ASP18 Side Event: Investigating and Prosecuting Ecocide. The Current and Future Role of the ICC.

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

Day 1 (2 December 2019)

Name of the Event: Investigating and Prosecuting Ecocide. The Current and Future Role of the ICC (Side Event co-hosted by Vanuatu, Ecological Defence Integrity, Green Transparency, Heinrich Böll Foundation, and Institute for Environmental Security)

Overview by: Emma Bakkum, Senior Research Associate PILPG-NL

Summary of the Event:

During the General Debate, Pacific Island state Vanuatu raised attention to the unprecedented threat of climate change and stated that “an amendment of the Rome Statute could criminalise acts that amount to ecocide. We believe this radical idea merits serious discussion". Just before Vanuatu called upon States Parties to amend the Rome Statute to include ecocide, a side event was held on the possibilities and challenges of prosecuting the crime of ecocide (co-hosted by Vanuatu, Ecological Defence Integrity, Green Transparency, Heinrich Böll Foundation, and the Institute for Environmental Security).

Moderated by ambassador John Licht from Vanuatu, the side event started with guest speeches of Ms. Losaline Teo (Crown Counsel of Tuvalu) and Nathan Brechtefeld Teewe (former Minister of Justice Kiribati). Both raised attention to some of the effects of global warming to Pacific Island States. Mr. Brechtefel Tweewe and Ms. Teo moreover underlined the lack of resources and capacity in small island states and the need for support from the international community in investigating environmental crimes. 

The panelists’ discussion focused around two ways in which ecocide could be prosecuted: 1) by using existing law, such as the Rome Statute, and 2) by introducing new laws or amending the Rome Statute. 

Richard Rogers (Global Diligence) focused on the second option. He discussed possibilities and limitations to prosecuting ecocide under Article 7 of the Rome Statute as an avenue for accountability and justice for environmental crimes. He referred to land grabbing in Cambodia. Acts often witnessed in the context to land grabbing are in fact enumerated in Article 7, such as illegal detention or persecution. According to Rogers, the ICC can make a real impact regarding environmental crimes as the Court, for example by issuing indictments, will have a deterrent effect. Rodrigo Lledó (FIBGAR) explored the OTP’s 2016 policy paper on case selection and prioritization and referred the crime of genocide, quoting Lemkin: “we must peel the law”. Valerie Cabanes (Earth Jurist) argued that the ecocide should be included in the Rome Statute with the objective to respond to the current climate crisis. She discussed some issues but also opportunities in this regard. For instance, creating a new institution would be a lot more ambitious than extending the ICC’s jurisdiction to include ecocide. Jojo Mehta (Ecological Defence Integrity) touched upon several opportunities “beyond the black letter of the law” that creating a more expansive law covering ecocide can bring. For instance, setting an example for domestic legal systems reduces the risks for domestic implementation of legislation and increases uniformity in the law.

Both panelists and participants agreed that the time is here for the law to adapt and fight against impunity for environmental crimes. However, panelists also underlined the importance of clearly defining the concept of ecocide (meaning “killing our home”)  and to be cautious with the way it is used. 

For more information on the crime of ecocide as a fifth Rome Statute crime, read for example: https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/opinion/43104-ecocide-atrocity-crime-idea-time-overdue.html and https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/in-depth-interviews/39950-valerie-cabanes-icc-should-recognize-the-crime-of-ecocide.html. 

ASP18 Third 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: Third Plenary Meeting (General Debate)

Overview by: Keri Van Douwen & Signe Wolf Børm, Junior Research Associates PILPG-NL

Main Highlights:

• Many States Parties pledged support to the values of the Court: complementarity, cooperation, and universality. Regarding universality, States Parties welcomed the Republic of Kiribati and emphasized on improving efforts to promote broader ratification of the Rome Statute.

• Several States Parties expressed support to the proposed amendment by Switzerland to include the war crime of starvation as a method of warfare in non-international armed conflict to Article 8 of the Rome Statute.

• Several States Parties referred to work on sexual and gender based violence.

• A number of states parties commented on the upcoming judicial and prosecutorial elections and the Review of the Court. 

Summary of the Event:

The second day of the 18th session of the ASP continued with the general debate. Several topics were touched upon by the States Parties taking the floor, including universality, cooperation, complementarity, the proposed amendment to Article 8 by Switzerland, and the upcoming elections. 

Some States Parties touched upon the importance of the ICC’s fight against impunity and its positive force in promoting the rule of law on a global scale, as well as improving States Parties’ national justice systems. By providing justice, the ICC has an important role to play in establishing peace. Ghana noted that, without being oblivious to the challenges and criticisms of the Court, it should be noted that the ICC has had a positive impact on governance structure in states in which the Court started preliminary examinations. Additionally, Ghana mentioned giving effect to the Rome Statute domestically by implementing legislation.

The importance of victim protection and the Trust Fund for Victims was highlighted by several states parties including Australia, Japan, Switzerland, Italy, Costa Rica, Portugal, Chile, and Hungary. Hungary announced it contributed 10.000 euros to the Fund.  

Several States Parties referred to work on gender and sexual violence, including Canada, Australia, and Japan. Similarly, States Parties expressed support to the proposed amendment by Switzerland to include the war crime of starvation as a method of warfare in non-international armed conflict to Article 8 of the Rome Statute.

The initiative for an Independent Expert Review (IER) of the Court was welcomed by a number of States Parties including The Gambia, Nigeria, Switzerland, Italy, Costa Rica, and Sierra Leone while further noting that such review should bear in mind the effectiveness, partiality, and added value of the ICC. 

 The budget of the ICC, although officially scheduled to be discussed during the fifth general debate, was addressed in the statements of a few States Parties. Nigeria stressed the importance of investigating whether the ICC has had the necessary funding over time. Quite on the contrary, El Salvador, noted that an increase in the financial contributions made to the ICC would not be justified. Japan mentioned that taxpayers may not be convinced to continue contributing to the Court without seeing tangible outcomes. Thus, Japan mentioned, the ICC should prioritize situations and cases more strictly, further stating that geographical representation is a matter of concern. Switzerland emphasized the inconsistency in expecting the Court to fully fulfil its goals to end impunity and it not being provided with the resources it needs. Nevertheless, the Court should use its financial resources in the most responsible manner possible. Several States Parties further remarked that States Parties should comply with the budgetary commitments they have made. 

Many States Parties referred to the upcoming election (process) of judges and the prosecutor. It was generally noted that only the most highly qualified judges should be nominated. The representative of Bulgaria further suggested that judges could be nominated by each State Party to fully ensure that the right individuals are selected. Several States Parties moreover mentioned that the prosecutor should be elected based on his/her merits only and that the election procedure should be transparent and fair.

The principle of universality was highlighted as being of core importance in numerous statements. In this context, several States Parties including Australia, Liechtenstein, Costa Rica, New Zealand, Brazil, Spain, and Estonia welcomed Kiribati as the 123rd signatory to the Rome Statute. Liechtenstein noted that two-thirds of all states have decided to join the ICC which is an important step in moving towards universality. 

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.