Eight Plenary Meeting: Consideration of the Budget and the Audit Reports

Overview by Kathryn Gooding, Research Associate PILPG NL

Highlights: 

  • The Court emphasized its desire to balance the need to save money, with the need to ensure that the Court is effective in delivering its mandate. 

  • A major concern for the Court is the number of States Parties in arrears.

The 8th plenary meeting of the 17thAssembly of States Parties concerned the proposed budget of the ICC for 2019. The Registrar ofthe ICC, Peter Lewis, emphasized that the ICC understands that many states have undergone budgetary cuts and that their ability to contribute to the Budget is increasingly limited. However, he noted that the ICC was given a mandate by States Parties, and to be able to effectively carry out its mandate, the Court must have a sufficient budget to be effective. 

The Registrar noted that the ICC aims to reduce costs and enhance its efficiency, by improving its responsiveness and flexibility. The proposed budget for 2019 is claimed to be an important step in that direction. Peter Lewis noted that it is the lowest budget in years, as the ICC was able to identify means to reduce costs. However, he emphasized that the Court’s ability to reduce additional costs depends on the volume of work it is dealing with, and this must be considered in light of the fact that the Court is operating in 11 situations, and that there are hearings in three trials. Therefore, Peter Lewis argued that the Court needs resources to deliver its essential mandate, but that the Court also needs to strive for disciplined and efficient organization. 

The Chair of the Committee on Budget and Finance (CBF), Hitoshi Kozaki, put forward that the Court proposes a programme budget of €147,55 million for 2019, which represents an increase of 2.6 per cent compared to the 2018 budget. Kozaki noted his concern regarding the status of contributions to the budget. He was concerned that there are a number of outstanding contributions to the budget, totaling €19.2 million.   

The meeting continued with a consideration by the Auditor of the audit reports of the financial statements of the ICC, the financial statements of the Trust Fund for Victims, and the management of the Court’s human resources. The external auditor noted that the financial statements were a faithful reflection of the Court and the TFV. The main expenditure of the Court was found to have been staff costs, which increased by 6.4 percent compared to 2018. The Auditor mirrored the concerns of Kozaki that there are major threats to the cash flow of the Court due to the outstanding contributions of some States Parties. He therefore recommended the ICC to strengthen the means of recovering arrears. The Auditor, finally, with regard to the Court’s management of human resources, noted recent successes in gender parity and geographical representation within the Court and referred to the ten detailed recommendations to the Court with regard to human resources. 

Side Event –“Commemorating 20 years of the ICC in Africa through cartoons” (co-hosted by the United Kingdom and Journalist for Justice))

Overview by Sally Eshun, Intern PILPG NL

The renowned and award-winning Kenyan cartoonist Godfrey Mwampembwa presented his work during this side event entitled “Commemorating 20 years of the ICC in Africa through cartoons” and explained to the attendees the current state of artists doing editorial cartoons in Kenya and East Africa as a whole. He explained that they are exposed to verbal abuse, threats and self-censoring by their editors. Particularly, the critique of the ICC having Situations in mainly African countries is being tackled in the cartoons but also the influence the ICC has on domestic politics in countries like Kenya, the Central African Republic, or Côte d’Ivoire. Mr. Mwampembwa noted his appreciation of how editorial cartoons can initiate discussions around issues in a way that other means of media cannot, particularly with an issue that is so multi-faceted like the ICC and its relationship with African countries.    

Side Event –“From Impunity to Accountability? A New Transitional Justice Policy for Mexico

(co-hosted by Centro Diocesano de Derechos Humanos “Fray Juan de Larios”, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, Familias Unidas en la Búsqueda y Localización de Personas Desaparecidas - Piedras Negras/Coahuila, Fundación para la Justicia y el Estado Democrático de Derecho, I(dh)eas - Litigio Estratégico en Derechos Humanos, Instituto Mexicano de Derechos Humanos y Democracia, and Open Society Justice Initiative)  

Overview by Abby Roberts, Research Associate PILPG NL

Main Highlights: 

  • Mexico is a unique case with regards to transitional justice as it is neither a strictly post-authoritarian situation nor a post-conflict situation. 

  • The new government of Mexico has expressed a commitment to pursuing transitional justice, but it will require the support of the international community as a whole.

Descriptive Summary of the Event: 

This panel was moderated by James Goldston - Executive Director of the Open Society Justice Initiative.  The panelists were José Antonio Guevara - Executive Director of the Mexican Commission for the Defense and Promotion of Human Rights, Deborah Ruiz Verduzco - Head of Civil Society Initiatives for the International Commission on Missing Persons, and Pablo De Greiff - United Nations Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence.

The discussion began with Deborah Ruiz Verduzco providing the historical context for the violence currently occurring in Mexico. She noted that Mexico was under a one-party rule for many decades with no space for opposite or civil society, a weak judicial system, and military control of the country. These circumstances resulted in many high-profile atrocities and have provided for the strengthening of organized crime and violence. After the transition of there were promises regarding peace that were not completely fulfilled.  However, there have been progressive reforms for human rights with the transition, especially relinquishing the hold the military has on the country and allowing more room for civil society.  Between 2006 and 2015, in two administrations, there were 150,000 killings related to organized crime after the Mexican government decided to have a confrontation with certain groups in organized crime which gave a carte blanche to the military and police.  There were also a multitude of extrajudicial killings, which generally are not recorded.  As of April 2018, there are 38,414 people on the Official Registry of the Disappeared. These numbers do not take into account the 150,000 kidnappings that have occurred or any human trafficking victims. As torture is being used as an ordinary method of criminal investigation, since the launch of the 2007 National Security Strategy the complaints regarding torture have quadrupled, with only 5 convictions.  

José Antonio Guevara was then asked to speak on who is perpetrating the violence and how is it taking place.  He began by noting that in 2016 then President Calderon declared war on narco-trafficking.  This was thought to be a figure of speech, but the reality is over 600,000 armed forces have been deployed throughout this conflict. Some think this situation is marked by crimes against humanity committed by both sides.  Hundreds of thousands have been killed and others tortured, and we know a large number of these people have been killed in a confrontation with the armed forces. There is also a public information register which shows the armed forces have detained over 70,000 people.  The armed forces do not have the mandate to detain them, but they say they have caught them in the act.  In Mexico, people can be arrested and detained for 80 days to prove a link with a crime, which is not in accordance with international law.  

Guevara explained that there is a high intensity of armed forces perpetrating the violence.  He went on to discuss why there has been so little accountability for these acts.  One of the factors is that there is a lack of independence for district attorneys.  Those acting in certain districts are not held responsible by the overarching state even though they knew crimes were being committed. The state did nothing to install competent bodies, and when there were functioning bodies the state ensured investigations were not carried out.  The official investigations are not independent which is why we see the lack of impunity and why the international community is demanding an independent investigation.  

Pablo De Greiff then spoke on whether or not Mexico is in transition, and, if so, what it is transitioning from/to.  He began by discussing the models of modern transitional justice, which was originally shaped by the post-authoritarian southern cone and now often occurs in post-conflict situations.  Mexico is unique, as it is not undergoing a strictly post-authoritarian transition nor a post-conflict transition. It is a mixture of conflict and organized crime, which does not fit in the usual phenomena of transitional justice.  He believes that the semantics of transitional justice are not important, but what is important is that it invites a comprehensive response to issues of redress.  His recommendation is that under the transitional justice agenda, rather than fixating on particular measures, we start by considering the importance of the relevant types of ‘rights’ that are at issue in Mexico. The fundamental question is then which institutional forms are most conducive under the peculiarities of the Mexican situation. De Greiff believes the rhetoric of transitional justice might be useful, as long as there is not a complete repetition of past circumstances that might not harmonize with the Mexican situation.  This will require creativity not only on the part of Mexico but on the part of the international community as a whole, as Mexico is not experiencing these problems in a vacuum and should not be left alone to deal with them. 

Next, José Antonio Guevara was asked to speak on the promises made by the new government.  The new president has met with victims’ organizations to promise a mechanism to tackle impunity, justice for victims, independence for public prosecutors, backing the United Nations as they support Mexico.  There have already been meetings by a working group to discuss the conflict and there has been little determined by it with regards to what happened and who are the victims, which is why it would be helpful to have a truth commission.  This way there could be a common narrative about what happened and what could be done to prevent this in the future.  This group has received notice that there had been some progress in implementing the needed measures, and they are hopeful for the future. 

He then spoke on the question of what Mexico can do by itself and if there a need for international assistance. He believes that Mexico has elements of the political will necessary to remedy what has happened, but it will need international support from civil society to keep this will going.  Without involvement and funding, there will not be a sustained effort. Mexico is also a major international actor, and there no way to sustain this political will without a commitment by other states to express support for these endeavors. He outlined two challenges: making rapid progress on individual cases that need attention and taking a long-term view of structural changes and reforms.  

Pablo was then asked what an international mechanism on accountability was going to accomplish.  He noted that there is no country with a normal judiciary that could take on the number of cases that Mexico will face. Law schools, when they train investigators, teach them how to prosecute murder and similar crimes as stand-alone cases. There are very few instances of broad prosecutorial cases that do not deal with isolated instances but rather patterns, so as to disarticulate networks of criminality.  There are some instances of states that have this capacity, like Bosnia, Argentina, and Colombia.  This is not a spontaneously developed capacity, and this is where the mechanism can help.  Having the government as a partner to the agreement would signal a deeper commitment to this mechanism - or at least the potential would be much greater.  This would have to be a mixed endeavor of both international and national actors which would facilitate ownership of the outcome and actions.  Pablo spoke in favor of implementing this type of mechanism in addition to an ICJ investigation. 

Pablo then spoke on the concept of amnesty in this situation.  He explained that amnesty is a unique concept in situations involving organized crime rather than a more typical armed conflict.  He believes the fundamental limitations of amnesty ought to be respected; there should be no amnesty for crimes against humanity and international crimes, and this should not preclude other avenues for people accused of these crimes receiving reduced sentences for collaboration to combat organized crime. 

Guevara also spoke on the topic of amnesty.  He discussed an article written by a close friend of the President which claimed that the possibility of crimes against humanity receiving amnesty is excluded.  In the security policy, aspects of the idea of amnesty, pardon, or cooperation were discussed.  Children, women, and similar categories may be offered amnesty.  Guevara believes there are benefits to this type of cooperation. This can help find the disappeared, and in return, the cooperators could get reduced sentences.  He believes that amnesty may also have to apply to corruption, as it is endemic in the government and, at this point in time, you cannot completely flush it out.  

The last topic of discussion was with regards to what the role of the ICC could be in Mexico. José has always believed the role of the ICC is important in the fight against impunity.  He believes independent public prosecutors could focus on the smaller crimes and the ICC can focus on the higher level atrocities and actors.  Deborah noted that there has already been a specific case referred to the ICC by the senate, which signals a willingness to involve the ICC more in the future. 

Side Event – “10 Years After the War: Victims of the Georgia Situation” (co-hosted by Georgia, the Netherlands, and Justice International)

Overview by Kathryn Gooding, Research Associate PILPG NL

This side-event was held by the Open Society Georgia Foundation, Justice International, The Georgian Center for Psychosocial and Medical Rehabilitation of Torture Victims, and Georgian Coalition for the ICC.

Nika Jeiranashvili of Justice International introduced the ICC’s Georgia Situation, which concerns the alleged crimes committed in the course of the international armed conflict between Georgia and Russia in 2008 over South Ossetia. He noted that this conflict resulted in the torture and death of civilians, and the ethnic cleansing of 28,000 Georgians. It also led to the annihilation of their villages, and has led to the occupation of 20% of Georgian territory. The ICC carried out a preliminary investigation for eight years and in October 2015, the prosecutor requested authorisation proprio motuto lead an investigation. 

The scope of the Prosecutor’s investigation is to look into crimes allegedly committed during the 2008 conflict. The investigation is looking into allegations of murder, forcible transfer of populations, persecution, sexual violence and the arbitrary detention of civilians which could constitute crimes against humanity. The investigation is also looking into allegations of attacks against civilians, willful killing, pillage, destruction of property, attacks against peacekeepers, and the torture of prisoners of war which could constitute war crimes. These allegations concern the territory in and around South Ossetia, involving Georgian, Russian and South Ossetian forces. 

Nika Jeiranashvili continued by noting a number of the challenges facing the ICC investigation. First, no one knows what is happening on the ground, because there is an informational vacuum as to what steps have been taken in the investigation. Also, there is the non-cooperation of Russia, which means a lack of access to the conflict zone, the non-execution of arrest warrants, political pressure, and interference. There has also been a significant time-delay between the cessation of hostilities and the commencement of the investigation, of about eight years. The security situation on the ground is also precarious, with allegations of continued cases of torture and murder, which creates difficulties for the security of victims and witnesses. There is also a lack of international support for NGOs involved in the investigation efforts. 

A number of Georgian NGOs created a report, “August Ruins” to explore violations of fundamental human rights and international humanitarian law to submit to the European Court of Human Rights. Specifically, the report looks at the socio-economic issues of the victims, and also it aimed to raise awareness among victims about the ongoing legal processes, as victims have no information regarding the ICC and the ongoing investigation. The NGOs visited internationally displaced persons camps (IDP), and estimated that there are about 20,000 victims. They met with the victims in the camps and distributed leaflets to provide information regarding the ICC to the victims. They carried out many investigations with victims for the report, and many victims expressed that they did not think that the ICC would be able to hold Russia to account for the crimes committed against them.

Major socio-economic problems were indicated by the report, such as problems related to housing conditions in IDP settlements, lack of clean water, lack of access to medical services, and a lack of employment opportunities, which has left the IDPs in dire living conditions and poverty. 

The Georgian Coalition for the ICC also created a report to support the investigation for the Office of the Prosecutor. Half of the victims interviewed had not heard of the ICC, and  any information that they had about the ICC was extremely limited. Only 3% of the victims had actually met with ICC staff, therefore the NGOs emphasise that more work is needed in terms of awareness-raising activities and public information activities on the part of the ICC. Also in terms of the expectations of the victims of the ICC investigation, a large number of victims did not believe anything would come out of the investigation, and that they do not believe that anyone from Russia will be punished as a result of this investigation. 

A number of recent developments are worrying the Georgian NGOs. The ICC investigation has been highly politicised by domestic Georgian politics, and there has been ‘fake news’ spreading regarding the investigation. The Georgian NGOs asked the court to make a statement to explain to the public what is actually happening, in an attempt to depoliticize the investigation, however the Court remained silent and ignored the developments on the ground. The Georgian NGOs claim that the ICC is at risk of losing legitimacy because of this.

In light of this, the NGOs strongly encouraged the Court to do effective outreach to Georgian society at large. The Court must closely monitor the process and developments on the ground. 

A number of questions were posed to the panel. One question concerned more concrete measures that the Court could take to effectively outreach to Georgian society, without being drawn into politicised debates. Nika Jeiranashvili mentioned problems with the ICC field office. He said that the head of the field office only speaks Russian and this is deeply problematic, as many of the victims have had crimes committed against them by Russian forces. Therefore, he advised that there should be a head of field officer that can speak Georgian to ensure sensitivity in meeting with victims and that victims feel that the ICC is acting impartially. He also argued that the ICC should have meetings with Georgian media, and appear on Georgian television shows to ensure that accurate, non-political, information is being spread to the population at large. He argued that at the moment, the fact that the ICC is ignoring the situation on the ground damages the situation in Georgia. 

Side Event – “El rol de América Latina y el Caribe ante la Corte Penal Internacional: contribución y compromisos a los 20 años de la adopción del Estatuto”

(co-hosted by Costa Rica and Coalition for the International Criminal Court (CICC)))

Overview by Juan Manuel Martinez Rojas, Research Associate PILPG NL

Main Highlights: 

  • The relationship between the Latin America and the Caribbean region with the ICC it’s closer than ever before. There is an increased interest from the ICC in the region and several cooperation efforts in the multilateral relationship.

  • Some States parties from the Latin America Region feel underrepresented in the organs of the ICC despite having contributed with the first prosecutor and other managerial positions.  

Descriptive Summary of the Event: 

The event was organized by the Coalition for the ICC and Costa Rica. Ambassador Sergio Ugalde from Costa Rica saluted the public and highlighted the significant contributions from Latin America to this court despite the criticism of it being an European centered court. He stressed that the region has the highest percentage of ratification from all regions of the world. He finds this system of criminal justice relevant to the world and to his region because Latin America acknowledges the relevance of complementarity which strengthens the regional judicial systems. He considers that there’s still room to grow and several challenges, but the region is heading in the right direction. He highlighted the fact that the region has contributed with precedents in the ASP, the first prosecutor of the ICC, and he claimed that the region has been a relevant players for the development of the ICC.

He pointed out big challenges for the ICC because powerful actors have been questioning the current legal order based on rules and agreements and the ICC has become a target for these powers. This issue demands, in his words, the full support and commitment with the ICC, particularly from Latin America. He finalized his statement talking about the issue of gender balance as a relevant one nowadays. He salutes the work of the region but he believes that it has to carry on in this matter.

After the Ambassador, Michelle Reyes from CICC took the floor and affirmed the significance of holding the side-event in the framework of the 20thanniversary of the Rome Statute. She highlighted that small and medium democracies, especially the Latin American countries, have been crucial for the Court’s development. For her, the region has a foundational role in the elaboration of the Rome Statute and has worked hard in advocacy for universality. She noted the high levels of local implementation of the Rome Statute.  

Then, Mariana Pena from the Open Society Justice Initiative talked about the current situation of the ICC and its relationship with Latin America. She confirmed that the region has significant contributions in the process of creation, ratification and establishment of the ICC. But also, she said that the times have changed with the work of the ICC and it is expanding from Africa going to East Europe, Middle East and Asia, and also to Latin America. She pointed out a huge change in the international order but a survival of the Latin American motto: ‘never again’. She thinks that region does not want international crimes to be committed again in Latin America nor any region of the world. 

She stressed that there is a growing role of the Latin American countries in The Hague’s working groups for the ICC. Despite this, she thinks that the ICC is far away from the region, and the region is far away from the ICC. Whilst there have been some efforts from Latin American universities, she considers that the relationship between the ICC and the region is still distant in terms of knowledge and awareness about the Court and its work. For her, there is a reality: there is not sufficient knowledge of our region, our legal system and our culture within the ICC. She highlighted the fact that people from the region mainly have to learn French or English to access the ICC framework. Regarding the attacks the ICC has recently received, she stressed the region can play a leadership role. She sustains that despite its long-lasting support to the ICC, Europe nowadays seems refusing to confront those main powers that direct the attacks.

She finished her intervention talking about the next Prosecutor election. She mentioned that the Open Society Justice Initiative has worked on that matter and participated in The Hague Working Group. She said that her organization has suggested the creation of an Election Committee formed by 7 to 9 experts that are able to assess the candidatures. She believes that a crucial factor for the election should be the knowledge of investigations and criminal prosecution and also the management skills of the candidacy. She mentioned that the previous election was criticized due the little time for consults and that this Committee, if created, would need funding and she said that the current budget does not include any financing for this. 

Antonia Pereira de Sousa from the ICC External Relations and Cooperation Officer said that there is a need to reinforce universality, since there are still several countries that have not yet signed nor ratified the Rome Statute. She stressed that from last year there is a reinforced relationship between the Court and the region through several multilateral discussions and technical missions. She further mentioned the increased laws on the framework for cooperation, for instance the ones from Dominican Republic, Costa Rica and Chile. She affirmed that the ICC Registry wants to support these processes through their experience with other states. She highlighted the importance of focal points or periods of cooperation, in quick and simplified processes. She finally remarked that it is important to reinforce the geographic representation in the Registry. 

Felipe Michelini, President of the Council of the Trust Fund for Victims started his intervention recognizing the civil society as a key player in this system. He stressed that the contribution to the Rome Statute from the region has been clearly demonstrable as 28 states from the Latin America and Caribbean region have ratified the Statute and the region has had several managerial positions in the ICC and has contributed through legal doctrine, activists and the role of their diplomats.  Despite positive elements, he highlighted the low regional contributions to the Trust Fund and the region’s endemic history of human rights violations, such as violence against women or the eternal discrimination against youth and children. For him, the Rome statute is important because it has raised the standards terms of in rejecting and judging genocide, war crimes and crimes against humanity. He finished his intervention by affirming that the language is a key issue and that despite of that there are contributions in terms of academy and professionalism in favour of the ICC.

Finally, Judge Luz del Carmen Ibañez addressed the public and she talked about the dream of international justice from a Latin American woman’s perspective. She noted that there’s a prominence of the western European approach of the legal interpretation. She said that victims’ representation and reparations are lacking.  She said that the region has an enormous legal and scholar production about the victim’s participation and reparations. This focus can also be seen in the Interamerican Human Rights System. For her, the ICC is a teenager: vulnerable and problematic. And in her opinion, the role of Latin America towards maturity of the ICC is leadership. To do this, she proposed: (1) intense development of positive complementarity through an outreach effort by the ICC and the use of the Spanish language, (2) equal geographical representation in the ICC staff, (3) contributions from the Latin American legal system in reparations and victim participation, and (4) empowering Spanish as way to enriching the ICC. 

Following the speakers from the panel, some Latin American States made declarations. Ecuador mentioned the organization of the ‘The ICC and South America’ Seminar in Quito. The Quito Declaration was an important expression of the support from the region to the ICC. Ecuador has ratified its commitment and support to the ICC in its fight against impunity. Brazil also mentioned the Quito Seminar finding it to be constructive and discussing the need for more geographic representation at the ICC. Brazil also mentioned that the delegation is proposing a debate in the omnibus negotiators to increase that representation also in the ICC Bureau. Chile focused on the autonomy of judges and the requirement of confidence from States.

The questions at the end of the session included how to manage the expectations of victims, to which Judge Ibanez noted the prioritization of dignity, truth, and justice before reparations. Richard Dicker of Human Rights Watch also noted the contribution of Latin America to the Rome Statute due its legitimacy and experience in dealing with transitional issues. He argued that the region could also contribute to the future of the ICC by emphasizing its justice claim and credibility.