ASP Side Event: Realizing Expeditious Criminal Proceedings

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

Day 2 (3 December 2019)

Name of the Event: Side Event, Realizing Expeditious Criminal Proceedings (co-hosted by Italy and Japan)

Overview by: Keri van Douwen, Junior Research Associate PILPG-NL

Main Highlights:

• We have a responsibility to ensure that victims do not wait for justice forever. 

• The ICC can learn important lessons from domestic systems and practice regarding conducting expeditious and efficient criminal proceedings. 

Summary of the Event:

This side event was moderated by Judge Fausto Pocar and contributions came from Judge Motoo Noguchi and Judge Silvio Franz, who discussed the Japanese and Italian justice systems respectively. These perspectives aimed to shed light on the challenges faced by both national and international justice systems in conducting criminal proceedings, while ensuring human rights of those involved. At the same time, much can be learned from domestic systems and practice to achieve the ICC’s goal of efficiency.

First, Judge Motoo Noguchi briefly presented the Japanese legal system and its practice aimed at speeding up trials. For example, it is the prosecution’s strategy to prosecute only sufficiently strong cases. This means that some cases which might have led to a conviction if prosecuted, are dropped. As a result, the prosecution tends to be more efficient. Additionally, efforts are made to ensure that only the best evidence is selected and submitted. A Court rejects evidence that is not absolutely necessary or sufficiently relevant. Japanese Courts prepare a draft judgement as early as practically possible and make the judgement as succinct as possible. Issues not directly necessary to decide the case are not discussed which means that it becomes difficult to have a 500 page judgement. Especially interesting to the ICC has been Japan’s decision to no longer address victims individually but instead consider victims as a single entity, irrespective of the number of victims. In the ICC system, both collective and individual reparations exist. A wide scope of victims may place too much of a burden on the Court and could lead to disappointment to those who are eventually excluded at a later stage. 

Second, Italian Judge Silvio Franz presented the Italian legal system and the challenges it faces.  In contrast to the Japanese system, the Italian public prosecutor has an obligation to institute criminal proceedings. At the same time, Italian law provides for the reasonable timeliness of proceedings. The statute of limitations and its rules on prescription have been amended seven times in the last fifteen years, which shows the difficulty of addressing the length of prosecutions. The limitation period, currently a maximum of 18 months for preliminary investigations, has led to 1.5 million proceedings being cancelled. Solutions mentioned by Judge Franz include: streamlining of procedures and formalities, computerisation, rationalisation of structures, coverage of staff shortages starting with administrative bodies, control of the activity of the individual magistrates, and modification of some obsolete regulations. 

During the discussion, it was mentioned that ICC rules may be too stringent or not flexible enough to allow for speeding up procedures. While it might have a positive effect if judges were to take responsibility of refusing evidence that cannot be established as proof, evidence remains difficult to find. Often, evidence has to be found abroad, the ICC does not have an enforcement mechanism so that the prosecutor relies on state cooperation, which sometimes does not materialize or is very limited. To speed up the international trials, state cooperation is of the essence.  

ASP18 Side Event: It’s about time - Revisiting the timing and duration of decision-making at the International Criminal Court

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

Day 2 (3 December 2019)

Name of the Event: It’s about time - revisiting the timing and duration of decision-making at the ICC (Side Event hosted by Austria, Finland, Germany, the Netherlands, Norway, the United Kingdom and the Wayamo Foundation)

Overview by: Raghavi Viswanath, Junior Research Associate and Emma Bakkum, Senior Research Associate PILPG-NL

Main Highlights:

• The length of proceedings at the ICC has been long-criticized for adversely impacting the rights of the accused, the rights of the victims, and the legitimacy of the Court. 

• The length of proceedings is linked to structural issues – such as the institutional design of preliminary examinations, the heightened emphasis on victims’ participation, and even the lack of collegiality between the organs of the Court. 

• This calls for strengthening of internal guidelines, and a reconsideration of the goals that victims’ participation and preliminary examination are in service of.

Summary of the Event:

This side event hosted by the Wayamo Foundation started with a host introduction by moderator Mark Kersten (Senior consultant, Wayamo Foundation, and Senior Researcher, Munk School of Global Affairs and Policy, University of Toronto). He then opened the floor for the panelists. The first panelist, Lorraine Smith van Lin (Post-conflict justice advisor, Redress) began by inviting the audience to look back at how far the ICC has come, and use these lessons to improve its future. She identified four structural issues with the Court which have a direct bearing on the length of the proceedings, namely, the impact of victims’ participation, the role of the pre-trial division, the challenges that different legal backgrounds of the judges bring, and the general lack of collegiality within the institution. She discussed the impact of the length of proceedings on victims, in particular with regard to reparations. This in turn impacts the credibility and legitimacy of the Court on the ground. Case in point is Lubanga where there was a time lag of nearly 15 months between the Trial Chamber’s decision and the Trust Fund for Victims’ programmes. It is important for the ICC to devise solutions to mitigate such delays.

Elizabeth Evenson (Associate Director, International Justice Program, Human Rights Watch) then spoke about how the length of the proceedings should not be used as a proxy for deeper, systemic issues with the Court. Addressing the objections to the time taken by preliminary examinations, Ms. Evenson observed that the delays in preliminary examinations had had a negative impact on the perceptions of the ICC’s legitimacy. However, she observed that while the time factor assumes great importance, it is better to inquire into the goals of preliminary examinations instead. The challenge is to find ways to effectively engage the OTP and the national authorities in making preliminary examinations more meaningful. The Court must also consider engaging in more detailed legal discussions in the preliminary examinations – as that creates political impetus.

Shehzad Charania (Director of the UK Attorney General’s office) concurred. He invited States Parties to assess what they could do to prompt reform – either by way of cooperation (reduce the use of the veto) or secondary legislations. Mr. Charania also discussed the ICC’s recent practice of self-imposed deadlines. In his view, these steps should be welcomed. A closer look at the practice of the Court shows us how factually and legally similar cases have followed significantly different timelines. By way of illustration, he compared the time taken by the Ruto chamber with that of the Kenyatta chamber. A similar trend can be gleaned from the ICTY’s timelines in Popovic and Prlic. There was nothing different in these cases except for the judges. In his argument to welcome the ICC’s self-imposed deadline, Mr. Charania referred to the existing framework of using deadlines in the Rome Statute and Rules of Procedure and Evidence and proposed to draw inspiration from the ICTY’s completion strategy. He suggested that, although no direct precedent, it is only logical that deadlines are extended to preliminary examinations as well. This would also help the parties hold judges or the OTP accountable for any procedural aberrations. However, he warned against mechanically transposing domestic timelines. 

Lorraine also commented on the extent to which length of proceedings is affected by victims’ participation. In Lubanga, the judges were inclined to be more inclusive regarding victims’ participation since it gave them useful insights to the socio-political context in which the crimes had been committed. In contrast, in Bemba, the Defence counsels were critical of such a flexible approach. They claimed that victims had effectively assumed the position of parties to the conflict, and that they were given an unfair advantage over the Defence. In conclusion, she noted that the time was right and appropriate for a review, considering that the institution has also begun to appreciate the need for better internal regulations and more consistency. However, in so doing, the Court must ensure that it involves all stakeholders.

The floor was opened for audience comments/questions. Benjamin Gumpert first commented on how the more deep-rooted issue is one of collegiality or ‘civility’ (one which Judge Tarfusser recognized in his Gbagbo opinion). The first step to achieving collegiality is for all the organs to come together in devising internal guidelines. In particular, he suggested the introduction of sentencing guidelines and rules for the protection of vulnerable witnesses, as is common practice in domestic jurisdictions. These efforts must be focused at increasing docket pressure. Philip Ambach from the ICC Victims Participation and Reparations Section then warned the panelists of the risks of over-regulation. While performance indicators were a step forward, his own experience made him realise that the absence of strict rules allowed the Court to be more flexible in its treatment of victims’ rights. In response, Lorraine spoke about how the need and impact of victims’ participation must be assessed differently depending on the stage of proceedings. Building on her point, Mr. Charania added that involving 5000 victims (like the Court did in Bemba) was without doubt going to strain the Court’s resources. Nonetheless, we must appreciate that the creation of the Rome Statute was a political and legal exercise. Efficiency and speed were not the goals identified during its conception. Therefore, it is going to be radically difficult to introduce such goals 20 years into the working of the project. And, ultimately, speed is a better concession to make, than quality.

In conclusion, Liz Evenson responded to the question regarding the futility of preliminary examinations. She noted that the absence of substantive engagement with national efforts at the preliminary examination stage can create the perception that the ICC is unlikely to continue investigation (as was the case in Colombia). However, this was a question of operationalization, more than utility. The preliminary examination stage has unique benefits - both in terms of political impetus and monitoring. 

ASP18 Side Event: The prosecution of economic and financial crimes: towards an extension of the ICC’s jurisdiction?

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

Day 2 (3 December 2019)

Name of the Event: Side Event: The prosecution of economic and financial crimes: towards an extension of the ICC’s jurisdiction? (Hosted by the Association Francaise pour la Promotion de la Compétence Universelle)

Overview by: Kelly van Eeten, Junior Research Associate PILPG-NL

Main Highlights:

• Panelists argued that the ICC should start with the prosecution of  economic crimes, financial crimes and ecocide and should also start looking into grand corruption. 

• Looking at grand corruption could offer the ICC and international lawyers some help in understanding how and why atrocity crimes are committed, particularly in the countries that are in state of kleptocracy.

Summary of the Event:

Elise Le Gall, attorney at law and founder of Association Française pour la Promotion de la Compétence Universelle opened the event together with Laureen Bokanda-Masson ,attorney at law. Mr. Oliver Windridge, lawyer and senior advisor for the UK The Sentry, started with an introduction on the Sentry, an NGO co-founded by John Prendergast and George Clooney. The Sentry is an investigative and policy team that investigates dirty money connected to African war criminals and war profiteers. The countries they work on have a few important things in common: they have a lot of resources, the population lacks access to basic facilities and the top leaders are extremely wealthy. 

One of Mr. Windridge’s main points was the analysis on the following question: when we talk about the expansion of crimes under the jurisdiction of the ICC, who are we targeting, and who are we going after? The professional enablers might be an interesting category. They are almost always outside the country in conflict and provide for example business, financial, and legal advice. However, is this what the States Parties signed up for? They might see businessmen from their own countries being indicted to the gravest crimes. 

He closed with listing four questions he thinks the ICC should keep in mind while investing a situation:

1. Does the country have national resources? 

2. Is it a long running conflict? 

3. Do the leaders or elite have wealth? 

4. Is there involvement of foreign businesses around these leaders?

Mrs. Sunčana Roksandić Vidlička, assistant professor at Zagreb University, was the second speaker and her presentation was titled:Serious Economic Crimes as Crimes against Humanity: a new mandate for the ICC? When she started working on this topic in 2011/2012 there was not a lot of literature and research available. She stated that she is happy to see the increase in research involving this topic, which creates more knowledge and awareness. According to Sunčana, the ICC’s honeymoon phase is over and our community does not have the same enthusiasm as it once had. She stated that the prosecution of economic crimes, financial crimes, and ecocide for the ICC might get this “honeymoon phase” back. She continued by explaining how Article 7(1)(k) of the Rome Statute is a plausible means to prosecute these crimes without violating the principle of legality, by applying the laws listed in Article 21 of the Rome Statute. 

Mr. Richard J. Rogers, lawyer and founding partner of Global Diligence, was the last person to present and he stated that there has been too little discussion on how grand corruption can influence the most serious human rights violations, namely mass atrocities. According to him, the prosecutor should start considering grand corruption in its investigations. He listed several characteristics of grand corruption, namely the following acts by the elite: manipulation of state operators for their own gain, the banning of opposition, control over their own MP’s, closing down of civil society, manipulation of judges and prosecutors and the misuse of the policy and the army. He called countries with these practices a ‘kleptocracy’ and stated that these kleptocracies are working together to get more wealth, while the international laws on state sovereignty give them protection. He gave several examples of countries with grand corruption, with Sudan as a striking one. Mr. Rogers stated that grand corruption oiled the wheels for genocide in Sudan.

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.