ASP18 Side Event: Strengthening the ICC while Upholding its Independence and Safeguarding the Integrity of the Rome Statute

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

Day 2 (3 December 2019)

Name of the Event: Strengthening the ICC while Upholding its Independence and Safeguarding the Integrity of the Rome Statute (Side Event)

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

Main Highlights:

• The panelists underlined the importance of inclusion to ensure the legitimacy of the Court: both equal gender and geographical representation should be satisfied. 

• Richard Dicker, HRW, noted that the Independent Expert Review is a welcome development but it should not be expected to transform all the Court’s problems. Responsibility lies with ASP, States Parties, and the new generation of leadership.

• Fiona McKay, OSJI, underlined that the new generation of leadership, to be elected at the 19th ASP, should be elected based on merit only. 

• Richard Dicker moreover stated that States Parties should be more active in defending the Court against external attacks.

Summary of the Event:

By means of opening the event, H.E. Mr. Christian Wenaweser, Permanent Representative of Liechtenstein to the UN (and former ASP president) shortly introduced the ongoing efforts to strengthen the ICC. One of these initiatives is a review conducted by independent experts, a topic widely discussed at this year’s ASP. Most of the event and subsequent discussion evolved around this Independent Expert Review (IER). H.E. Mr. Michael Imran Kanu (Ambassador/Deputy Permanent Representative for Legal Affairs, Permanent Mission of the Republic of Sierra Leone to the UN) welcomed and supported the principles underlying the review process, while remaining concerned about the Court’s lack of inclusion. All regions should be included in the Court’s processes, including African states. As historically the Rome Statute has not always reflected smaller states, it remains important to stress equal participation. This is also important for the Independent Expert Review: a lot depends on who is appointed, both competence and geographical representation are of the highest importance. Mr. Imran Kanu expressed hope the Review will lead to recommendations for improvements of the Court as well as the ASP and affirmed Sierra Leone’s full support to the process. 

Richard Dicker, director of the International Justice Program of Human Rights Watch, reiterated the importance of learning from tribunals such as the SCSL and ICTY. These examples show that when judicial institutions face problems in terms of managing an ambitious mandate, such issues may be solved through creating an independent expert review. While having been involved in the ICC’s mission for over 25 years, Richard Dicker stressed that civil society organisations are not a fan club and recognize the Court’s disappointments, both in its practice and its policy. It is imperative for the legitimacy and relevance for the ICC to overcome these shortcomings and improve over the coming years. The Review is considered a welcome development and focus should be placed on independence and expertise, according to Mr. Dicker. The experts undertaking the review should be independent from the Court, from States Parties, and from civil society or any other entity seeking to direct the research. As to expertise, it is imperative that the individuals tasked with this review are civil practitioners who have worked in complex criminal cases and are familiar with the investigation, prosecution, and the management of complicated proceedings. Furthermore, Richard Dicker continued, the recommendations resulting from the review should not be used by states to beat the Court over the head, but instead should be acted upon appropriately. In other words, States Parties tendency to micromanage the recommendations should be contained. At the same time, Richard Dicker emphasized the importance of realizing that the Review is not going to transform all the Court’s problems. It is up to the new generation of leadership, as well as States Parties, civil society and communities most affected, to create a common framework that will guide the Court in bringing its practice to a higher level of conduct. 

Representative Fiona McKay of OSJI predominantly spoke about the nomination and election process of judges and the prosecutor. As the ICC is a court of law, judges are the cornerstone of its effectiveness and legitimacy. At the heart of the ambition to strengthen the court lies the realization that judges are elected based on merit, meaning that they have the experience needed to carry out their functions. Certain elements of the Draft Resolution significantly improve the election process. The first problem is how judicial candidates are nominated at the national level, as too few nomination processes are transparent and merit based. Although this is a solid and necessary start, the issue should remain under review as there may be a need for further improvement after next year’s election. H.E. Mr. Wenerwarsen argued similarly that, while a lot of work has been done to ensure an inclusive (gender and geographically diverse) composition of the bench, more can be done with respect to the quality of the election process. Strengthening the ICC should not be left only to the Independent Expert Review.  

Several comments were brought forward by the audience focused on the legitimacy of the Court and its relevance to the international community. It was noted that it is difficult to present ‘the product’ that the Court is able to produce, which raises questions among States Parties about their support to the ICC. Similarly, the Ambassador to the Netherlands from Estonia exemplified that it is difficult for communities most affected to understand what the aim of the ICC is, when political leaders are brought to the Court while direct perpetrators continue to live alongside their victims. 

Lastly, the discussion focused on the possibility to uphold the independence of the Court and the integrity of the Rome Statute in the context of the attacks the Court has been facing. The panelists placed emphasis on the necessity of the willingness of States Parties to stand up. These political attacks are not only aimed at the Court as an institution but also at individuals who simply do the job they were asked to do by “all of us”. It could be helpful to draft recommendations on steps that States Parties may take as the attacks are political and therefore ask for a political response. Nevertheless, “there will continue to be attacks so long as the Court is trying to do the job that the Rome Statute mandated it to do, which is investigate and prosecute individuals, no matter how powerful the governments they serve are,” Mr. Dicker stated.  He continued that it is imperative that States Parties up their active defense of the Court and do not fall prey to considerations of whether it remains worthwhile to spend diplomatic capital on a Court that finds itself in the crossfire of the US government and whose performance might be disappointing. States Parties will have to become more active in defending the fight against impunity to counterbalance the fire and fury that the Trump administration will undoubtedly unleash on the Court if it will go forward with its investigations into Afghanistan and/or Palestine.

ASP18 Side Event: ISIS Prosecutions: Putting Iraqi and Syrian Victims’ Rights First

ASP18 Side Event: ISIS Prosecutions: Putting Iraqi and Syrian Victims’ Rights First

Day 2 (3 December 2019)

Name of the Event: ISIS Prosecutions: Putting Iraqi and Syrian Victims’ Rights First (Side Event co-hosted by Impunity Watch, PAX, and the Violations Documentation Centre)

Overview by: Maj Grasten, Affiliated Expert PILPG-NL & Kelly van Eeten, Junior Research Associate PILPG-NL

Summary of Event:

This side event on the second day of the ASP meeting addressed the urgent need and possibilities for prosecuting members of ISIS. The panel consisted of Khalil Alhaj Saleh (a Syrian activist from Raqqa and leader of a Paris-based group of family members to disappeared people whose faith remain unknown), Basma Aldakhi (from the Yazidi community, now a peace mediator in northern Iraq with the NGO, PAX), and Mazen Darwich (a Syrian lawyer and activist, Executive Director of the Syrian Centre for Media and Freedom of Expression, and known for his work in bringing Syrian war criminals to account in European courts). The debate was chaired by Frances Topham Smallwood, MENA program officer at the NGO, Impunity Watch. In the period from 2017-2019, ISIS has been militarily defeated. Now the pressing question is how to hold ISIS accountable for its crimes. Where should trials be located? In Syria, Iraq or in the home countries of foreign fighters who joined ISIS? Each option poses a host of problems that set important limitations on the possibility for fair trials. European governments have raised the concern that prosecution would be problematic due to the absence of evidence. Where can standards of accountability then most effectively be met? What is the possibility of an international(ized) tribunal? The Netherlands has recently supported this option. Yet, its location and jurisdictional scope remain to be addressed.

Importantly, the panelists asserted that the needs and aspirations of victims are overlooked in these debates on justice and accountability. More than 8000 cases of people missing after being detained by ISIS have been documented by the Syrian Network for Human Rights. At the event today, concerns were raised that the search for truth, justice, and redress by victims in Syria and Iraq will be overlooked by powerful Western states preoccupied with their own self-interests and that a predominant focus on ISIS could conceal the responsibility and accountability of other parties to the conflict (“Daesh and ISIS are one player but not the only player”, it was emphasized during the event). “This climate of impunity allows further crimes to happen”, Frances Topham Smallwood affirmed. Khalil Alhaj Saleh emphasized that to prevent Syria from remaining “a paradise for impunity”, all perpetrators shall be prosecuted and held accountable. The faith of Khalil Alhaj Saleh’s brother remains unknown since he was abducted by ISIS members in July 2014. He stressed that his situation is not unique today in Syria. Speaking from immediate personal experiences, the three speakers called upon States Parties to the Rome Statute and the ICC to incorporate forced disappearance into any investigation against ISIS, incorporate it into international policy agendas, and assume both ethical and legal leadership and responsibility. Mazen Darwich emphasized that there is a legal possibility to prosecute ISIS fighters as several states where ISIS is present are already parties to the ICC. The crime of forced disappearance is a crime against humanity.

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.