ASP18 Second Plenary Meeting: General Debate

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 1  (2 December 2019)

Name of the Event: Second Plenary Meeting (General Debate) 

Overview by: Tanushree Nigam, Signe Wolf Børm, and Leonore ten Hulsen, Junior Research Associates PILPG-NL

Main Highlights:

Topics discussed by States Parties included:

• Cooperation 

• Independence and impartiality of the Court

• Review of the Court by independent experts

• Elections of the new Prosecutor and Judges 

• Threats against the Court

Summary of the Event:

During the first part of the General Debate, common topics discussed by States Parties were cooperation, complementarity, and universality of the Rome Statute. Various States Parties thanked the Court, ASP, and other States Parties for their long-term commitment to the court and the international criminal order to ensure international justice. South-Africa, however, expressed apprehension at the role of the Court as it believed that its peacemaking efforts in Africa were being hindered by the Court’s active role in the region. South Africa also mentioned that its proposal to withdraw from the Rome Statute is still under deliberation by its parliament.

Almost all states urged non member states to sign the Statute. Many States Parties congratulated Kiribati on acceding to the Rome Statute. Additionally, several states, including Austria, Luxembourg, Sweden, and Ireland expressed support for the amendment proposed by Switzerland to include the starvation of civilians in non-international armed conflict as a war crime under Article 8 of the Rome Statute.

Zambia pointed out that the contradictory interpretations of Article 27 and 98 of the Rome Statute should be settled to ensure effective cooperation between the parties. In this regard, it called for the creation of a working group of experts to look into the interpretations. 

Palestine's Minister of Foreign Affairs expressed concern at the length of the preliminary examination in Palestine. He stated that the protracted nature of the examination has contributed to impunity for atrocity crimes.

States, including Bangladesh and Sweden, noted the atrocities committed against the Rohingya people and lauded the ICC for its action in the situation in Bangladesh/Myanmar. 

Many states also underlined the importance of victim participation and reparations and welcomed the increased focus on victims and reaffirmed their commitment by announcing their voluntary contributions to the Trust Fund for Victims. 

Some States Parties referred to the efficiency and budget of the Court. States Parties spoke about the fact that the budget should be clear and sufficient. Korea argued that budgetary effectiveness and discipline must be a core priority. Slovakia mentioned that effective means for financing should be ensured, because without resources the Court will not be able to fulfill its global justice goals.

Moreover, the idea of an independent review of the ICC was welcomed by various states, including Slovenia, Ireland, Luxembourg, Norway, Denmark, and Vanuatu. Korea argued that the review of the ICC should be state-party driven. States including Botswana and South Africa also expressed support for the Resolution in this regard to improve the performance of the Court.

The election of the next Prosecutor and Judges in 2020 was touched upon by several states, including Ireland, Uruguay, France, Norway, Malawi, Germany, Ecuador, Denmark, Austria, the UK, and The Netherlands, urging for the election to be fair and transparent. Ecuador proposed having public hearings as a part of the process of electing judges. 

A number of States Parties, such as The Netherlands, Austria, Iceland, Ireland, Trinidad and Tobago, Sweden, Uruguay, and Slovenia referred to the Court’s work with regard to sexual and gender based violence, and stressed the importance of eradicating SGBV.

Finally, Vanuatu called for the “radical idea” to amend the Rome Statute to include ‘ecocide’ as a crime under ICC jurisdiction. Vanuatu requested other member states to consider this idea and to give it proper consideration. They argued that it is in the interest of the international community to prosecute climate damaging acts as climate change poses an existential threat to humanity. 

Points of action for the next meeting: 

States Parties Colombia, Sierra Leone, El Salvador, Bulgaria, Timor-Leste, Australia, and Andorra were supposed to make statements at the second plenary meeting but their statements are postponed to tomorrow’s third Plenary Meeting. 

ASP18 Side Event: The Hague Principles on Sexual Violence – Translating the lived experience of sexual violence survivors into law and policy

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 1 (2 December 2019)

Name of the Event: Side Event, The Hague Principles on Sexual Violence – Translating the lived experience of sexual violence survivors into law and policy

Overview by: Francisca De Castro, Junior Research Associate PILPG-NL

Main Highlights:

• Call It What It Is campaign launched during the 17th ASP which developed The Hague Principles with help from the input of survivors. 

• The Hague Principles consist of three documents: 

  • Civil Society Declaration on Sexual Violence 

  • International Criminal Law Guidelines on Sexual Violence 

  • Key Principles for Policy Makers on Sexual Violence 

• Important developments with regards to the prosecution of sexual crime, notably the Bosco Ntaganda Case.

• The treatment of Sexual Violence must remain victim based 

Summary of the Event:

The panel, moderated by Ms. Melinda Reed from the Women’s Initiatives for Gender Justice, the hosts of the event touched upon the importance of a survivor-centric approach to sexual violence, as well as the importance of accountability and prosecution of sexual crimes.

Opening remarks were made by the Swedish Director-General for Legal Affairs H.E. Mr. Carl Magnus Nesser. He discussed Sweden’s feminist foreign policy launched in 2014 in response to the perceived systematic discrimination. This perspective has focused on ensuring that women can reach their rights through representation and resources based on their reality. In his view, perpetrators must be held accountable as impunity for sexual violence has important consequences for victims and their relatives. He addressed the importance of involving men and boys to combat gender related sexual violence. He emphasized the importance of strengthening the capacity of countries to bring perpetrators to justice, as well as facilitating the experience exchange when investigating and prosecuting crimes.

The Prosecutor of the ICC, Fatou Bensouda spoke about her office’s efforts in prosecuting sexual violence offenders, and the historic sentence delivered by ICC trial judges in the Bosco Ntaganda Case. 

The Special Advisor on Gender to the Office of the Prosecution, Patricia Sellers highlighted the importance of jurisprudence in understanding sexual violence, as it means outlawing crimes that were previously taboo. 

Furthermore, Toufah Jallow from the Toufah Foundation gave a poignant retelling of her experience as a survivor of sexual violence by an authoritarian leader. After having testified in the national truth commission, she has advocated for the usage of explicit language as to uncover the taboo surrounding sexual violence. She also urges to create a system of justice that is victim-centered and creating a safe space for victims, but also to consider these survivors as activists. 

The panel continued with Mr. Wayne Jordash from Global Rights Compliance who set forward a series of questions that were to be posed when talking about sexual violence, and defining more effective measures. Some of these questions where touched upon in the Civil Society Declaration. He tackled some of the difficulties that have been encountered in the international prosecution of sexual violence, like the failure to prosecute Lubanga for sexual crimes. 

ICC Judge Howard Morrisson then took the floor to make a statement on the challenges of judging cases of sexual violence. For one thing, the cultural consequences of these crimes have prevented victims from speaking out. But also, the cultural differences make it so that evidence is hard to obtain. 

Finally, the panel was closed by remarks from the Ambassador of Australia to The Netherlands H.E. Mr. Matthew Neuhaus concluded by urging present delegations to support the accountability for gender based violence, particularly during the general debate. 

 The Hague Principles on Sexual Violence can be found here.

ASP18 First Plenary Meeting

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 1 (2 December 2019)

Name of the Event: First Plenary Meeting of the Assembly of States Parties (‘ASP’)

Overview by: Francisca De Castro, Raghavi Viswanath, Junior Research Associates PILPG-NL

Main Highlights:

• Opening statement by the President of the Assembly of States Parties, H.E O-Gon Kwon.

• ICC President Chile Eboe-Osuji and Prosecutor Fatou Bensouda delivered statements. Both of them discussed the recent threats to the integrity and independence of the Court and called for strong support from States Parties. 

• ICC Prosecutor Bensouda invited States Parties to attend the launch of the OTP’s 2019 PE report on Friday December 6. 

• The Chairman of the Board of Directors of the Trust Fund for Victims updated the ASP about developments relating to the TFV’s reparations and assistance mandate.

The President of the Assembly of States Parties, Mr. O-Gon Kwon, opened the 18th session of the ASP. Applause from the ASP followed after O-Gon Kwon invited States Parties to congratulate the Pacific Island state of Kiribati for acceding to the Rome Statute. The ASP President adopted the agenda for the week after a silent prayer. 

In his opening remarks, O-Gon Kwon touched upon the need for state cooperation, the election of a new Prosecutor in 2020, and the Review of the Court. Regarding the Review of the Court, O-Gon Kwon stated that the Court acknowledges challenges and the need to face them. He discussed efforts in this regard, including a retreat of the Bureau in June this year to consider review of the Court followed by the creation of the Matrix (“Matrix over possible areas of strengthening the Court and the Rome Statute System”) by the ASP presidency, which forms a starting point for constructive dialogue. A draft resolution on the Review of the Court, including Terms of Reference for an Independent Expert Review (IER) covering (1) governance, (2) the judiciary and judicial process, and (3) preliminary examinations, investigation, and prosecution, will be introduced during a plenary meeting later this week. On Tuesday December 2 at 08:30, informal consultations on this draft resolution will be held. 

Following the ASP President, ICC President Chile Eboe-Osuji took the floor. He lamented the recent threats against the Court’s integrity and independence, directly referring to threats made by the U.S. He urged States Parties to do “all that it takes – and be prepared to do more – to counter these threats, in all their ramifications.” He furthermore briefly touched upon the Review of the Court and Rome Statute System and urged states to keep the Review in the proper perspective. The value of the ICC should not be forgotten (“The ICC is indeed a most profound and valuable multilateral achievement”) and he urged states to see the ICC as an independent institution to give effect to the rule of law. States cannot demand ‘results’ that favor their interests in the ordinary sense. Instead, he stressed on the need to evaluate the Court’s performance objectively. He mentioned that the Court’s work had produced significant deterrence (especially in the context of the electoral violence in Africa).

The ICC Prosecutor, Ms. Fatou Bensouda, then updated the ASP on recent developments at the OTP. She welcomed the authorization to open an investigation in Bangladesh/Myanmar and stated that she has designated a team to prepare and commence work without delay. She furthermore informed the ASP of progress in the past year in investigations in for instance the situation in Iraq/UK, Colombia, and the Philippines. She highlighted the challenges of striking the right balance between the budgetary constraints faced by the OTP and the need to expand the reach of the OTP. Bensouda also touched upon threats against the Court and expressed the need for more robust, strong, and united voices from States Parties. She finally invited States Parties to attend the launch of the OTP’s 2019 Preliminary Examinations Report during a side event on Friday December 6.

Full statements of the ICC President and Prosecutor can be found here 

The Chair of the Board of Directors of the Trust Fund for Victims (TFV), Mr. Felipe Michelini then reported to the ASP about the TFV’s work and developments in the implementation of the ICC’s reparations decisions. Notably, reparations have been disbursed to over 197 victims in the Katanga case. The TFV is currently collaborating with UNESCO to identify victims who are eligible to receive reparations in the Al Mahdi case. Michelini stressed the need to separate the reparations programme from the Court’s assistance mandate. In respect to the latter, he informed the ASP that progress had been made in identifying partners in Cote d’Ivoire and the Central African Republic. The TFV also expects to release reports on the progress made in the situations in Kenya and Georgia. 

In the opening session, the ASP furthermore decided that the State of Palestine is set to replace Japan as a Bureau member from the end of the 18th session of the ASP until the end of the 19th session of the ASP, elected by consensus six members of the Committee of Budget and Finance (CBF), filled by consensus one vacancy in the CBF, and designated by consensus one member to the Advisory Committee on Nominations of judges. 

Finally, the first plenary meeting saw the start of the general debate with the EU’s statement by Finnish Minister of Foreign Affairs, Pekka Haavisto. Mr. Haavisto called upon States Parties to preserve the integrity and independence of the Court (and expressed concern about measures taken against ICC officials) – through financial contributions, increased ratification of the Rome Statute, and the adoption of more effective national legislation. The EU’s statement also touched upon the Review of the Court and the upcoming judicial and prosecutorial elections, which Haavisto indicated should both be transparent processes. 

ASP18 Side Event: Launch of the AFLA quarterly: Lessons from Gbagbo & Blé Goudé case and ICC Review

18th Session of the Assembly of States Parties to the Rome Statute

Day 1 (2 December 2019)

Name of the Event: Launch of the AFLA quarterly: Lessons from Gbagbo & Blé Goudé case and ICC Review (Side Event co-hosted by Uganda and Africa Legal Aid)

Overview by: Raghavi Viswanath, Junior Research Associate PILPG-NL

Main Highlights:

The Gbagbo and Blé acquittal calls for a more nuanced review of prosecutorial strategies and the sentencing practices of the Court. Importantly, the Court should steer clear of the risk of politicization. Instead, the Court should focus on the need to preserve the right to family life of the accused, encourage positive complementarity through domestic prosecutions and incentivize States to accept released/acquitted defendants.

Summary of the Event:

Ambassador Blaak-Sow (Ambassador of Uganda to the Benelux and European Union) and Ambassador van den Ijsel (Netherlands Ambassador to the ICC and OPCW) welcomed all participants to the launch of the AFLA quarterly, and spoke about how the 18th session of the Assembly of States Parties was expected to serve as a crucial signpost for the review of the Court’s performance. The first panelist was Dr. Namira Negm (Legal Counsel of the African Union). Dr. Negm first commented on the timeliness of the AFLA quarterly which exposes the Court’s prioritization of the situations in the African continent. In her view, Gbagbo was a tipping point in this trend. Notably, she discussed how Gbagbo prompted many allies of the Court to call for reforms in prosecutorial strategies. The case also warns of the damage that unsubstantiated indictments cause both to the reputation and the resources of the Court.

This was followed by a short presentation by Evelyn Ankumah (Executive Director, Africa Legal Aid). She emphasized on the need for nuance in criticism. The ‘beyond reasonable doubt’ and ‘presumption of innocence’ standards are not new to criminal trials. However, the application of these standards in Gbagbo was unique – because of the heinousness and scale of the crimes, the interests of the victims, and the interests of States that often wish to see particular persons prosecuted. Therefore, the key question should be how to minimize the risk of politicization – both on the OTP and the judges. The political background of the case should not be the basis for reduced evidentiary standards. To this end, she warned against measuring the success of the Court by the number of convictions. In the long run, the Court will only have legitimacy if it gives due regard to the interests of fairness. 

Chief Taku (Immediate Past President, ICC Bar Association; Defence Counsel before the ICTR, SCSL and the ICC) and Mariana Pena (Senior Legal Officer, Open Society Justice Initiative) then called for a reconsideration of the arrest and detention policies of the Court. Gbagbo’s continued detention even after the acquittal would inevitably lead to double victimization. In her presentation, Mariana Pena highlighted how the calls for a review of the ICC were not triggered merely by the recent string of acquittals. These calls are grounded in broader systemic failures of the Court’s detention policies, its limited understanding of the limitations on the ground, and the strained relationship between the Court and the States Parties. These problems are further compounded by the uncertainty in the standards applicable to ‘no case to answer’ motions. In particular, she discussed the implications of the draft resolution of the creation of an expert panel to review the Court’s performance. In her view, it was important that the panel be encouraged to direct recommendations both at States Parties and the Court. In order to ensure independence and credibility, the review process must engage with the civil society.

Melinda Taylor (Defence Counsel at the ICC) then made a short presentation on the due process lessons learned in the wake of the Gbagbo and Ble acquittal. Significantly, the practice of acquittals is not unique to the ICC. Both the ICTY and the ICTR have famously acquitted many senior leaders involved in the Yugoslav conflict. Therefore, it would not be incorrect to infer that the heightened criticism directed at the ICC is in fact linked to the defendants being African nationals. She then spoke of how States could assist in undoing the trust deficit. In her view, releasing defendants should be considered as important as arresting and detaining them. However, releasing defendants/acquitting defendants does not serve the rehabilitative ends of justice if the defendant is already made to serve de facto punishment and denied the right to family life. Notably, Gbagbo was one of many cases where the accused was acquitted after having served nearly eight years in detention.  Therefore, more States should be encouraged to host the defendants released or acquitted by the Court. As of today, only two states have signed agreements with the Court to evince their interest in accepting released prisoners. In conclusion, she spoke of how the permanence of the Court should be used to its advantage. The Court, unlike its predecessors, had the opportunity to learn from the practices of the ad hoc tribunals and revise its working policies to keep up with the constantly evolving interests of justice.

The panelist presentations were followed by a brief floor discussion. Dr. Negm, in particular, was asked about the pushback from the African Union, and the futility of reform if African States choose to withdraw from the Statute. Dr. Negm acknowledged that withdrawal may be an extreme measure. However, reforms in the prosecutorial strategies could contain/undo this trend. The root of the problem was the target-based approach of the OTP – which has repeatedly failed, as seen in the Kenyatta and Ruto cases. Instead, the Court should draw on the success of the ad hoc tribunals and encourage domestic prosecutions at first instance. In so doing, the Court could also avoid creating unrealistic expectations for the victims and local communities. The event ended with comments from the counsel in the Gbagbo case, who discussed how the case prompted constructive exchanges between the Defence and the OTP, and internal policy reviews across all divisions. She voiced the agreement of the room that there was an urgent need to raise, and not lower, the bar for prosecutions.

Summarizing Developments at the International Criminal Court Before the 18th Session of the Assembly of States Parties

By Rachel Grand, Emma Bakkum, and dr. Marieke de Hoon

Between 2-7 December 2019, States Parties to the Rome Statute of the International Criminal Court (ICC) convene in The Hague for the 18th Session of the Assembly of States Parties (ASP): a key site for the politics of international criminal justice. In this post, we will provide an overview of recent events in preparation for this week’s developments. We will post daily summaries of the plenary and side event sessions here on our Lawyering Justice blog. Also follow us on twitter, via #PILPGatASP. 

The ASP functions as the management oversight and legislative body of the ICC and is composed of representatives of the States Parties to the Rome Statute. The ASP convenes annually in The Hague or New York to discuss and decide on issues that are relevant to the work of the ICC. These issues include the adoption of amendments to the Rome Statute or Rules of Procedure and Evidence, the ICC’s annual budget, judicial and prosecutorial elections, and questions relating to non-cooperation. A number of subsidiary bodies of the ASP report back to the ASP during the annual session, such as the Board of Directors of the Trust Fund for Victims and the Committee on Budget and Finance. During the ASP, States Parties furthermore discuss contemporary issues or challenges such as universality, complementarity, and victims and affected communities. Last few years, the ASP has in particular focused on threats to the integrity and legitimacy of the Court. 

To date, 122 states acceded to the Rome Statute. On 26 November 2019, Pacific Island State Kiribati deposited its instrument of accession to the Rome Statute. When its accession enters into force on 1 February 2020, Kiribati will be the 123rd State Party to the Rome Statute. 

Earlier this year, Malaysia was thought to become the 123rd state party, when Malaysian Minister of Foreign Affairs, Dato’ Saifuddin Abdullah, signed the instrument of accession to the Rome Statute last March. However, on 29 April, Malaysia confirmed with the UN that it was backtracking on its accession. 

This year, the ICC also lost a State Party when the Philippines formally withdrew from the Rome Statute in March, a year after it deposited its notice to the UN Treaty Office, becoming the second country to do so after Burundi withdrew in 2017. This move came in response to the preliminary examination into accusations that President Rodrigo Duterte and other Philippine officials committed extra-judicial killings during the “war on drugs” campaign.  

 The ICC looks back at another eventful year. Below a summary. 

Cote d’Ivoire – Gbagbo & Blé Goudé

In October, the Prosecution appealed Trial Chamber I’s January decision to acquit Gbagbo and Blé Goudé of all charges of crimes against humanity. The Prosecutors’ appeal asks the Appeal Chamber to declare a mistrial. While judges consider the appeal, the Appeal Chamber ruled to keep Gbagbo in detention. 

Uganda – Ongwen

In February, Ongwen’s Defense presented Trial Chamber IX with reasons why Ongwen should not be charged with 70 counts of war crimes and crimes against humanity. In July, the Appeals Chamber rejected Ongwen’s appeal on the Trial Chamber IX’s decision to decline the requested dismissal of 41 of the 70 counts of war crimes and crimes against humanity. In October, The Prosecutor announced that the trial of Ongwen is likely to conclude December of this year after the presentation of evidence. 

Libya – Saif Al-Islam Gaddafi

In April, Pre-Trial Chamber I confirmed that the case against Saif-Al-Islam Gaddafi is admissible before the ICC, rejecting the admissibility challenge presented by Gaddafi’s Defense in June of last year. The admissibility challenge asserted that Gaddafi was convicted by the Tripoli Criminal Court for the same conduct as charged by the ICC and that he was provided with a general amnesty.

Afghanistan 

In April, Pre-Trial Chamber II unanimously rejected the Prosecutor’s 2017 request to authorize an investigation into alleged crimes against humanity and war crimes committed in Afghanistan. The Chamber, despite finding that the jurisdiction and admissibility requirements were met, found that such an investigation “would not serve the interests of justice.” In September, the Prosecutor appealed the Pre-Trial Chamber’s decision to reject her request to open an investigation into the situation in Afghanistan. The Prosecutor’s appeal asserts that the Pre-Trial Chamber abused its use of discretion by not authorizing an investigation on the basis of an interests of justice assessment. In response to the appeal, on 9 October, the US announced it would remain to impose visa sanctions on ICC officials involved in investigations into US personnel. This announcement followed visa sanctions imposed on the Prosecutor, Fatou Bensouda, in March.

Bangladesh/Myanmar

In July, the Prosecutor requested the commencement of an investigation into the situation in Bangladesh/Myanmar. In September, Pre-Trial Chamber I decided that the Court may exercise jurisdiction over alleged deportations of Rohingya people from Myanmar to Bangladesh. This ruling established a precedent on ICC jurisdiction since Myanmar is not a party to the Rome Statute, but Bangladesh is. Pre-Trial Chamber II ruled in November that the Prosecutor can proceed with an investigation into the alleged crimes, within the ICC’s jurisdiction, committed against the Rohingya people from Myanmar.

Democratic Republic of Congo – Ntaganda and Lubanga

In July, Trial Chamber VI convicted Ntaganda of 18 counts of war crimes and crimes against humanity committed in the DRC between 2002-2003. In September, Ntaganda’s Defense appealed the  guilty verdict and requested an acquittal of all counts citing procedural errors and violations of fair trial rights. In November, Trial Chamber VI sentenced Ntaganda to 30 years in prison. This is the highest sentence the ICC has ever handed down. 

In July, the Appeals Chamber confirmed that Lubanga is liable for US$10 million worth of reparations to victims of his crimes.

Central African Republic – Yekatom and Ngaissona

In September, Pre-Trial Chamber II began the confirmation of charges hearing in the case against Yekatom and Ngaissona. Both are accused of committing war crimes and crimes against humanity in the CAR. Pre-Trial Chamber II concluded its hearings determining if there is sufficient evidence to establish substantial grounds for the charges against Yekatom and Nagaissona in October. The judges have 60 days to deliberate and present a written decision.

Mali – Al Hassan Ag Abdoul Aziz

In September, Pre-Trial Chamber I confirmed that charges against Al Hassan Ag Abdoul Aziz, for war crimes and crimes against humanity, were substantial enough to put him on trial. The Court has not yet set the trial date.

Syria 

In March, evidence against senior Syrian officials who allegedly committed war crimes and crimes against humanity were filed with the ICC. However, there are various limitations remaining to the Court’s ability to prosecute individuals who have committed war crimes and crimes against humanity in Syria.

Election of a new Chief Prosecutor

Next year, the ASP will elect a new Chief Prosecutor, during the ASP’s 19th session taking place in New York. Ms. Fatou Bensouda took office on 15 June 2012 and her 9-year term will end on 15 June 2021. She cannot be re-elected. 

Article 42 of the Rome Statute provides that the Prosecutor shall be a person “of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases.” The Prosecutorial election is facilitated by the Committee on the Election of the Prosecutor (CEP). The deadline for applications for the next Prosecutor was extended from 31 October to 25 November 2019. Reasons for extending the deadline include an under-representation of applicants from certain regions and legal systems, as well as gender representation.

In addition to the Chief Prosecutor, the ASP will also elect six new judges next year in New York. We can expect lobbying for each of these positions during this year’s ASP. 

Keep tuned to this blog to follow updates from the ASP in the days to come. 

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