminary examinations are under-regulated in the Rome Statute and that they should therefore be handled as a “construction site.”  Referencing research conducted at Leiden University as well as an ongoing blog debate on EJIL Talk!, he stressed the need for the OTP to exercise a certain amount of discretion in selecting cases given the flexibility of the “gravity” threshold. He surmised that the ICC can take one of two approaches to preliminary examinations: it can either treat them as a filter for investigations, or it can regard them as having value of their own. If the second approach is taken, the OTP may need additional resources in order to be effective. He added out that the impact of new technologies such as open source and e-evidence should be studied in greater detail.

Ms. Khojasteh responded to the most common criticism of preliminary examinations: their duration. She was sympathetic to the frustrations of relevant and agreed that there is room for the OTP to improve. She noted that in order to understand the duration of preliminary investigations, it was important to be aware of complexity and scope of the situations which come before the ICC. She also drew attention to the OTP’s very limited resources, and noted that all members of her team work on more than one preliminary examination at a particular time. She questioned whether it was a good idea for the ICC to prioritize certain preliminary investigations – and if so – on what basis? Lastly, she reminded the panel that time was not wasted during the preliminary investigations as they often had a significant impact on subsequent investigations.

Ms. Evenson expressed support for the possibility of preliminary examinations being used secondarily as a mechanism of complementarity, but was quick to qualify this statement. She highlighted the “Pressure Point” report published by HRW and summarized its findings: expectations of what the OTP can achieve need to be very realistic because of its limited resources. The report analyzes four case studies where there have been national investigations but no trials (with the exception of Colombia). She said that the case studies represent a challenge for the OTP but also highlight some positive steps that have been made in the four countries as a result of the OTP’s involvement.  

Addressing Ms. Khojasteh, Ms. Evenson recommended deeper engagement and greater public presence on the part of the Court. She also stressed the need for balance between keeping a space open for national investigation but also taking a decisive action when the process was excessively delayed. She suggested that greater confrontation with state authorities may be necessary to achieve this. She also pointed out that the OTP cannot do this alone, and called on States Parties to support and amplify the OTP’s efforts.

In a final round of comments, each speaker contributed their final thoughts. Ms. Reyes acknowledged the significance of the OTP’s budgetary constraints and stressed the need for clear benchmarks to facilitate the move to investigation in cases involving a robust but inactive judiciary. Dr. Stahn proposed that the OTP take on fewer preliminary examinations and conduct them with greater intensity to reduce the existing bottleneck. He also warned that using preliminary investigations as a mechanism of complementarity may have the unintended side effect of state actors catering to ICC demands rather than pursuing a broader accountability initiative. Ms. Khojasteh responded that while it can be a policy goal, the primary purpose of preliminary investigations it not to encourage national proceedings but no inform the Prosecutor’s decision about whether or not to open an investigation. Ms. Evenson added that the ICC is actively working to make the early stage of preliminary examinations more efficient. n conclusion, Justice Goldstone stated that if preliminary examinations are to be used as a strategy for complementarity, the ICC should be transparent about this.

Seventh Plenary Meeting of the ASP17

Overview by Emma Bakkum, Senior Research Associate PILPG NL

Immediately following the sixth plenary meeting on the 20thanniversary of the Rome Statute, the General Debate continued with seven NGOs to issue their statements. All NGOs, including Human Rights Watch (HRW), the American Bar Association (ABA), and the Nigerian Coalition for the International Criminal Court reaffirmed their support for the Court. They moreover called upon the ASP to strongly support the Court. 

The Human Rights Center/Georgian National Coalition for the International Criminal Court focused on the level of impunity for international crimes committed in Georgia and underlined the need for outreach in the region since there is little available knowledge on the ICC. The Commission Mexicana de defensa y promoción de los Derechos Humanos,emphasized the ongoing crisis in Mexico in relation to the violence and impunity for crimes committed such as drugs trafficking and torture. The Transnational Justice Group called for attention to the situation in Afghanistan and the many victims as a result of the conflict. Its representative stated that the culture of impunity in Afghanistan is one of the reasons for the ongoing conflict. “Let justice not just be a word”, he concluded. The Philippines National Coalition for the International Criminal Court finally challenged the States Parties to speak for justice and condemn those governments who undermine it. 

Sixth Plenary Meeting of the ASP17

Overview by Vicki Tien, Research Associate PILPG NL

Highlights: 

• Issues of universality, geographical representation, and gender imbalance within the Court’s staff were widely discussed during the plenary session. 

• Several countries and panelists expressed their concerns over the threats made against the Court.

• Many states call upon the Court to improve its efficiency, transparency, and accountability. 

• Professor John Dugard issues a critical speech, calling the ICC Eurocentric and protective of EU interests. He urged the ASP to respond to the threats made by the U.S.

At the 6thplenary meeting of the 17thAssembly of States Parties on 7 December 2018, a session dedicated to the 20thanniversary of the Rome Statute, panelists addressed the changes and the challenges that the International Criminal Court (ICC) has faced since the adoption of the Rome Statute in 1998. The panel session aimed to look back at 20 years of the Rome Statute and to identify the solutions needed for the ICC to carry out its mandate effectively in the following decades. 

The panelists for this session included: H.E. Mr. Sergio Ugalde, Ambassador of Costa Rica to the Netherlands, H.E. Ms. Ms. Brândușa-Ioana Predescu, Ambassador of Romania to the Netherlands, H.E. Ms. Namira Negm, Legal Counsel of the African Union, H.E. Ms. María Teresa Infante Caffi, Ambassador of Chile to the Netherlands, Mr. John Dugard, Professor of Leiden University, and Mr. Bill Pace, Convenor of the CICC. After the initial speeches of the panelists, an interactive part with states and NGOs followed. 

The plenary session started with a short video featuring numerous delegates from states or organizations around the globe who all expressed their determination to fight against impunity along with the Court. 

Notably, issues of universality, geographical representation, and gender imbalance within the Court were widely discussed during the plenary session. On the issue of universality, Mr. Sergio Ugalde declared that universality would continue to be a key issue for the Court. Some states, such as New Zealand, emphasized that the principle of universality lies within the heart of the Court. The AU Legal Counsel, Ms. Negm, on the other hand, warned ICC Member States to think twice when speaking about universality as it may lead to more withdrawals from the Rome Statute, and, according to her, it is necessary to examine the issue from a different angle. As for the issues of gender imbalance and geographical representation, Mr. Ugalde urged the Court to battle the perception that it is only focused on the African continent. Brazil and Bangladesh also underlined the problems regarding geographical representation and gender imbalance within the Court. Brazil called on the ASP to correct the ICC’s imbalanced geographical representation, as according to Brazil, diversity would ensure stability and is crucial for a stronger and more legitimate international court.

On the relationship between the ICC and international organizations, Mr. Bill Pace, Convenor of the CICC, lauded the work of the European Union for its relationship and cooperation with the Court and called on the Court to establish similar relationships with other international organizations, specifically the African Union. A call also made by Ms. Predescu, emphasizing the need for better cooperation between international institutions. Meanwhile, South Africa encouraged the Court to create more dialogue with the African Union. As for the relationship between the ICC and UN Security Council, the African Union claimed that the Security Council is a political body and must limit its intervention for a judicial body. 

On the head of state immunity issue, AU legal counsel Ms. Negm addressed the relationship between Article 27 and Article 98 of the Rome Statute and she argued that Article 27 has encroached on Article 98. 

Panelists and multiple countries expressed their stance on the threats made against the Court. For instance, the delegate of Palestine addressed the threats directed at the Court, especially criticizing the U.S. for political bullying and an attitude of hostility. The delegate went on to underline the importance for the ICC to remain shielded from politics and interference, calling the Preliminary Examination in Palestine a litmus test for the Court, now more than ever. France claimed that pressures and threats against the ICC are intolerable. CICC Convenor Mr. Pace likewise recognized serious threats against the Court and called for diversity of perspectives to solve the problem. Human Rights Watch urged the Court not be deterred by the threat of the U.S. It encouraged all States Parties to stand united in order to protect the Court’s independence from external interference. 

While Professor Dugard also criticized the threats made by the U.S., particularly by U.S. President Donald Trump and U.S. National Security Adviser John Bolton, he was even more critical towards European states, calling the ICC Eurocentric and protective of European interests. He strongly called upon the ASP to respond to the U.S. threats and to protect the Court boldly and bravely. His criticism expanded to NGOs, including the CICC, who should not be reluctant to voice criticism according to him. He concluded by stating that the ICC, encouraged by the ASP must ensure that vulnerable states are protected by vigorous and not unduly delayed prosecutions because “only then can the ICC complete its goals.” 

Despite the threats directed at the Court, many states as well as panelists agreed that the Court should accept positive criticism for improvements. Sierra Leone lauded the work done by the Court but claimed that the Court is not immune to positive criticism. Liechtenstein, in response to Dugard’s statements, made clear that it does not see the ICC is driven by politics, but sees that the Office of the Prosecutor is independent and driven by the law. Liechtenstein did express disappointment with the way States Parties are supporting the Court: States Parties can and have to do more in protecting and supporting the Court. 

Many states, including Austria, New Zealand, and Italy, encouraged the Court to improve its efficiency, transparency, and accountability and urged all States Parties to unitedly protect the independence of the Court in order to allow the Court to fulfill its mandate. As the Chilean ambassador emphasized: “We have to foster a culture of accountability.”