ASP18 Side Event: Raising the Bar- Improving the Nomination and Election of Judges to the ICC

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

Day 2 (3 December 2019)

Name of the Event: Raising the Bar – improving the nomination and election of judges to the international criminal court (Side Event co-hosted by South Africa, Uruguay, and the Open Society Justice Initiative (OSJI)). 

Overview by: Hester Dek, Intern PILPG-NL

Main Highlights:

• James Goldston emphasized that qualifications should be more important than the campaign during the election process. 

• Judge Ekaterina Trendafilova underlined the importance of judicial education: “if cases are in the hands of judges who do not know how to handle evidence, the outcome will never work”. 

• Alejandra Vicente noted that the ICC is doing better at gender parity than most UN bodies, the ICJ, and some regional human rights courts, however progress is not always sustained.

Summary of the Event:

“This debate is quite belated, it was due a long time ago” 

This side event was organized in the wake of the latest report by the Open Society Justice Initiative (OSJI) “Raising the Bar: Improving the Nomination and Selection of Judges at the International Criminal Court”. The panel consisted of James Goldston (Executive Director OSJI), Judge Ekaterina Trendafilova (President, Kosovo Specialist Chambers), Niels Blokker (Professor of International Institutional Law, Leiden University), and Alejandra Vicente (GQual Secretariat member and Head of Law, REDRESS). The event was chaired by Angela Mudukuti (Senior International Criminal Justice Lawyer, Wayamo Foundation).

James Goldston commenced by discussing the report and emphasizing that until now candidates with the strongest campaigns, rather than the strongest qualifications, have proven most likely to win.

Judge Ekaterina Trendafilova continued the discussion by stressing the importance of judicial education, questioning how one could handle difficult legal matters without sufficient knowledge of the law, as parties are always testing the competence of the judges. “Unless we turn ourselves inside to see what we can do to improve the way judges do their job, we are not going to improve the perception of an outsider of the ICC”. She stressed that “this debate is very much belated, it was due a long time ago”. She highlighted the importance of judges being educated consistently: “if cases are in the hands of judges who do not know how to handle evidence, the outcome will never work”.  

Thereafter, Niels Blokker reflected on the question “how typical is the ICC in how the judges are nominated and elected based on your research?”. According to Blokker, there is no prototype, each tribunal is unique. He emphasized the strong presence of civil society at the ICC. According to him, there isn’t enough research on the governance of international tribunals.

Next, Alejandra Vicente discussed the importance of gender parity in tribunals, treaty bodies, and special procedures. She explained that this aim is recognized in treaties, yet it is hardly realised in tribunals. She noted that many countries have only nominated men, using otherwise opaque nomination procedures. On this point of gender parity, Judge Trendafilova pointed out, however, that while gender parity is very important, eventually “you want to be chosen based on your qualifications, not your gender.” 

In assessing gender parity at the ICC, Ms. Vicente responded that the ICC is doing better than most UN bodies such as the ICJ, and some regional human rights courts. If a state wants a chance, they need to nominate women: “it does not allow states to get away with the argument ‘there are no qualified women available in my country’”. She stressed that progress should be more sustained.

Mr. Goldston then referred to the recommendation of the report that states ensure transparent, merit-based nomination processes. Besides that, he highlighted the equitable gender representation, the importance of asking nominees to demonstrate evidence of their legal knowledge, and the need to check fact-check their credentials. 

Lastly, the floor was opened for questions and comments. Questions were raised regarding remuneration for judges, employment security for judges, the requirement of high moral character, and judicial collegiality. On the first question, Mr. Goldstone answered that the issue of remuneration is not a priority at this point. On the question of high moral character, Ms. Vicente responded that previous cases of harassment should be taken into account in the nomination process. Finally, collegiality was said to be important, but with full respect for the independence of the judge. 

ASP18 Sixth Plenary Meeting: Review of the Court

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

Day 3 (4 December 2019)

Name of Event: Sixth Plenary Meeting: Review of the Court

Overview by: Rachel Grand, Sindija Beta, and Kelly van Eeten, Junior Research Associate PILPG-NL

Main Highlights:

• 17 States Parties and four CSOs provided statements on the Review of the Court. Many of them emphasized the need for the review to be independent, transparent, and inclusive. 

• Several States Parties referred to the upcoming judicial and prosecutorial elections in their statements. 

• Some States Parties mentioned the importance of geographical representation and gender balance at the Court. 

Summary of the Event:

The sixth plenary meeting was dedicated to the Review of the Court. First, ASP President O-Gon Kwon introduced the topic. He referred to three documents relevant for the Review of the Court: The Matrix, the Terms of Reference (ToR) for the Independent Expert Review, and the Draft Resolution for the Review of the Court and the Rome Statute System, to be introduced later this week. He noted the timeline for the Independent Expert Review would start in January 2020, with stakeholder consultations between February and March, and a final report in September 2020. Therefore “time is of the essence,” the ASP president concluded. 

The Principals of the Court first provided statements on the topic of review. The ICC President, Chile Eboe-Osuji, voiced the Court’s support for the review and said that it was long overdue. Additionally, he noted that the funding of the Court needed specific attention. He put figures into perspective by referring to the resources of some major domestic investigations. He furthermore touched upon the current circumstances of the conditions of service of judges (expressing regret to be in disagreeance with Mr. Blok, Minister of Foreign Affairs of the Netherlands). The ICC Prosecutor, Fatou Bensouda, voiced her support for the independent expert review, as well as the steps her office has already taken for reform. She stressed the need for the review process to respect and preserve the Prosecutorial and Judicial independence, examine all parts of the system, and build on the steps the Court has already taken. The Registrar, Peter Lewis, warmly welcomed the review and voiced his interest in the review paying particular attention to cooperation, as well as geographical representation and gender balance.

17 States Parties and four CSOs provided statements, addressing the work on the review process. Many of them emphasized the need for the review to be independent, transparent, and inclusive. Many also urged for the cooperation of States Parties in the expert review, acknowledging States Parties’ responsibility. Finland, speaking on behalf of the EU, emphasized the need for state cooperation in implementing the objectives of the review.

Several States Parties urged for concrete action points to be implemented and to focus on the outcomes, including The UK, stating “reform is a process, not an event”. Other States Parties such as The Netherlands, New Zealand, and Brazil, also emphasized the need for action once the independent expert review is complete. 

Several States Parties focused on the upcoming elections of six judges and the Prosecutor in 2020. The International Federation for Human Rights (FIDH) cited the elections as an opportunity for change in the Court. Canada for instance emphasized the role of the ACN in the selection of candidates. Human Rights Watch (HRW) discussed the importance of electing both the Prosecutor and judges based on their merit, noting concern with regard to the politicization of the elections.

The geographical representation and gender balance remained a topic during the sixth plenary meeting. Both the Registrar and several states referred to it. Finland on behalf of the EU, New Zealand, Japan, Argentina, Uganda, and the African Network for International Criminal Justice mentioned gender balance, geographical representation, or both. Japan stated that underrepresentation and no representation at all of the states for the ICC has been a problem for years and urged that steps are taken towards the universality of the Rome Statute.

Throughout the discussion on the Review process, several States Parties, including Finland on behalf of the EU, Costa Rica, and the Netherlands, as well as HRW, underlined the importance of the fight against impunity. The Prosecutor stated that no state should be able to abuse human rights with impunity. Sierra Leone mentioned that the review of the Court could help close the impunity gap. France noted that the ICC is a major innovation and yet a young institution with high expectations. 

ASP18 Fifth Plenary Meeting: Budget

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

Day 3 (4 December 2019)

Name of the Event: Fifth Plenary Meeting: Budget

Overview by: Keri van Douwen, Francisca de Castro, Sindija Beta, Junior Research Associates PILPG-NL

Main Highlights:

• The ICC Registrar and the Chair of Budget and Finance provided statements and the audit reports were presented for consideration. 

• The proposed budget was subject to stringent measures taken by the court and it represents the lowest percentage increase since the ICC was established. 

Summary of the Event:

The third day of the ASP continued with a plenary meeting on the ICC’s 2020 budget. The ICC Registrar, Peter Lewis and the Chair of the Committee on Budget and Finance, Mr. Hitoshi Kozaki presented. The external auditor finally presented the audit reports for consideration.

The Registrar of the Court, Peter Lewis, opened the fifth plenary meeting by acknowledging the investment of States Parties to the ICC even through financial challenges. He stressed the importance of the Court showing results from these investments, as well as showing stringency and precise budgeting by the Court. He touched upon the new strategic planning process that has been made recently compared to the first-year budget process and how the registrar’s office’s strategic plan, mixed with the other organs of the court’s plans created a complete set for strategic plans for the Court. These strategic plans provide a clear roadmap for how they can improve the core functions of the court through a more efficient administration of key duties and thus resulting in a reduction of costs.

The proposed budget for 2020 amounts to 146.94 million euros, which signifies an increase of 2.39 million, or 1.7% increase from the approved budget of 2019. Mr. Lewis emphasized that this budget was taken as a result of stringent measures taken within the court, and highlighted that this represents the lowest percentage increase since the ICC was established. Furthermore, he talked about how they found an additional 1.3 million euros of savings within the capital replacements of the court premises, which is why they did not see the necessity to put forward a proposal that would ask for the full costs of changes to the common system.

One of the concrete proposals made by the registrar was to continue the discussion as to find sustainable financial solutions which would be in line with the Committee of Budget and Finance’s (CBF) recommendations. Furthermore, he emphasized that they had requested an addendum to increase the budget by 230.000€ to cover the legal aid for Mr. Al Hassan’s defense team, as his confirmation of charges was posterior to the submission of the proposed budget.  However, he acknowledged that if the CBF’s proposed budget proposal were to be voted by the ASP, it would be a 0.7% increase over the 2019 budget. 

He stressed that there has been one notable unforeseen development since the session with the CBF which has been the augmentation of the living costs in The Hague, which significantly impacts the living allowance of the staff compared to 2011, the year the last assessment was conducted. The increase of living costs placed more pressure on the court’s budget, needing an augmentation of around 2 million euros.

The Chair of the Committee on Budget and Finance (CBF), Mr. Hitoshi Kozaki, noted that the forecast implementation rate is expected to be 99.4% against the 2019 approved budget and that the CBF has received 3 contingency funds of 2.25 million. The CBF has scrutinized the proposed budget, which represents an increase of 2.4 million euro or 1.7% against the 2019 budget.  Hitoshi Kozaki also emphasized that the court review process should include the committee and should keep them informed of all changes.

The chair of the audit committee, Samir Abu Lughod, outlined that in the summer of 2019 the audit committee received an interim report by the court on courts values and effects framework with representatives of all organs on their current efforts in the area. He emphasized the importance of creating an institutional culture founded on values and effects and encouraged the development of a wide ethics charter for the court. He also asked the States Parties to approve extension of the mandate of auditors which cover the financial statements of the Court and Trust Fund for Victim’s (TFV) in the year 2020, as well as to undertake at least one performance audit.

Mr. Didier Migaud the First President of the Cour des Comptes in France was to present the external auditors report from 2019. His remarks were delivered by a colleague as Mr. Migaud could not make it. There were three reports of the audit which included the financial status of the ICC, the TFV, and the budgetary procedure of the ICC. 

The first report, relating to the financial status of the ICC showed that 2018 ended on an accounting deficit of 7.1 million euros, which is a decrease compared to the 2017 deficit of 13.8 million euros. The 2018 deficit represents 4.8% of the Court’s budget. The external audit did not reiterate last year’s remarks on a risk of a cash crisis which could threaten the courts activities because the collections received during the second semester of 2019 allowed the risks to be managed. The report warns the States Parties about the impact the delay in payment could have on the ICC’s workings. 

The second report, relating to the audit of the TFV, found that the budget for the TFV was of 2.5 million euros, which was complemented by 3.6 million euros of voluntary contributions. The TVF shows an accounting deficit of 1.1 million euros. 2018 showed an increase in voluntary contributions compared to 2017. 

The third report discussed the efficiency of the budgetary procedure of the ICC.  It was found that the current structure of the ICC budget poses a problem on budgetary coordination. The current structure makes it impossible to determine a result-based budget. Second, there is a problem of budgetary coordination. It is recommended to have a less strict interpretation of Art. 42.2 of the Rome Statute which would allow the creation of communal administrative services. 

The audit was based on the four phases of the budgetary process: with regards to the preparation, the recommendations are the same as last year, and the creation of a communal administrative service. With regards to the adoption, to simplify the budget document to re-center it on the questions about a budget and for it to be released no later than January. Regarding the execution, they suggested some recommendations on the special funds, and the delegation of some of the responsibilities of the ASP to the bureau so that they can take particular measures in case of a new liquidity crisis. Finally, concerning the execution of the budget, their recommendation is based on the content of the annual report and they suggest removing some unnecessary information in the report’s annex.

In application of article 12 of the financial rules and regulations of the ICC, the external auditor has established three reports throughout the year 2019. These reports are on the financial statements of ICC for the year that ended on 31st December 2018, the TFV, and the ICC’s budget process. 

The external auditor highlighted several points. For instance, he mentioned that the Court’s cash inflow for the second semester of 2019 has brought an end to the cash flow crisis flagged in last year’s audit reports. Nevertheless, the Court is left with some uncertainty vis-a-vis some States Parties outstanding budget payments and the difficulty of knowing when to expect payment. 

He further noted that: 

• Thirteen out of twenty-four recommendations made by the external auditor in 2018 have been applied. 

• The voluntary contributions made to the TFV have increased from 2.6 million euros to 2.9 million euros compared to last year. It is recommended to note the voluntary contributions separately in the annual or multi-annual report because they constitute more than half the resource flow for the funds. This will give the ASP a better understanding of where the ICC’s budget sits. 

• The structure of the budget of the Court is tied to its major programs.  While this structure upholds the legal imperatives of the ICC and the independence of the OTP, it means different budget lines cannot be clustered if they have been listed per major activity.  As a result, result based budgeting cannot be implemented which risks double ups across the different silos. It might be recommendable to take a more flexible interpretation of the way that these services are organized. That is, consider more common sources rather than separate silos. 

• Regarding the size of the Court, it would be worthwhile to have a more clear description of all mechanical relationships and the way they work together to be able to come up with more realistic figures of what their size means. 

• The external auditor notes that the budget increase exceeds inflation, meaning that staff and non-staff costs are continuing to rise. 

• Regarding non-staff costs, it would be worthwhile to implement a zero budget growth scenario and to justify each single expense. 

• To control staff costs, greater internal mobility has to be ensured. 

• The presentation and proposal of the budget goes into too much detail rather than focusing on central elements. A simplified document that looks only at the most important budget issues is necessary. This could preferably be disseminated no later than end of January.

Negotiations of the budget will continue in closed meetings where states will vote on the adoption of the proposed budget.

ASP18 Side Event: Technology and 21st Century Fact-Finding: Setting & Standardizing Processes for International Criminal Investigations

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

Day 2 (3 December 2019)

Name of the Event: Technology and 21st Century Fact-Finding: Setting & Standardizing Processes for International Criminal Investigations (Side event co-hosted by Liechtenstein, Berkeley Human Rights Centre, and Global Rights Compliance) 

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

Main Highlights:

• The documentation by (civil society) organizations must improve so it can be more often used in court.

• The Basic Investigative Standards (BIS) APP might contribute to this improvement since it guides users to use more professional documentation methods. 

Summary of the Event:

H.E. Mr. Christian Wenaweser, Ambassador of Liechtenstein and former ASP president, opened the event by stressing the importance of technology in current fact-finding in international criminal proceedings. Former US Ambassador-at-Large for War Crimes Issues, Stephen J. Rapp was next to speak. He talked about the ICC and the possibility of UNSC referral of situations. He stressed the need for reinforcement of civil society documentation in that matter.

Ambassador Rapp continued by providing two “exciting” examples of journalist platforms and CSOs on documentation and investigation. The first example was about Bellingcat, an independent international collective of researchers, investigators, and citizen journalists. He mentioned Bellingcat’s investigation with regard to the downing of MH17. Bellingcat’s research had been crucial in finding those responsible. Secondly, he mentioned the investigation into hospitals bombings in Syria by Russia. An analysis of unpublished Russian Air Force radio recordings, plane spotter logs, and witness testimonies enabled The Times in May to trace attacks on four hospitals in just 12 hours and tie Russian pilots to each one. Ambassador Rapp continued with an example related to the Rohingya in Myanmar: Facebook is full of anti-Rohingya material and calls for violence. He stated that on the down side, perpetrators can more easily incite mob violence, on the plus side, however, there is a lot of material to tie perpetrators to acts on the ground. 

After his speech, Ambassador Rapp gave the floor to Ashley Jordana, senior legal consultant at Global Rights Compliance. Jordana started her talk with an explanation on an app GRC developed. The Basic Investigative Standards (BIS) app is developed to assist those working in the field of human rights violations. It is a freely available app, which is also operational in areas with little internet connection. The app enables the user not only to document, but also provides guidance on operations in their mandates and minimum standards for the investigation of international crimes. GRC developed a pilot in July in several countries, including in Bangladesh, Mali, Palestine, Syria, Sudan, Ukraine, Venezuela, and Yemen. The pilot phase will end in January 2020 after which the app will be ready for the global market. 

After an explanation of the app, Jordana continued by stressing the need for improvement of documentation by CSO’s and other organizations. She referred to Syria, where a lot of footage on the war is available. However, this footage can’t be used since it isn’t correctly preserved and the chain of custody is incomplete. This led to the question whether CSO’s should engage in documentation at all. Jordana stated that the reality is that they do. Therefore GRC tries to guide and assist CSOs so that evidence documentation improves. 

Alexa Koenig, Executive Director of the Human Rights Center at UC Berkeley, continued by stressing the need to “speak on the same level” when it comes to cooperation with several different disciplines. She identified a need for general terminology in the field of collecting evidence to better capture the knowledge available. 

The last person that took the floor was Lindsay Freeman, senior legal researcher for the Human Rights Center at UC Berkeley and head of drafting the International Protocol on Open Source Investigations. Lindsay also referred to the downing of MH17. She pointed out the issue of methodology of the Bellingcat investigation. Bellingcat started investigating and piecing together information just hours after the crash. However, they did not have guidance on this, which made their research difficult to apply in a court situation. She recalled that documentation should be operational and practical, but also usable in a court. 

PILPG Junior Research Associate Kelly van Eeten enquired into the outsourcing of open source investigation by organizations like Bellingcat. Ms. Freeman replied, stating that outsourcing can become dangerous quickly. In situations like this, a crowd mentality can turn violent and this violence can turn to the offline world from the online space. This does not mean that crowdsourcing in itself is bad, but the proper way to do it has yet to be developed. 

ASP18 Side Event: Strengthening the ICC and the Rome Statute system: perspectives from Latin America and the Caribbean

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

Day 2 (3 December 2019)

Name of the Event: Side Event - Strengthening the ICC and the Rome Statute system: perspectives from Latin America and the Caribbean

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

Main Highlights:

• Latin America speaks from experience when talking about international crimes.

• Main areas of concern were the revision and strengthening of the Court, notably through the independent expert review

• Topics discussed during this side event included the role of victims, particularly in reparations, the system of elections, cooperation, and the preliminary examinations in the region in situations in Venezuela and Colombia, and the possible opening of an examination into the situation in Mexico. 

Summary of the Event:

The event began with opening remarks by the Uruguayan ambassador to the Netherlands, H.E. Ms. Laura Dupuy Lasserre who reaffirmed the importance of the process of revision of the ICC, and the region’s compromise to this process, as the second largest regional group. She acknowledged that this process will not only take place through support and cooperation, but that it requires continuous work, particularly in the region. 

Ms. Carmela García, fellow at the Americas to the Coalition for the ICC (CICC), opened the panel discussion and mentioned the areas which were to be touched upon by panel members, including the revision process to strengthen the ICC, the role of victims, the elections system, cooperation, and the preliminary examinations in the region. 

Ms. Mariana Pena, Senior Legal Officer at Open Society Justice Initiative (OSJI) talked about the upcoming judicial and prosecutorial elections and the current discussion on strengthening the election system. OSJI published a report on the election and nomination of judges in which it studied these processes in different countries. The report ultimately found that nomination was not always carried out in the best way possible. The project of a resolution which would enhance the nominations of judges is currently in review, and four points were emphasized: the importance of states’ upright practices regarding the nomination of judges, giving the committee charged with the election of judges a more reinforced mandate so that it can produce a more detailed report, the modification of the electoral calendar so that nominations can be submitted earlier, and the heightened transparency and support from states. Although the project is not perfect, Ms. Pena affirmed the importance of adopting this project in its current version. Furthermore, OSJI has investigated the importance of evaluating any improper conduct from potential candidates, particularly regarding allegations of sexual misconduct. As put forward in Article 36 of the Rome Statute, the judges are to be of high moral character, impartiality, and integrity. Thus, any allegation of sexual misconduct could be fatal as it could create an unsafe work environment. 

The panel continued with Maria Elena Vignoli from Human Rights Watch (HRW) who went on to discuss the opportunities that the independent expert review will bring to the strengthening of the ICC. HRW believes that it is an appropriate step to enhance the functioning of the Court, so long as it is fully independent and expert-based. Ms. Vignoli said the Court should not see the review’s recommendations as mandatory but that it should remain up to them to take the actions put forward in the review, as it would be counterproductive to use the recommendations to micromanage the court. She further discussed the importance of inclusivity and transparency of the expert review, particularly consulting civil societies. However, HRW does not consider that this review is a panacea or a solution to all problems, but that, if the review is carried out in a credible and legitimate way, it will create a great opportunity to provide guidance and a common framework for the new leadership.

Ms. Antonia Pereira de Sousa, external relations and cooperation officer at the ICC Registry, highlighted four points of regional strategy carried out recently. Cooperation was the first point, including cooperation in the laws of implementation as they are fundamental to realize necessary activities, regardless of whether there’s a preliminary examination in the country. These necessary activities include the relocation of witnesses who need witness protection, the carrying out of sentences, and interim release. The second point was the improvement of balanced geographic and gender representation. Third, the universality of the Rome Statute and finally the promotion of information to promote the participation of the region in the Court were discussed. 

The Chair of the Board of Directors of the Trust Fund for Victims, Felipe Michelini reiterated the importance of the ICC as an institution that was complicated to establish, and how a new Rome Statute would be difficult to implement. He talked about the difficulties in Latin America with regard to the ICC’s work, as well as the Rome Statute, and he emphasized four points. First, he noted that knowledge of the Rome Statute and the ICC in Latin America is very poor. Second, he mentioned the need for the region to have strong laws on implementation so that changing political systems won’t be able to derogate such laws. Third, on the subject of victims, he noted that the ICC has long been inspired by the Inter-American Court of Human Rights jurisprudence. And finally, he underlined that the TFV needs to improve the capacity to obtain funds from the private sector and commitment from states, as states can do better than what they are currently doing. 

Finally, Jimena Reyes, American Director for the International Federation of Human Rights (FIDH) also highlighted the importance of the independent expert review for the Latin American region. Ms. Reyes further talked about the preliminary examinations in the region. First, she discussed the situation in Venezuela which was referred to the ICC by several States Parties. She explained how important this referral has been, and noted that Venezuela should perceive it as an opportunity to reflect on the current situation and as the opening of a space for dialogue, without which the situation cannot improve. She further touched upon the preliminary examination in Colombia and how professionals in Colombia have perceived this examination as not legitimate due to the duration of it, and the few results. However, Ms. Reyes affirmed that FIDH has extensively accompanied Colombia during the peace process and they found that, although the prosecutor did not open an investigation into paramilitary leaders in 2009, the preliminary examination has been an undeniable opportunity for dialogue and a wave of change in how to talk about peace in Colombia. Last, the situation in Mexico was mentioned, as there has been a discussion about referring the situation in Mexico to the ICC. Ms. Reyes underlined that a preliminary examination is not to be regarded as an embarrassment but rather as an opportunity for a space for dialogue and a situation which would support local justice.