ASP18 Side Event: State Cooperation and Respect for Human Rights – Finding Solutions in Cases of (Interim) Release

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

Day 2 (3 December 2019)

Name of the Event:  State Cooperation and Respect for Human Rights – Finding Solutions in Cases of (Interim) Release (side event co-hosted by the Kingdom of the Netherlands, and the International Bar Association (IBA))

Overview by: Rachel Grand, Junior Research Associate PILPG-NL

Main Highlights: 

• This side event discussed cooperation gaps between the ICC and States Parties.

• Panelists touched upon a more holistic review on judicial process in relation to fairness and fundamental human rights.

Summary of the Event: 

This side event focused on states’ voluntary cooperation regarding interim release. Currently, the issue of interim release is a significant problem the Court faces because there is not a political willingness among states to cooperate on this matter.  The Rome Statute lacks the structure to compel cooperation for interim release, and there has been little traction for states to sign voluntary cooperation agreements. There are only two existing agreements on interim release and one on final release.

William Roelants de Stappers, Ambassador of Belgium, discussed Belgium’s cooperation with the ICC in cases of the interim release. Specifically, he mentioned the recent decision for Bemba’s conditional release. He encouraged other states to sign voluntary cooperation agreements, stressing that these agreements still give the state the right to refuse on a case-by-case basis. Additionally, the Ambassador identified themes of willingness to share technical aspects of Belgium’s experience and the importance of understanding that engaging domestic law promotes complementarity.

Peter Lewis, Registrar of the ICC, discussed how the framework of the Rome Statute failed to realize the fundamental weakness in the Court’s lack of mandatory cooperation. He highlighted states’ commitments to voluntary cooperation with witness protection, but the lack of similar pledges for interim release. One major challenge he cited was that the ICC seeks cooperation for interim release based on each individual’s case on an ad hoc basis, so there is no time to deal with practical ways to increase networks and share the burden among states. Furthermore, he stressed that the Court is requesting cooperation on a voluntary basis, meaning no state is obligated to take anyone and can refuse based on issues to national security, public order, or other reasons they cannot help with a particular case. Lewis concluded raising the question, is the ICC a real court if it cannot deal with situations arising from acquittals?

Erica Lucero, from the Argentinian Embassy, discussed Argentina’s commitment to voluntary cooperation through the signing of international agreements and incorporation of such agreements into their national laws. Lucero reiterated the importance of state parties’ cooperation for the Court to be effective and efficient. She also discussed the importance of Argentina’s Ministry of Foreign Affairs relationship with the ICC on the international level and the Ministry of Justice’s implementation of cooperation agreements on the domestic level. Furthermore, she argued that if Argentina, a developing country, can take this step to cooperate, every other state has the prerogative to follow their lead and find common ground with the Court.

Melinda Taylor, form the Counsel for the Defence, spoke next. Her main points stressed the risk of not releasing prisoners over the risk of releasing them. She listed the practical impediments to release and potential solutions. One of the main contentions for interim release is that the Court requires assurance for release. The Court may discredit if a state comes to the defense agreeing to the terms, but if the state does not come first, the Court will reject the release because there are no assurances. Additionally, Taylor cited that more transparency in the criteria of a summon versus an arrest warrant would result in more individuals surrendering to the Court and in turn, being granted interim release since the Court would then not view them as a flight risk.  Furthermore, she put forth what she called a radical idea that greenlighting a trial on an arrest if there is no reasonable way to implement the acquittal is contrary to fundamental human rights. Taylor concluded by discussing the hidden costs of the ICC’s interim release: financial cost of detention, mental problems of defendants, violation of fundamental human rights, and risk of litigation.

The event then concluded with a discussion between the panelists, Kate Orlovsky from the International Bar Association, and a representative from the office of the Registrar. They covered the Court and other stakeholders’ outreach efforts to promote cooperation and the framework to solve the issue of who bears the financial cost in implementing conditional release.

ASP 18 Fourth Plenary Meeting: General Debate

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

Day 2 (3 December 2019)

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

Overview by: Rachel Grand, Hester Dek, and Francisca De Castro, Junior Research Associates PILPG-NL

Main Highlights: 

• The fourth plenary meeting saw the last session of the general debate. States Parties took the opportunity to reaffirm their support to the ICC. Other topics touched upon included: 

  • Reparations for victims

  • Head of state immunity

  • Cooperation

  • Universality

  • Complementarity

  • Budget

  • 2020 elections 

  • Independent Expert Review of the court

• Besides States Parties, Observer States, including China, Iran, and Cuba and international organizations, including the African Union, Council of Europe, ICRC, IDLO, the Sovereign Order of Malta, and the ICCBA, took the floor. 

• Finally, the CICC and nine CICC members made statements.

Summary of the Event: 

The fourth plenary meeting continued with the general debate, with States Parties including Lesotho, Mali, Colombia, Senegal, Paraguay, Panama, Iceland, Tunisia, Argentina, Latvia, Kenya, and Venezuela. Various States Parties took the opportunity to reaffirm their support and commitment to the ICC. 

Additionally, States Parties focused on the importance of justice for victims and ensuring the role of victims in proceedings. Many of the civil society organizations gave voices to these victims, such as Touffah Jallow, a rape survivor from the Gambia. Additionally, Elise Flecher from Lawyers for Justice in Libya emphasized the importance of ICC proceedings to assist victims and gain their trust. 

The majority of States Parties, international organizations, and NGOs mentioned the importance of cooperation with the Court. Colombia highlighted the current lack of cooperation between states and the ICC. Senegal and Kenya reaffirmed their efforts to increase cooperation with the Court. Additionally, Tunisia discussed the importance of cooperation with international organizations.

The importance of universality was underlined by the majority of States Parties. Multiple  States Parties welcomed Kiribati acceding the Rome Statute, along with their discontent for the Philippines withdrawing from the Rome Statute. Specifically, Mali and Paraguay stressed the importance of universality of the Rome Statute to show that no state is above international law. However, Observer State China highlighted the importance of state sovereignty. 

Many States Parties highlighted the importance of the principle of complementarity. Cuba, as Observer State, affirmed that this founding principle is what brings support from the ICC, a principle without which, the Court would not exist. The Cuban delegation however, noted that the role of the UN with regard to the ICC, as it is perceived by the delegation undermines the impartiality principle of the Court. 

A point of contention that remained was the preliminary examination of the situation in Venezuela. Paraguay, Argentina, and Colombia reiterated the importance of this examination to the ASP and urged for the opening of an investigation. These three states are a part of the group of states that referred the situation in Venezuela to the Office of the Prosecutor in 2018. Argentina emphasized that in 2019, new documents were submitted to the Office of the Prosecutor on this situation. Venezuela however, responded by calling on the ASP to be aware of a “judicialization of politics” and what had become a double standard in delegations’ speeches of complementing the principles of independence and complementarity of the court, and then referring to the referral of the situation. Venezuela noted that it believes its domestic judicial institutions have taken the appropriate steps, as put forward in the national constitution and domestic legal framework. Venezuela reaffirmed its committed to the ICC, and so will provide more information on the current domestic proceedings once information becomes available and public. 

Regarding the budget, there were voices of support but also criticism. Tunisia spoke about the need for a realistic approach that takes into account the capacities of States Parties and responsibilities of the court. Venezuela voiced concern for the augmentation of the budget, claiming an extensive revision on the Court’s policy is necessary and that the argument of micromanagement should not be an argument against rendering the courts spendings. Additionally, Lawyers for Justice in Libya noted the need for more funding for the investigation in Libya, along with greater political will.

States Parties emphasized that the upcoming elections in 2020 must be fair, transparent, and merit based. Latvia and Panama stressed the importance of all organs of the Court to reflect gender and geographical representation. Multiple NGOs, such as the International Federation for Human Rights and Parliamentarians for Global Action, reiterated the importance of these elections will have on the future of the court. 

Finally, the independent expert review was brought forward by several States Parties. Many States Parties, such as Argentina, Colombia, Senegal, Panama, and Latvia reaffirmed their support for this review of the performance of the ICC. But states, such as Senegal called for the importance of the input that can be suggested from relevant stakeholders, namely states and civil society. 

After States Parties, Observer States, China, Iran, and Cuba and international organizations, including the African Union, Council of Europe, ICRC, IDLO, Sovereign Order of Malta, and the ICC bar association took the floor. To conclude, representatives from various NGOs spoke. After CICC, nine members of the CICC took the floor, including from the Asian Legal Resource Center, Africa Legal Aid, Afghanistan Transitional Justice Coordination Group, Venezuela Informal Network, International Federation for Human Rights, Regional center of Human Rights of Ukraine, Lawyers for Justice in Libya, Darfur Women Action Group/African Network on International Criminal Justice, and Parliamentarians for Global Action. 

ASP18 Side Event: Should the ICC open a preliminary examination in Mexico? Discussion about allegations of crimes against humanity in Mexico?

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

Day 1 (2 December 2019)

Name of the Event: Should the ICC open a preliminary examination in Mexico? Discussion about allegations of crimes against humanity in Mexico (co-hosted by the Coalition for the International Criminal Court (CICC), International Federation for Human Rights (FIDH) and the Open Society Justice Initiative (OSJI)).

Overview by: Leonore ten Hulsen, Junior Research Associate PILPG-NL

Main Highlights:

• Various panelists pointed out the problematic situation in Mexico and the lack of options for prosecuting crimes against humanity in the Mexican judicial system. Therefore, the panelists asked for a preliminary examination in Mexico.

• The Ambassador of Mexico to the Netherlands pointed out that the government and civil society actors are fighting for the same cause and are on the same side. Moreover, he nuanced that most of the homicides discussed today are taking place within the context of conflict between organized crime actors.

• Mr. Antoine Bernard responded to the ambassador’s statements by saying that a preliminary examination into allegations of crimes against humanity in Mexico would be in the common interest of both civil society actors and the government alike. 

Summary of the Event:

The first panelist, mr. Cesar Contreras Leon (FIDH) commented on the current state of affairs in Mexico concerning criminal prosecutions. He pointed out that little financial resources are available for the prosecution of cases involving torture, enforced disappearment, and murder, which amounts to approximately 8 euro’s per case per year. Moreover, there are currently only 143 human rights lawyers in Mexico, while there are over 16.000 cases involving potential human rights violations. This would boil down to each lawyer having the impossible task to take care of over 110 cases per year. Moreover, Mexico has a very high impunity rate, around 90%. Especially the lack of financial resources and human rights lawyers amount to a situation in which redress for human rights violations is increasingly difficult. 

The second panelist, ms. Jimena Reyes (FIDH) explained that a clear pattern of crimes against humanity arises, as FIDH researched the various crimes on both the national and regional level in order to find patterns between the various types of crimes. Ms. Jimena Reyes explained that in Mexico, torture is widespread and refered to comments made by the Special Reporteur of the Inter-American Court. She mentioned that the state of Baja California was one of the first states where armed forces were registered. Detainees were found to be transferred to military bases under the exclusive control of militaries, and 95 cases were documented of heavy torture and/or forced disappearance. Medical professionals were included to downplay the amount of harm that was done, covering up torture cases. These crimes have gone unpunished until now. In 2019, one of the perpetrators of these crimes ran for mayor in the same city and victims tried to organize to draw attention to the crimes he committed, resulting in one civilian being shot.

In Kwawila, through a collaboration of 100 NGOs, an analysis of over 500 cases on enforced disappearance and torture - amongst other human right violations - was presented to the office of the public prosecutor. Ms. Jimena Reyesr argued that these cases constituted proof that crimes against humanity had been committed. Investigations focusing on the macro-level, and going beyond the individual case-level is necessary. In Mexican (case) law, the concept of crimes against humanity has not yet been acknowledged. Therefore, she invited the Mexican government to a constructive dialogue and to submit this case for preliminary examination by the ICC, as it can constitute an important sign and change of the current state of being.

The third panelist, ms. Olga Guzman Vergara (Comisión Mexicana de Defensa y Promoción de los Derechos Humanos (CMDPDH)), discussed the problems with the state of Chihuahua, as it is a key point for drug trafficking organizations as a result of its geographical location. Since 2008, the Calderón president created a joined strategy between civil and military forces in Chihuahua to combat distribution and consumption of drugs. However, since 2008 local NGOs have documented an increase in violence, (sexual) torture, and forced disapparences. These NGOs found that crimes were mainly committed by the security forces. For example, in the year 2005 there were 517 violent killings in the state. After 3 months of the implemented new strategy to combat the drugs violence, 2600 people were violently killed and by 2010, this was 4000 violent killings. The high number of victims and forced disappearances even created types of ‘ghost towns’, as many families and other people fled the violence. 

 Because of the joined strategy between civil and military forces in Chihuahua, the alleged crimes against humanity were committed by both actors. The University of Leiden found that the situation could amount to an international conflict situation, because of the drug trafficking organizations. Out of the nine drug trafficking organizations that are active in the region, eight fulfilled the requirements for international law. The War Academy of Geneva had similar findings, because drug trafficking organizations are armed groups with structures of command and control, and have weapons and capacity to carry out military operations. The drug organizations have the option to get into contact with governmental officials to bribe them. Furthermore, they control many important economic regions, mainly in the north and they operate military-like in the country. 

Ms. Olga Guzman Vergara continued by pointing out that the violence in Mexico has not seized. She discusses some of the most recent news in the country of Mexico, which includes the headline: ‘After Soldiers Surrender El Chapo’s Son, a Shocked Mexican City Sighs with Relief’. 

The fourth panelist, mr. Antoine Bernard (Deputy Director General at Reporters sans rontières/Reporters Without Borders (RSF)), focused on the vital role of journalists in a democratic society. He explained that 116 cases of crimes against journalists were analyzed, of which 101 were murders and 14 were disappearances. The data showed that journalists were targeted specifically in order to create terror and stop them from reporting on matters of public interests, like the drug cartels. Moreover, he pointed out that Mexico is currently the deadliest country in the world for journalists. The fact that journalists are still being killed, shows a deliberate failure of the federal authorities to research, prosecute, and protect journalists and their work, according to Mr. Bernard. Lastly, mr. Bernard asked whether we can afford another year of not acting, as so many journalists have died already. 

All panelists called for an international investigation of the ICC in order to show that justice will be done and redress will be made available for victims. 

Before the audience was given the opportunity to ask questions, Ambassador of Mexico to the Netherlands shared some comments, starting with a few disclaimers. The role that NGOs play in the effort of the Mexican state - which includes both the government and the society as a whole - to overcome the difficult situation Mexico is essential and fundamental, he stated. Moreover, he argued to not focus on a government and a society, but to see them as a whole: the government is not the enemy, the drugs are. The true enemies are the organized criminals that are challenging the state authorities and law enforcement and that are corrupting and endangering civilians. He expressed his hope for NGOs to see the government as an alley. Thirdly, he confirmed the serious situation in Mexico as a result of organized crime. However, he also spoke of positive situations that exist, like the government's commitment to combat corruption. Moreover, he spoke of the inclusion of human rights defenders in the current government, showing progress in the situation in Mexico. Furthermore, he spoke of the construction of a national guard that protects civilians and provides more law enforcement on both national and local level. Moreover, laws are being changed to protect human rights advocates and journalists. Lastly, he pointed out that around 90% of homicides are committed by criminal organizations against each other. Around 70% of the violence is committed in only 10 of all municipalities in Mexico. The ambassador stated that he does not want to diminish the seriousness of the issue as every innocent death is one too many, but he underlined that most problems are at the local level. He disagreed with the idea that there is a political motivation to this violence, as it is simply illegal criminal profit making according to him. This can therefore not be seen as a conflict situation, nor as a terrorist act, because violence’s motivation is not political.

Mr. Antoine Bernard responded to the ambassador’s statements that collusion and corruption on the local level are evident, but that special protection mechanisms that the ambassador referred to were created nearly 10 years ago. The special prosecutor of freedom of expression in Mexico states its inability, having opened more than 800 proceedings, and not once having been able to condemn the ones who ordered the murders. Mr. Antoine Bernard concluded that it will be in the common interest to start an ICC investigation and would send a clear message to local judges and prosecutors. Moreover, it would send a message of support to local law enforcement, instead of people having to listen to the temptation of corruption and bribery, according to mr. Bernard.

Afterwards, mr. Cesar Contreras Leon added that opening a preliminary examination into the situation in Mexico could also be important in light of the widespread corruption that Mexico faces. 

 Someone from the audience asked why the NGOs present consider it important that the ICC opens a preliminary examination, considering the fact that this might take years. Ms. Jimena Reyes answered that it could possibly trigger change in the legal system to include crimes against humanity. Moreover, a preliminary examination could encourage change in the way crimes are registered and prosecuted. Furthermore, a preliminary examination would mean some recognition for the victims. 

Finally, a participant referred to a similar situation in Colombia, on the failure of the judicial system and that the biggest challenge is to look at the macro-level of the violence. It is not simply the drug cartels that act as third actors, but they are also infiltrated in the government and therefore it involves corrupted state practice. If a state does not address this as a federal problem, this amounts to a lack of will to prosecute those who are responsible for the violence.

November 2019

Rachel Grand - Junior Research Associate PILPG-NL

Monthly News Update: International Criminal Court (ICC) – November 2019

In the past month, the International Criminal Court (ICC) authorized the Office of the Prosecutor to investigate alleged crimes against the Rohingyas. It also issued the long-awaited sentencing decision in the Bosco Ntaganda case.

Africa

Libya | ‘Violence, Atrocities and Impunity’ reign throughout Libya, ICC Prosecutor tells UN Security Council

The ICC Prosecutor spoke to the UN Security Council about how even after nearly a decade of working in Libya, the Court still sees the country entangled in a “cycle of violence, atrocities and impunity.”   This statement serves as a plea to the international community to end the Libyan conflict.  [November 6, 2019]

Democratic Republic of Congo | Ntaganda handed 30-Year prison sentence

The ICC judges sentenced Bosco Ntaganda to 30 years in prison.  This is the highest penalty the Court has ever given.  [November 7, 2019]

Congo | ICC confirms one year jail sentence, fine for Congo’s Bemba

Appeals judges confirmed Bemba’s one-year prison sentence and 3000,000-euro fine for interfering with witnesses who testified in his crimes against humanity and war crimes trials.  [November 27, 2019]

Europe

United Kingdom | International Criminal Court may investigate UK ‘war crimes cover-up’

According to news reports, the UK covered up instances of their troops killing civilians in Iraq and Afghanistan.  If the ICC authorizes the Prosecutor to open an investigation into these alleged crimes, it would be its first investigation into crimes committed by nationals from the UK.  [November 18, 2019]

Asia

Bangladesh/Myanmar | International Criminal Court authorizes investigation into crimes against Rohingya 

Pre-Trial Chamber II ruled that the Prosecutor can proceed with an investigation into the alleged crimes against humanity perpetrated against Myanmar’s Rohingya Muslim minority causing them to flee to Bangladesh.  [November 14, 2019]

November 2019

By Kelly Van Eeten and Francisca De Castro - Junior Research Associates PILPG-NL

Monthly News Update: Southern Cameroons – November 2019

This news update deals with the developments which have taken place in the Cameroons in November 2019. This includes both national and international events relating to the ongoing conflict.

Humanitarian Crisis

Cameroon | Ongoing Violence leads to Humanitarian Emergency

The ongoing violence in the North-West and South-West regions of Cameroon has grown into a humanitarian emergency which has already affected nearly1.9 million people.  This is a 15-fold increase compared to the figures in 2017.  Insecurity and poor road access have left about 65 percent of both these regions inaccessible to aid workers. As a result, the aid workers face a higher risk of being taken hostage.

Moreover, “thousands of children in Cameroon are living in fear. They need peace so that they can resume their education and reclaim their future,” said UNICEF Executive Director Henrietta Fore. “When children are out of school, they face a higher risk of recruitment by armed groups, child marriage, early pregnancy and other forms of exploitation and abuse.”  Reports suggest that over 855,000 children are out of school.  

Since the start of the academic year, about 90 percent of the public primary schools and 77 percent of public secondary schools have remained closed or non-operational in the above discussed regions. UNICEF gives the fear of violence as a reason, since parents are afraid to send their children to school and the staff of the schools is afraid to work. In some areas community-run learning activities have been introduced.

Attacks on health care centres

Southern Cameroons | Attacks on Health Centres Leads to Severe Damages but No Deaths

Health care centres have again been the centre of attacks. The health centre in Buea was burnt down on October 30 and 31. Security sources now say that separatist groups initiated the attack against the centre.  No casualties were recorded, but there is significant material damage. However, this is not the first time health centres have been attacked. In February, armed men burnt down a hospital and 7 hospital vehicles, which resulted in 4 casualties.

US Cuts Cameroon Trade Privileges Over Rights Abuses

United States | US Stops Funding Cameroon

In early November, the Trump administration announced that it intends to cut trade benefits for Cameroon from January 1, 2020 onwards, citing human rights violations in the country.  With this, Cameroon lost its privileged access to the US market  under the African Growth and Opportunity Act (AGOA).  

Furthermore, the United States does not share the Cameroonian government’s enthusiasm on the “success” of the National Dialogue encounter.  Tibor Nagy, the Assistant Secretary for the US Department of State’s Bureau of African Affairs affirmed the need for a true dialogue and a transfer of powers to the region.  He warned against moderate Cameroonians leaning towards secession, and emphasized the importance of “something of sufficient interest for those who remain in the moderate point of view”.

February elections

Cameroon | Elections Will Take Place in 2020

Cameroon is scheduled to have parliamentary and municipal elections on February 9, 2020.The 2018 presidential election triggered a major political crisis and some fear that these elections will create even more chaos.  Kamto, the opposition leader in Cameroon, announced that his party (MRC) would boycott the February’s legislative and local elections.  He called on other opposition parties, as well as civil society organizations and religious groups to join the boycott.