ASP18 Side Event: Head of State Immunities

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

Day 3 (4 December 2019)

Name of the Event: Head of State Immunities: Situating Nuremberg Principle III Within the Current International Legal Framework (Side Event co-hosted by Germany and the International Nuremberg Principles Academy)

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

Main Highlights:

• Immunity has been at the heart of international criminal justice since the Nuremberg principles, particularly principle number 3 that “the fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him”.

• Immunity does not equal impunity

• The International Law Commission (ILC) has been working on the question of immunity and has proposed a draft article which provides that immunity is not applicable in respect to crimes under international law.

• The question of immunity is not just being observed by the ILC, it is playing out before domestic courts as well.

• When thinking of the basis for immunity, it should appear that it does not apply to international crimes because of the core existence of immunity.

Summary of the Event:

This impressive panel was put together by the International Nuremberg Principles Academy and was moderated by Professor Claus Kreß from the University of Cologne who emphasized that the question of immunity has been present from the beginnings of international criminal justice, which can be traced back to the Paris Negotiations after World War I. The question remains of a particular interest considering the recent developments with the potential prosecution of Omar Al-Bashir. 

The first speaker was Dr. Concepción Escobar Hernandez, a member of the International Law Commission who was appointed as the Special Rapporteur for the topic of immunity in 2012. She discussed the work of the ILC on creating a series of draft articles on immunity of state officials. She reminded the participants of the differences between functional and personal immunity, and went on to discuss the considerations of functional immunity, particularly with regards to its exceptions. These exceptions include that under draft article 7, functional immunity should not apply to crimes under international law (a formulation carefully drafted as to avoid debate). Ms. Escobar Hernandez reminded that there remained some debate about the nature of the crimes under international law as they could still be considered official acts, and thus rendering the perpetrator immune. The commission decided to keep silent on the response to this debate about the nature of the crime as to avoid further debate. Another point highlighted was that the ILC continues to deal with the question of immunity and exceptions to immunity because the commission must maintain a coherent approach with regards to past reports. But the question that remains, according to Ms. Escobar Hernandez is the question of where the debate stands on immunity and impunity as the two may overlap, particularly when considering the potential politicization of the exercise of jurisdiction. 

The second panelist was Dr. Leila Nadya Sadat, a professor from the Washington University St. Louis and director of the Crimes Against Humanity Initiative, working on a draft convention on crimes against humanity. She reiterated the importance of the question of immunity as it is not just being discussed within the ILC but is an issue that is actively playing out before domestic courts. She addressed the convention of crimes against humanity and considered it essential for the question of immunity to be addressed in that convention. In the draft convention, an active decision was made to use language from articles of other conventions states have already ratified so there wouldn’t be issues of interpretation. She further highlighted that it is important for immunity to be inapplicable in situations of international crimes, particularly when looking at the appointment of individuals as heads of states for life. 

The third panelist was professor Dr. Dapo Akande from Oxford University, who started his intervention by a reflection on the nature of immunity. In his view, officials of states are immune from criminal prosecution in foreign states for two reasons. The first reason he mentioned is that functional immunity is substantive in that it is a way to instate state responsibility since the official is acting on behalf of the state. The second reason is that immunity is procedural in the sense that sovereign states may not have jurisdiction over another sovereign state. When considering the application of immunity in international crimes, Mr. Akande highlighted some arguments that were often being used to put forward the idea that immunity shall not apply for international crimes, but he refuted those arguments by saying that some were more convincing than others. For example, the argument that claims that state immunities are only applicable to sovereign acts and that an international crime is unsovereign in nature, Mr. Akande refuted by reminding that some international crimes depend on the fact that it was committed on behalf of the state to be considered international crimes. He proposes a different approach which would include looking at the reasons for which immunity was created and finding arguments there. He also spoke on the jurisprudential developments in which it has happened that foreign courts have tried state officials for international crimes, and immunity has not been invoked which highlights the underlying assumption that in practice, there is no immunity for these crimes.

ASP18 Seventh Plenary Meeting: Cooperation

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

Day 4 (5 December 2019)

Name of the Event: Seventh Plenary Meeting: Cooperation

Overview by: Raghavi Viswanath and Erez Roman, Junior Research Associates PILPG -NL

Main Highlights:

• The ICC Prosecutor called on States Parties to undertake more coordinated efforts relating to information sharing and the tracking of suspects.

• The Registrar encouraged more states to contribute to the trust fund for family visits. He also stressed on the need for states to voluntarily accept released defendants.

Summary of the Event: 

The seventh plenary meeting focused on cooperation, entitled “Inter-State and Inter-Institutional cooperation at the heart of cooperation challenges”. The meeting began with opening statements from the facilitators of the Hague Working Group - France and Senegal. Both states lamented how despite continuous efforts, the Court still faces difficulties in the enforcement of its orders. The facilitators outlined the top priorities for the working group - namely increased cooperation in the enforcement of arrest warrants, financial investigations, and voluntary cooperation agreements under Chapter IX of the Rome Statute. In light of the recent Paris Declaration, the group also seeks to explore mechanisms for the seizing of assets.

Senegalese ambassador Momar Diop then invited the panelists to share information on interstate initiatives for the effective implementation of the ICC’s mandate. Flavien Mbata (Minister of Justice, Central African Republic) spoke about how the CAR requested the Court’s intervention both in 2004 and 2014. On both occasions, CAR was able to engage in a fruitful cooperation efforts with the Court, which culminated in the opening of an investigation and the arrest of two suspects. However, he underscored the need for strengthening national capacity and full cooperation of all stakeholders. The Ambassador of Chad to Benelux spoke of the ICC’s draft plan of action on arrest strategies. The Ambassador advised the States Parties and the Court to refrain from formulations that require the UNSC to provide a mandate to peacekeeping forces to carry out arrests in Africa.

This was followed by presentations from the Genocide Network and the ENM from France, both of which stressed on the need for specialised war crimes units in States Parties. Matevz Pezdirc from the Genocide network particularly stressed the need for assistance in capacity-building and operational information sharing. He pointed out that courts in Finland and the Netherlands had begun relying on open source information in arriving at decisions. The OTP also predominantly relied on information sharing in the indictments issued regarding Libya in 2019. Besides the recommendation for national units, he recommended to set up regional networks. 

Prosecutor Fatou Bensouda then spoke of the operational challenges that the OTP faces in the enforcement of arrest warrants. She informed the Assembly of how the OTP is fully dependent on States Parties with respect to arrests since the Court lacks a police force of its own. She noted that the failure to arrest not only has serious financial implications for the Court, it also jeopardizes the collection of evidence and prevents the Court from developing useful jurisprudence. She then offered suggestions on how states can help the OTP. First, states could share information that could assist with the tracking of ICC suspects. Second, states can help the OTP identify investigative partners and create a deterrent environment that facilitates the enforcement of warrants. Third, she encouraged States Parties to proactively contribute to the ASP and UNSC and prevent cases of non-compliance.

The Court’s Registrar Peter Lewis then provided insights on potential practical cooperation opportunities. He spoke of the Court being depended on aircrafts to fly in suspects to the Hague. However, it is enormously expensive to do this commercially. Therefore, he encouraged States Parties that have military and commercial aircrafts at their disposal to enter into voluntary agreements with the Court. Second, he highlighted the need to create a network of countries willing to take in released or acquitted defendants. He commended the efforts of the Netherlands in finding interim solutions for Ble Goude. Nonetheless, in his view, such ad hoc arrangements are often too late to be effective. Therefore, an institutionalised mechanism should be preferred. Finally, he discussed the status of the trust fund for family visits. In its previous session, the ASP had set up a fund to enable relatives of the accused to visit them while they were serving their sentences or while in detention. This year, the Registry ran of funds. Therefore, he encouraged states to generously contribute to the fund.

Following this, the representative from Spain recorded Spain’s contribution to the Court’s efforts. In particular, he mentioned Law 18 of 2003 which operationalizes Spain’s cooperation with ICC. The representative concluded his statement by saying that a two-way cooperation between the ICC and the member states is what embodies complementarity. 

That brought the plenary meeting to the second part: statements from States Parties. The representative of Finland on behalf of the EU first stressed the importance of the Security Council’s support to the Court and pushed for a UN Security Council referral of the Rohingya issue to the ICC. Subsequently, he assured the ASP that the EU would continue to offer assistance where required and urges States Parties to enter into voluntary agreements and give effect to those agreements.

Several States Parties contributed to the discussion. Mexico joined the call of the EU communicated by Finland to enhance cooperation with the UN Security Council in areas such as travel bans and seizure of assets as a way to enhance the way the Court acts. Furthermore, he also called for better cooperation between the ICC and national authorities of the member states. Chile, Japan, Belgium, Italy and Gambia also encouraged states parties to sign voluntary cooperation agreements with the Court due to their importance for the effectiveness and efficiency of the Court.

Speaking on behalf of the Netherlands, Ambassador Paul van den Ijssel stressed that the witness protection programme and securing the rights of the accused was equally integral to the Court’s functions. To this end, he urged states to accept released prisoners and help the Court relocate witnesses. He spoke of the Netherlands’ efforts to support Ble Goude. However, he lamented how there was still no long-term solution in sight. 

Thereafter, the delegation from the UK listed its contributions to the OTP’s efforts. In particular, the UK made mention of its sentence enforcement agreement with the ICC (2007), its efforts to support ICC witnesses and their families, and its technical assistance to the Secretariat of the Trust Fund for Victims. The delegation also brought the Assembly’s attention to the UK’s recent outreach efforts - in financially supporting victims from the Central African Republic to attend the Bemba hearings.

The session concluded with statements from four CSOs - No Peace Without Justice, Darfur Women Action Group, the International Bar Association, and the Afghanistan Transitional Justice Group. All of them stressed the need to preserve the Court’s independence and strengthen national capacity, particularly in countries like Sudan. The IBA, in particular, noted that only five states parties have contributed to the trust fund for family visits thus far. It called on other states to contribute to the fund, and requested the ASP to consider allocating funds from the regular budget.

ASP18 Side Event: Victims’ Participation: Lessons for the future

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

Day 3  (4 December 2019)

Name of the Event: Victims’ Participation: Lessons for the future (Side Event co-hosted by Italy and Chile)

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

Main Highlights:

• Paolina Massida noted that victims should be considered full-fledged parties to the proceedings at the ICC and should not be referred to and sees an as ‘participants’.

• Francisco Cox stated that victims should have a more central role in the Court. 

Summary of the Event:

H.E. Ms. Maria Teresa Infante, ambassador of Chile, opened the event underlining the importance of victim participation. She introduced the three panelists: Mr. Cuno Tarfusser, former judge at the ICC,  Mr. Francisco Cox, representative of Victims at the ICC, and Ms. Paolina Massidda, Principle Counsel on the Office of the Public counsel for victims.

After the introduction the presentations started with a video addressing the importance of justice for victims. The video showed several victims, speaking about justice and what it would mean to them if they got the opportunity to speak before the Court. They stated that impunity is not an option and stressed the importance of reparations. 

Cuno Tarfusser started by stating that he has always been in favor of victim participation. From his personal experience he witnessed multiple times that victim participation is part of a healing process. It can provide victims with a feeling that the authorities are behind them and give credit to what they are saying. However, from the perspective of a criminal lawyer victim participation must be in balance with the primary function of criminal proceedings. Mr. Tarfusser said that he believes that we should try to find a better balance. According to Mr. Tarfusser, the fact that victim participation is in the Statute, but it is not regulated makes that the judges have to decide about the concrete implication. This creates different practices which is not the best way to do it. 

He further raised three issues on victim participation: 1) unclarity about the definition of a victim, 2) the scope of participation, and 3) deadlines. He finally stated that it cannot be that victims can request to participate at any moment during the proceedings as he believes there must be a deadline for requesting participation. 

Francisco Cox opened his speech by talking about this experience in the Ongwen case. He stated that he disagrees with the fact that the definition of victims is unclear, since according to him all that are affected by a crime fit into the concept of a victim. He continued his story by stating that victims should be at the center of the courtroom and that in the villages he went to speak with victims, the wish to participate among victims is huge. It might feel like distant justice to them, but is probably the only justice they will get. Therefore it is also part of their healing process to see justice happening. 

Paolina Massidda took over after this and stated that she had mixed feelings about the statements by her fellow panelists. She agreed that it is important to understand the scope of the participation and that participation of victims is important. She finally stated that victims should be full-fledged parties to the proceedings and also be able to appeal decisions.

ASP18 Side Event: Genocide Victims in Iraq and the Middle East Testify

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

Day 3 (4 December 2019)

Name of the Event: Genocide Victims in Iraq and the Middle East Testify (Side Event hosted by the Kurdish National Coalition for ICC)

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

Main Highlights: 

• Abdullah Nawrolly urged for accountability for companies that sold chemical weapons to Saddam Hussein.

• Participants called for the international community to acknowledge the international crimes the Kurds have suffered from as well as reparations for Kurdish victims.

Summary of the Event:

The session opened with a film about the Kurdish genocide. The film highlighted the centuries of violence the Kurds have endured. From the Halabja chemical attacks to the Anfal genocide to ISIS’s mass displacement of Kurdish Yezidis, to Iran’s hangings, to the abduction of Barzani tribesman, to the killing of Kurdish kolbars, to their persecution in North Kurdistan and Turkey, to the current violence the Kurds are facing in North-Eastern Syria. The video also showed images of victims’ bodies covered in burns from chemical weapons.    

The former governor of Halabja City, Abdullah Nawrolly, spoke about his relatives, who were some of the 5,000 people killed in the chemical bombings in Halabja. He said there are remainings of chemical attacks, injured people who need more medical attention, displaced people, and children missing. Nawrolly called for the companies who sold the chemical weapons to reimburse the victims, the Iraqi government to stop using chemical weapons, assistance for finding missing children, the establishment of a psychological care center, the creation of a genocide research center, and international support in reconstructing the city.

I. Muhammed Ayad, a lawyer, and representative of the Iraq people of Kurdistan, spoke next. He discussed the history of genocide in Iraq and the problems the country faces in holding individuals accountable in the Iraqi courts. Ayad explained how the Rome statute principles are the basis for the Iraqi laws on the court. He argued that there has not been the proper implementation of such laws. Therefore, victims have struggled to receive compensation from the courts. He went on to explain how the companies who supplied Saddam Hussein with chemical weapons must be held accountable and provide victims with compensation.  

Another lawyer for the Northern Kurd area in Syria spoke next on how the Kurds still consider themselves victims even after defeating ISIS. He covered the need to protect all ethnic and religious groups inside Syria through a resolution with neighboring states and the United Nations. Additionally, he noted that the ICC must recognize the crimes against humanity, genocide, and war crimes committed in Syria. He concluded by calling on powerful countries to promote international security on the ground rather than escaping their responsibilities to hold all individuals who commit atrocity crimes accountable.    

Hymn Haseeb Qader Aljabbari, from Kirkuk, discussed the previous suppression of Kurds in Kirkuk and the re-occurrence of similar policies today. Kirkuk is a disputed area according to Article 140 of the Iraqi Constitution. Historically the area has been shared by the Kurdistan Regional Government (KRG) and the Iraqi government. However, beginning in 1960, the Iraqi government brought Arabs from other parts of the country to Kirkuk to cause a demographic shift. Furthermore, they prohibited the Kurdish language and took lands from Kurds. Throughout this time, there was a massive decrease in the Kurdish population and an increase in the Arab population. Article 140 of the Constitution was supposed to return the land to the Kurds. Still, in 2003, the Iraqi government brought troops back into the area and began re-enacting similar policies from the 1960s using military force. Hymn Haseeb Qader Aljabbari warned that Kirkuk is a ticking time bomb. 

The final speaker, Azad M. Ameen Abdalrahman, told the story of how Iraqi forces killed 480 of the 500 inhabitants from his village in May 1998, in what he calls “the second Halabja.” Ameen Abdalrahman called for the international community to recognize this mass killing as an act of genocide and visit his village to see the atrocities victims went through.           

The event concluded with a brief discussion on the media, NGOs, and security agency investigators' poor treatment of Yezidi victims of sexual violence. 

ASP18 Side Event: Book Launch - Défense devant les juridictions pénales internationales

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

Day 2 (3 December 2019)

Name of the Event: Book Launch “Défense devant les juridictions pénales internationales” (Side Event hosted by the Democratic Republic of Congo) 

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

Main Highlights:

• The book “Défense devant les juridictions pénales internationales” was written with the objective of filling a gap in available French literature on defenses. 

• The book is composed of a first part which is a comprehensive academic review on the relevant framework for international penal law, as well as a practitioners’ approach on how to build a strong defense considering the problems, traps and solutions.

Summary of the Event:

Mr. Brice Van Erps opened the discussion with an English introduction into the book, discussing the composition. The first part of the book is an academic and comprehensive review of the framework of international penal law. The second part is more of a guide for practitioners for building a solid defense in front of international jurisdictions. 

Mr. Philippe Currat presented the book in French and gave an insightful approach into the different difficulties he had encountered which led to the development of this book, including the lack of available literature in French on international penal law. Furthermore, he emphasized how difficult it is to talk about defenses, particularly relating to defenses in international courts as it is very technical. Mr. Currat touched upon the purpose of this book to serve as a guide to compile the experiences of attorneys who passed the bar in different countries. Attorneys underlined the difficulties of building a strong defense in international jurisdictions because of the different experiences from different national judicial trainings. Finally, a point that was extensively stressed was the importance for all parties of building a strong defense. They discussed that having a solid prosecution is also important for the defense and this point is equally stressed in the book.