Day 7: Wednesday 12 December 2018 Thirteenth Plenary Meeting of the ASP17: Closing of the ASP

Overview by Abby Roberts, Research Associate PILGP NL

Highlights:

• The ICC budget for 2019 of €144 million was adopted (€150.000 less than the independent expert body advised) in Resolution ICC-ASP/17/Res.4. 

• There was a division in opinion within the assembly as to whether the budget should have zero growth or needs-based growth. 

• Despite disagreements on the budget and omnibus resolution, a consensus was reached on both.

• The Assembly requested the Secretariat to present options for scheduling the next ASP session and requested the Bureau to decide on the date and venue for the 18thASP by 13 January 2019. 

At the thirteenth and final plenary meeting of the 17thAssembly of States Parties, States Parties came together for the adoption of the last resolutions and reports. States Parties considered the ICC’s proposed budget for 2019 of €147.55 million and the recommendation of the Committee on Budget and Finance (CBF) to approve a budget of €144.70 million. After extensive negotiations of the Working Group on budget, States Parties considered and approved, by consensus, a budget of €144.55 million for 2019, which is an increase of 0.49 per cent from 2018 (less than the 0.6 per cent recommended by the CBF and 2.6 per cent requested by the Court). 

After adoption, states were given the possibility to explain their position. Belgium, also speaking for Argentina, Belgium, Costa Rica, Finland, Liechtenstein, Luxembourg, The Netherlands, Slovenia, Sweden, and Switzerland, expressed disappointment with regard to the budget, as they had hoped for a more suitable budget closely aligned with the needs of the Court. They expressed the opinion that the negotiations did not allow them to reach a common agreement to find a budget that would allow the Court to fully implement its mandate. The budget is lower than advocated by the mandated CBF and the increase does not correlate adequately with the inflation rate and therefore Belgium believed the court has been underfunded. Given the fragile position of the Court, Belgium believed this situation needs to be addressed. Warnings have been issued regarding the vulnerable cash flow reserves and more responsible management is a must. Belgium ended by emphasizing that it is up to the States Parties, who had a shared vision 20 years ago, to ensure the Court has sufficient resources to meet the growing demands of justice.

Brazil followed and expressed their deep regret that another budget resolution was adopted with nominal growth. However, they decided not to block consensus for this budget. Brazil stated that the percentage seems small but they believed the ever-increasing budget is unsustainable and incompatible with the budgetary realities of States Parties and moreover discourages states from ratifying the Rome Statute.

Japan spoke next and noted that, 20 years since the adoption of the Rome Statute, the ICC has to mature and enter a phase of stable development. Japan believed that although the budget has continually increased, more room can be found for optimizing resources. They urged the Court to exercise strict budgetary discipline. Japan joined the consensus and urged all organs of the Court to demonstrate efficiency, as the credibility of the Court depends on its capacity and the efficient implementation of the budget.

Venezuela then took the floor and expressed its support for the zero growth approach and while this budget goes against that approach, it did not block the adoption of the budget in the spirit of consensus and so as to work constructively forward. They urged the ASP to keep working towards reducing the Court’s budget but also noted that this exercise must be achieved without sacrificing efficiency and transparency. 

The Assembly then took action on the proposed program budget for 2019 read in conjunction with the recommendation of the Working Group on the budget. This was adopted by consensus. 

The Assembly then took action on the Omnibus Resolution, “Strengthening the International Criminal Court and the Assembly of States Parties”. This resolution was also adopted by consensus. Brazil then took the floor to express its position. Brazil stated that it joined the consensus despite being deeply frustrated by the disability to come to a decision on equitable geographic representation within the Bureau. Brazil explained that although they brought forward a significantly supported and relevant paragraph, they were not able to reach consensus. However, the merits of in-depth discussion were echoed by other States Parties and Brazil will continue to raise this subject at the next meetings.  

Continuing, the Chair of the Credentials Committee, Mr. Lester Antonio Ortega Lemus (Guatemala) presented the Report of the Credentials Committee, which was then adopted. 

The rapporteur then presented the draft report of the Assembly of States Parties, including all issues discussed during the 17thsession of the ASP. The rapporteur suggested that the Secretariat compile a list of adopted resolutions and attach appendices which will contain relevant reports, declarations, and statements with an attached list of documents. The report was adopted as a whole and the edited report will be distributed. With regard to the next assembly of states parties, the Secretariat was requested to present options for scheduling the next ASP session and Bureau was requested to decide on the date and venue for the 18thASP by 13 January 2019. 

The President of the ICC, Chile Eboe-Osuji, in his final speech commended this session on being the most genial yet, despite not always reaching what they wanted. He believed in the coming years, the efforts of diplomacy will be utilized to ensure universal ratification of the Rome Statute.

The President of the Assembly of States Parties, Mr. O-Gon Kwon then spoke on the upcoming election of next prosecutor and said the collaborative process has already begun and that the election will occur at the 19th session in 2020. He acknowledged the former Vice President from Costa Rica was ending his tenure as ambassador in the Netherlands and Bill Pace was stepping down as Convenor of the CICC. He thanked delegates for their flexibility during the last few days which allowed for the resolution of numerous issues. He trusted that this will allow for the further implementation of the mandate of the Rome Statute. He noted that it is an important time for the Court as it is the 20th anniversary and the Court is facing numerous challenges. He thanked States Parties, civil society, Observer States, and the Court for their cooperation and closed the 17thAssembly of States Parties. 

Side Event – “Creative responses to International Criminal Justice - Complementarity and Capacity Building

(co-hosted by Finland, Germany, the Netherlands, Nigeria, Switzerland, and Wayamo Foundation/Africa Group for Justice and Accountability (AGJA))  

Overview by Emma Bakkum, Senior Research Associate and Jill Bähring, Affiliated Expert PILPG NL

Highlights:

• Amnesty International (AI), in its report “Willingly Unable” released on the day of the event, concludes that Nigeria is not conducting genuine investigations and prosecutions into crimes committed in Nigeria.

• Olawale Fapohunda, Attorney General of Ekiti State & chair of the Nigerian Military Human Rights Dialogue, criticized AI’s report and requested AI to stop using “nasty words” and indicated a need for more diplomacy and dialogue.

Moderated by Angela Mudukti (International Criminal Justice Lawyer - Wayamo Foundation), this side event consisted of participants which provided perspectives from civil society, the ICC-OTP, and Nigerian authorities to the topic of complementarity and capacity building. Justice Richard J. Goldstone opened the event by referring to the capacity building efforts by the Africa Group, especially in Nigeria, and mentioning certain challenges the ICC is currently facing.

Dapo Akande, Professor for Public International Law at the University of Oxford and AGJA member, elaborated on the Boko Haram situation in Nigeria. He referred to workshops held in Nigeria to assist domestic and local prosecutors and investigators Nigeria and the Nigerian army with the aim to develop their expertise in international criminal law, including sessions on e.g. superior orders and command responsibility. He concluded that while there was still room for improvement, participants in these workshops acquired an idea of the issues in international criminal law, which he finds encouraging.

Netsanet Belay, Africa program director at Amnesty International, introduced the main conclusion of AI’s report on Nigeria, titled “Willingly Unable. ICC Preliminary Examination and Nigeria’s failure to address impunity for international crimes”. The report critically assesses the ICC’s preliminary examination in Nigeria as well as the ability and willingness of the Nigerian government to investigate and prosecute crimes committed by Boko Haram and Nigerian security forces. The report concludes that there are several grounds indicating that Nigeria is not complying with its obligation to genuinely investigate and prosecute crimes under international law. According to the report, there is a lack of relevant proceedings - and most importantly, a lack of genuine efforts to bring those responsible to justice in Nigeria. 

ICC-OTP representative, Claus Molitor (Situation Analyst), shed light on the ICC’s perspective on the Nigerian case. He stated that the preliminary examination has been ongoing for eight years, while the OTP remained engaged with Nigerian authorities that cooperate with the Court. Additional reports have also been received, and the OTP was looking into a wide array of crimes committed in relation to the armed conflict in several areas in Nigeria, by both Boko Haram and the Nigerian security forces. The OTP was engaged with Nigerian authorities to find out whether proceedings have started. Mr. Molitor pointed out that several proceedings against crimes committed by Boko Haram have indeed already been started and that files have been received by the OTP. However, Mr. Molitor noted that most of these charges did not necessary relate to the cases the OTP has identified.

Following the OTP’s perspective, representatives of Nigerian authorities added their views to the discussion. Muhammad Umar, Director of Public Prosecutions for the Federation at the Federal Ministry of Justice, pointed out the complexity of the cases that result from crimes committed by Boko Haram. He noted several challenges such as the lack of knowledge within the Nigerian police forces and the difficulty of gathering admissible evidence.

Major General Yusuf Shalangwa, Director Legal Services of the Nigerian Army, continued on another note and stated that Nigeria has a professional army, established by law to protect the territorial integrity of the Nigeria and to aid civil authorities. He acknowledged the issues with terrorism in Nigeria, but underlined that the Nigerian armed forces did not engage in unlawful acts, oppression, violence, or acts contrary to international humanitarian law as a matter of policy.

Olawale Fapohunda, Attorney General of Ekiti State & Chair of the Nigerian Military Human Rights Dialogue, harshly criticized AI’s report, referring to reports by NGOs used as evidence in the Lubanga judgement which he found inadmissible. He stressed the need to verify the accuracy of the report and highlighted the need not to use “nasty” words against Nigerian officials, saying that “ranks of Nigerians are protected in its national interest”, and stressing the need for more diplomacy and communication. 

During the questions from the audience, Ms. Marchi-Uhel from the IIIM commented on complementarity and the difficulty for national prosecutions to apprehend atrocity conduct in the context of international criminal law, while there was also the possibility for prosecuting terrorism instead. She asked whether the ICC was considering supporting national prosecutions by sharing evidence in the context of crimes against humanity and war crimes.

Mr. Molitor from the OTP answered that there was no need to “domesticate” the Rome Statute, although national prosecution was made easier by doing so. He mentioned that the OTP also looked at case files from national authorities. However, it was too early to share information with national authorities in the Nigerian case, which might happen after the preliminary examination. Mr. Molitor clarified that there was communication between the ICC and states regarding situations under preliminary examination in these states. He added that the OTP also participated in a limited fashion in capacity building.

An audience member from the Federal Ministry of Justice of Nigeria commented that Nigeria was a sovereign and very responsible state. He continued saying that Nigeria spent millions of dollars in fighting terrorism, closing his remarks by asking: “How can we support terrorism?” Finally, he stated that the AI reports were one sided.

Following this, a Nigerian lawyer in the audience suggested that those representing States Parties could be a little more measured in their statements. He continued by stating that no one could really speak on behalf of the whole of Nigeria.

While Netsanet Belay from AI underlined finally that all information of the report was public and that the report clearly showed a lack of political will from Nigeria, Mr. Molitor from the OTP stressed that the OTP used a variety of sources in its investigations and that it was for the OTP to decide whether cases are admissible.

Side Event – “Justice, peace and security in Africa: deepening the role of the ICC (hosted by the Africa Network of International Criminal Justice)

Overview by Vicki Tien, Research Associate PILPG NL

Highlights:

• The ICC has faced several challenges relating to victim engagement when dealing with mass atrocity crimes. The Court should find a way to improve victim engagement during proceedings, according to Ms. Lorraine Smith van Lin

• Mr. Phakiso Mochochoko emphasized the importance of managing victim expectations and educating the general public about the international criminal law processes and reparations.

• The ICC should come up with a strategy to cooperate with the African Union, according to Mr. Phakiso Mochochoko.

Hosted by the African Network of International Criminal Justice and moderated by Elizabeth Evenson, Associate Director of the International Justice Program of Human Rights Watch, the side event aimed to discuss the role of the ICC in Africa in terms of justice, peace, and security. The main questions to be answered included: what lessons can the ICC learn from Africa after 20 years? Should the ICC adapt and improve its intervention strategy in Africa in the next 20 years? How can the ICC strengthen ties with the African states, the African Union and the civil society in the next 20 years? 

After Ms. Evenson introduced five panelists, Ms. Mama Koite Doumbia, member of the Board for the Trust Fund for Victims spoke first. Following her, Ms. Lorraine Smith van Lin from Redress discussed the key issues around victims and victim engagement with the ICC. As the ICC is moving away from Africa as its primary focus, Ms. Smith van Lin questioned whether or not the ICC still has an interest in ensuring accountability for African victims. And if yes, she asked, what the future of the engagement would look like. Ms. Smith van Lin claimed that a large component of individuals looked to the ICC for hope and the possibility of ensuring accountability, which they were not able to gain at the local level. In reality, however, the Court has faced several challenges relating to victim engagement when dealing with mass atrocity crimes. Ms. Smith van Lin used the Bembacase as an example and she criticized the way the Court dealt with victims as many victims were ‘shocked’ by the lengthy proceedings. Ms. Smith van Lin then moved on to ask another question regarding the possibility of using the evidence collected by the ICC elsewhere outside the Court, such as local courts. Following the question, Ms. Smith van Lin addressed the importance of ensuring reparations for the victims at the domestic levels and called for the support from the international community. 

Dr Dr. Benson Olugbuo, Executive Director of the CLEEN Foundation, spoke next and discussed what the ICC can learn from preliminary examinations in Africa. Dr. Olugbuo first gave a brief background on what the Court has done for preliminary examinations. Then he addressed a policy paper on PE from 2013 and the key point from the paper, according to Dr. Olugbuo, was the policy on engagement (e.g. how the prosecutor should remain independent and neutral). Dr. Olugbuo then moved on to discuss the issue of delay in preliminary examinations and he argued that the process of preliminary examinations is imagined and not crystalized. 

After Ms. Julie Somda, from the Burkina Faso Women Lawyer’s Association provided her insights, Mr.Phakiso Mochochoko, Head of the Jurisdiction, Complementarity, and Cooperation Division at the ICC, focused on victim expectations and the issue of the complementarity. Mr. Mochochoko first stressed that it is essential to manage expectations of victims toward the Court and ensure that victims have realistic expectations of criminal law process and reparations. On the issue of complementarity, Mr. Mochochoko emphasized that the ICC is not a capacity-building institution and that it is not the Court’s mandate to build capacity at domestic level; rather, he believed it should be the responsibility of states to take up such challenges. 

The event was followed by discussion between the panelists and the audience. A question from the audience was raised about the relationship between the Court and the African Union (AU). Mr. Mochochoko responded by suggesting to come up with a strategy to cooperate with the AU, but he also shared his personal view on the matter. He believed the relationship between ICC and the AU is unlikely to improve. At the end of the event, Ms. Smith van Lin reiterated the importance of African victims and called on civil society to send a message to the Court: “African victims matter!”

Side Event – “Towards accountability for the war crime of starvation in internal armed conflict” (co-hosted by Switzerland and the Oxford Institute for Ethics, Law & Armed Conflict))

Overview by Phedra Neel, Research Associate PILPG NL

This event focused on the pending amendment proposed by Switzerland to include the intentional starvation of the civilian population in the Rome Statute for non-international armed conflicts (NIAC) as this is currently only considered a crime under the Rome Statute for international armed conflicts (IAC).

The moderator, Elizabeth Wilmshurst of the Chatham House, announced to cover three topics, with the use of the panel members: Brian lander, Deputy Director of the World Food Program, Gonneke de Ridder, Deputy Head of Humanitarian Affairs, Department for Stability and Humanitarian Aid, Dapo Akando, Co-Director of the Oxford Institute for Ethics, Law and Armed Conflict and Daniel Klingele, Deputy Director if the Directorate of International Law, Federal Department of Foreign Affairs Switzerland. 

The first topic addressed was the relationship between hunger and armed conflict, especially in NIAC. Brian Lander explained that hunger has increased over the years, after decreasing for a while. Today, 812 million people are facing food insecurity and this insecurity is caused by armed conflicts. Armed conflicts changed over the years and have become more of an internal nature and more complex than ever. The conflicts cause more people to flee, which increases food insecurity and vulnerability and it takes longer to recover. The use of starvation as a means of warfare has also increased, as for example Syria so sadly shows. This change in warfare caused us to change how we deliver goods, we moved from ground suppliers to air suppliers which is more costly. 

Therefore, Brian Lander stated that it would make a difference if starvation during a NIAC would be defined as a crime. Addressing the ambiguity between IACs and NIACs is a good thing, increasing accountability is a good thing and increasing our ability to negotiate is a good thing. Reference to IHL and other legal regulations helps in these matters.

Ms. Wilmhurst asked the panelists to respond to opposing voices saying that there are already articles in the Rome Statute that could be used to prosecute the crime of starvation in a NIAC. Dapo Akanda, professor of Public International Law at Oxford University, responded that indeed technically speaking other articles could be used, but that these all include extra hurtles to overcome. For example, starvation can be part of a genocide, but then the special intent requirement needs to be established. The same goes for crimes against humanity where the need to establish a higher policy. Including a separate crime of starvation during a NIAC would eliminate these hurtles. 

Furthermore, making starvation a separate crime would increase the stigma to engage in starvation, making an analogy with sexual and gender based violence. In the end, the inclusion of a crime in the Rome Statute aims to prevent the crime from happening in the first place. A representative from the World Peace Foundation wanted to add that such a stigmatization is helpful in the recovering process for victims as well as this helps them to stop blaming themselves and recognize that they were victimized. Again the analogy was made with sexual and gender based violence.

This crime would find its basis in customary international law, as is shown by the International Committee of the Red Cross’s database on customary international law. This is especially of importance when knowing that these regulations would also apply to UN Security Council referrals.

The second topic discussed concerned the concrete steps that need to be taken to include the crime of starvation in the Rome Statute. Mr. Klingele explained that the proposal has been presented in April and that they are encouraged by the positive reactions and support. Some states however expressed concerns that there are already too many amendments to the Rome Statute. Thus, further in-depth discussion is needed and will continue next year.

Lastly, the parallel initiative in the UN Security Council was discussed. Gonneke de Ridder explained that the Netherlands, in preparation for their seat in the UNSC has drafted Resolution 2417, which was eventually adopted unanimously. This Resolution had three important goals: to affirm the link between conflict and hunger (which was surprisingly hard to agree upon), to call for action on IHL violations, and to underline the importance of safe and unhindered access for humanitarian aid relievers and lastly, to condemn those responsible for the use of starvation and to call for accountability.

Side Event – “Launch of the ICC Office of the Prosecutor’s report on Preliminary Examination Activities 2018”

(co-hosted by Bulgaria, Niger, Norway, Senegal, Slovenia, Tunisia, Uruguay, and the ICC Office of the Prosecutor (OTP))

Overview by Emma Bakkum, Senior Research Associate PILPG NL

Highlights:

• ICC Prosecutor Ms. Fatou Bensouda launched the OTP’s report on Preliminary Examination Activities of 2018 and discussed lessons learned from the past year.

• Ms. Bensouda stated that threats made against the ICC would neither influence decisions of the OTP nor deter the OTP from its work. States and civil society should stand ready to support the Court, she added.

ICC Prosecutor Fatou Bensouda launched the Office of The Prosecutor’s (OTP) report on the 2018 Preliminary Examination Activities during this side event on the fifth day of the 17th Assembly of States Parties.

Bensouda opened the event by reiterating that the aim of this annual report is to enhance understanding of the core activities of the preliminary examinations and to further transparency of the OTP activities in these examinations. She touched upon the current status of the preliminary examinations: three new examinations are opened (The Philippines, Venezuela, Myanmar/Bangladesh), two situations are referred for preliminary examination (Palestine and Venezuela), one preliminary examination is closed (Gabon), and the Prosecutor requested authorization to proceed with an investigation in the case of Afghanistan. Furthermore, the OTP continued its preliminary examinations of the situations in Colombia, Guinea, Iraq/United Kingdom, Nigeria, Palestine, and Ukraine.

Bensouda underlined the effort that went into these investigations notwithstanding the limited resources of the OTP. She indicated several lessons learned from this year’s preliminary examinations: First, the ICC and its supporters need to be ready to face upcoming challenges. She added that we live in a world where war and conflict lead to reported violence, and each time the question asked is: what is the ICC doing about this? The ICC needs support of all States Parties for the Court to face the demands and challenges of justice.

Following, Bensouda explained the complexity and duration of preliminary examinations (PEs). She stated that PEs involve a dynamic process and each situation has to be addressed on its own, there is no prescribed duration for preliminary examinations. Factors that affect the duration are complexity and the extremely limited resources available to the OTP. However, Bensouda stressed that the PE process sets the stage for future investigations. Thus, “time spend on PEs is not wasted. It is invested in future investigations.” Furthermore, the OTP stated to seek building synergies between the stage of preliminary examination and investigations, in order to preserve and protect sources of evidence. Continuing with the topic of resources, Bensouda, noting that millions of victims have high expectations on what the ICC should deliver, underlined that it is extremely difficult to prioritize among victim groups. The Rome Statute does not provide authority nor guidance to do so. 

Finally, Bensouda stressed the principle of complementarity as an important factor on the duration of preliminary examinations, referring to Guinea and Colombia as examples.

Bensouda concluded with thanking her staff after having underlined that preliminary examinations require time and support from all those involved.

Several questions arose from the full room of audience about situations in e.g. Palestine and Afghanistan as well as crimes committed in Nigeria and Mexico. Specific attention was drawn to the threats made against the Court. Bensouda responded that threats would neither influence decisions of the OTP nor deter the OTP from its work. The important work the OTP was mandated to do should not be stopped because of intimidations or threats. States and civil society should stand ready to support the Court, she added.

Answering a question from the audience with regard to PEs aiming at complementarity, Bensouda stated that this was a goal of the preliminary examinations process. As much as the OTP could, it tried to encourage domestic jurisdictions to investigate and prosecute those responsible for international crimes, she noted referring to the example of Guinee and Colombia. James Stewart, Deputy Prosecutor, added to this, that the OTP discovered that in some situations, complementarity could be reached through the admissibly assessment.

Referring to the situation in Afghanistan, a question was related to the earlier mentioned synergy between the PEs stage and investigation stage and what the OTP has been able to do in this regard. This was followed by question on the exclusion of the situation in Afghanistan in the 2019 budget: if an investigation is opened, how is the OTP going to have the proper resources? Bensouda answered that the application had been made and that it was now up to the judges to come to a decisions. The OTP cannot take any action to pre-empt that decision. In these cases, the OTP could look at the contingency budget to be able to move with a situation since the OTP cannot formulate a budget withouth a decision. However, she noted, mapping has been done and steps have been taken to prepare. Bensouda concluded on the topic of Afghanistan that the change of the Pre-Trial Chamber has affected the duration of the decision upon her request.

In response to questions about the crimes committed in Nigeria, the OTP indicated that it continues to assess the situation and that interaction with national authorities was ongoing. Relatedly, Bensouda answered a question with regards to the ICC’s relation with the African Union, stating that this relationship has improved. Bensouda noted the efforts that have been made to reach out to the AU but that the dialogue needs to be continued.