ASP19 Side Event: Launch of the ICC Office of the Prosecutor’s report on Preliminary Examination Activities 2020

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

15 December 2020

Name of the Side Event: Launch of the ICC Office of the Prosecutor’s report on Preliminary Examination Activities 2020 (hosted by the ICC Office of the Prosecutor (OTP))

Report by: Raghavi Viswanath, Research Associate PILPG-NL

Highlights: 

• 2020 saw four preliminary examinations reach completion, with the OTP deciding not to investigate the situation in Iraq/United Kingdom.

• The OTP recently, on December 11, announced that the situations in Nigeria and Ukraine met the legal criteria for investigation.

• The OTP continues to monitor domestic proceedings in Guinea and Colombia, developing a benchmark framework to be shared with stakeholders in 2021; it expects to complete subject-matter determination in the matter of the Philippines by mid-2021.

Summary of the Event: 

The annual launch event, organized alongside the 19th ASP, saw ICC Prosecutor Fatou Bensouda present the final Preliminary Examinations Activities Report of her mandate. Bensouda began by reiterating the crucial filtering function preliminary examinations (PEs) fulfill in the architecture of the Office of the Prosecution (OTP). PEs help the OTP identify situations that merit investigation and allow the OTP to coordinate responses with domestic judicial mechanisms. 

At the end of 2019, the OTP had expressed its intention to make a decision in several ongoing PEs in 2020, before the end of Bensouda’s tenure, and several PEs would advance to the investigation stage. Much in line with these predictions, the OTP concluded four preliminary examinations in 2020, with three of them – Palestine, Nigeria, and Ukraine – slated for investigation. The PE into the situation in Iraq/UK was closed with a decision not to open an investigation.

Prosecutor Bensouda took the opportunity of the launch to note the OTP’s most pressing challenge, as she has emphasized throughout her tenure: the chronic mismatch between the resources allotted to the OTP and the demands and expectations placed upon it. As the OTP strives to meet its projections, it is compelled to prioritize some situations over others. However, prioritization alone cannot resolve the resource gap as new situations become ripe for investigations and new changes occur in the life cycle of current cases/investigations. Therefore, she called on States Parties to recognize these challenges and equip her successor with the means necessary for the robust functioning of the OTP. In so doing, the OTP can implement its broader functional vision – of evidence preservation, operational planning, and witness management. In this regard, Bensouda further noted her intent to consult the incoming Prosecutor on all these complex issues. 

Prosecutor Bensouda then provided updates on the situations covered in the OTP’s report. With respect to the situation in Palestine, the OTP found a reasonable basis to proceed, on account of war crimes committed in the West Bank including East Jerusalem and the Gaza strip. There was no reason to believe that an investigation would not serve the interests of justice. However, the Prosecutor found it necessary to confirm that the ICC could in fact exercise jurisdiction. Given that the sovereignty of Palestine was an issue of fundamental importance, it would certainly be litigated during the life cycle of the situation. The Prosecutor saw merit in clarifying jurisdictional scope early on, so as to clear the subsequent path for effective investigation.

On the situation in Afghanistan, which is already at the stage of investigation, the Prosecutor announced that her Office had received a request for deferral from the State of Afghanistan under Article 18 of the Rome Statute. The OTP agreed to Afghanistan’s request to provide for additional time due to COVID-19  and hopes to receive an update from Afghanistan early next year.

The Prosecutor then addressed her recent decision no to investigate the situation in Iraq/UK. Lamenting the criticisms her decision has been receiving, she defended it as an intellectually honest effort to apply the law to the facts. The central question in Iraq/UK was whether the authorities in the UK had taken steps to shield suspects from criminal accountability. Here, the OTP sets out a two-fold requirement. First, it needs to be satisfied under Rule 48 of the Court’s Rules that shielding occurred. Second, given that the involved states may ask for a deferral under Article 18 of the Statute, the OTP has to be able to demonstrate why the domestic processes are inadequate in order to persuade the Court not to act on the deferral request. In this case, her Office was unable to substantiate the allegations of shielding or evidence of genuine unwillingness on part of domestic authorities to investigate or prosecute the perpetrators. Therefore, it would have been disingenuous for the OTP to find otherwise, she noted, specifically referencing her well-known record of taking decisions without fear or favour (“I was the one sanctioned doing my job by the book and will continue to do so”). The Prosecutor hoped that time would allow the Court’s friends to soberly reflect on the OTP’s decision.

Addressing other key developments, Bensouda referred to her December 11 announcements that the situations in Nigeria and Ukraine met the legal criteria to open an investigation. The insurgency led by Boko Haram and the counter-insurgency had resulted in unprecedented violence that has already claimed 41,000 lives. While a greater degree of responsibility rests with Boko Haram, both sides appear to have committed war crimes and crimes against humanity. Meanwhile, in Ukraine, the ongoing armed conflict in Eastern Ukraine has resulted in 10,000 deaths and many thousand civilians injured over the past six and a half years. The OTP found evidence of intentional attacks directed against civilians and civilian objects, including in Crimea. With respect to both Nigeria and Ukraine, the OTP has extended its support to domestic investigations and prosecutorial efforts.

The OTP has also made progress in other examinations. In Venezuela, it recently published findings on subject matter jurisdiction. Both in Guinea and Colombia, the OTP continues to assess domestic proceedings and intends to share a benchmark framework with all stakeholders for comments, that can be transplanted in future examinations. Finally, on the examination of the Philippines, although impacted by the COVID-19 pandemic, the OTP expects to arrive at a decision in the first half of 2021. In addition to these, the OTP hopes to complete subject matter determinations on the new referrals by Venezuela and Bolivia by mid-2021.

The Prosecutor concluded her presentation by addressing changes introduced to prosecutorial policies/practices. The OTP has now begun to undertake gender analyses in its PEs – where it assesses how the underlying gender norms influence the commission of crimes. This is relevant both for the identification of crimes as well as the determination of gravity. In an effort to enhance the effectiveness and efficiency of PEs, the OTP has also begun integrating its preliminary examination teams early, assigning senior lawyers and analysts to all sub-teams in order to facilitate internal harmonization and knowledge transfer, and contributing to the preparation for the operational roll-out of future investigations. 

The launch event ended with questions from the audience. This saw the OTP team engage with challenging questions on the examination in Venezuela, Guinea, and Iraq/UK. Responding to a question about the selection of particular crimes in Venezuela, Rod Rastan from the OTP observed that at the stage of opening a situation/filing an article 15 request, the OTP focuses on one or more episodes of violence that are representative of the broader victimization that permeates the community under scrutiny. At this stage, the OTP cannot engage in a more comprehensive investigation of all the crimes committed. However, once the Article 15 threshold is crossed, these crimes are covered. In conclusion, the OTP team spoke of how the handover preparations are underway, with the Office working on a code of conduct and a legacy document. Prosecutor Bensouda reiterated the need to enlarge the OTP’s resources in order to increase its productivity. She ended the event with a note of thanks to the friends of the Court and the many interlocutors whose feedback allowed her mandate to be so fruitful.

ASP19 Side Event: The Trust Fund for Victims: Now & Going into 2021

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

14 December 2020

Name of the Side Event: The Trust Fund for Victims: Now & Going into 2021 (co-hosted by Ireland and Sweden)

Report by: Alexandrah Bakker, Junior Research Associate PILPG-NL

Highlights: 

• Despite challenges arising from the COVID-19 pandemic, the Trust Fund for Victims has expanded its operations in 2020 to include seven countries, and intends to continue expanding in 2021.

• The Trust Fund for Victims welcomes the Independent Expert Review and has integrated its recommendations into the TFV’s strategic plan for 2020-21.

• The Trust Fund for Victims expressed a commitment to improving gender equality in its operations.

Summary of the Event: 

H.E. Kevin Kelly, Ambassador of Ireland to The Netherlands, opened this side event on the second day of the 19th ASP by applauding the opportunity this event provides to focus on the central role victims hold in the work of the ICC. Ambassador Kelly noted that despite the difficulties of the COVID-19 pandemic, 2020 has been a particularly busy year for the Trust Fund for Victims (TFV). The TFV has expanded its operations in Mali, the Central African Republic, and the Democratic Republic of the Congo, and has announced its intention to open an assistance program in Georgia. Ambassador Kelly encouraged the TFV to outline its intention to implement the recommendations of the Independent Expert Review (IER) and to maintain a transparent line of communication.

Mama Koité Doubia, Chair of the TFV Board, observed that victims continue to suffer on multiple fronts during the pandemic, due to a lack of adequate treatment and sustainable support. Nonetheless, Mama Koité affirmed the TFV’s continued dedication to supporting victims. She further noted that the TFV has taken into consideration the recommendations of the IER, and has integrated these recommendations into its strategic plan.

Mr. Pieter de Baan, Executive Director of the TFV, presented the side event as an opportunity for the TFV to paint a picture of its operations, as part of its desire to build an increased communications presence and increased public accountability. Mr. de Baan outlined the activities of the TFV throughout 2020, which included an increase in its number of implementation partners; implementing the reparations awards in the Katanga case; conducting victim identification and verification processes in Lubanga and Al Mahdi; and strengthening its organizational base in The Hague and in the field. The TFV also adopted two plans in 2020: 1) a contingency plan that focuses on impact and performance, and 2) an activity plan that includes the response of the TFV to the IER’s recommendations. In 2021, the TFV intends to expand its staff capacity, invest in fundraising and communication, and develop policies for gender mainstreaming. The TFV hopes to complete the implementation of reparations in Katanga, to begin implementation in Lubanga and Al Mahdi, and to commence assistance programs in three additional countries.

Ms. Franzisca Eckelmans continued by describing the specific role victims can have during and after trial, as legal participants to the trial, and as individual beneficiaries of reparations awards. She emphasized that victims are consulted by the TFV at all stages, including in the design of the implementation plan and during the actual implementation.

Ms. Aude Le Goff, program manager for the TFV in Mali, shared her experience from TFV operations in Mali. Ms. Le Goff outlined the challenges the TFV faces in Mali, including access and security, ensuring that women benefit equally, and time constraints. She emphasized the importance of complementarity between TFV operations and domestic processes, noting that there is a strong ongoing transitional justice process in Mali, and that the TFV is operating only until Mali is ready to resume operations by itself.

Mr. Scott Bartell, program manager for the TFV in Uganda, observed that the TFV’s assistance programs, which focus on vindicating victims’ rights and rendering valuable support to victims of crimes within the ICC’s jurisdiction, are to be distinguished from humanitarian aid. In response to a question in this regard, Mr. Bartell and Ms. Le Goff noted that the manner in which they work with implementing partners in situation countries involves a relationship of accompaniment and cooperation. Mr. Bartell went on to describe the changes made by the TFV and its implementation partners in an attempt to ensure continuity during the COVID-19 pandemic.

To conclude the event, Ms. Kristine Erlandsson, representative of Sweden, noted that comprehensive justice does not only involve holding perpetrators to account but also, importantly, requires a victim-centered approach. She noted that the TFV has acknowledged the need for improvement in developing a gender-sensitive approach, which should involve the participation of men and boys in work for gender equality.

“Your Users, Your Liability” - How the ECtHR Established Liability for Hate Speech on Online News Platforms

By: Paul Weber, Junior Research Associate, PILPG-NL

Online platforms have become one of the most important ways in which we communicate today.  The European Court of Human Rights (the Court, ECtHR) recognized that the internet “provides an unprecedented platform for the exercise of freedom of expression”.  Yet, hatred and incitement to violence are common on these fora.  In many cases, authors of such comments hide behind the anonymity provided to them by the internet.  Therefore, victims often find themselves unable to hold the authors directly accountable for their comments.  The ECtHR has addressed this issue by finding that online news platforms are liable for improperly managing hate speech in their user’s comments.  This blog post will outline how the Court established the liability of online platforms for the comments of their users.

 The ECtHR’s case law on the liability of online platforms for unlawful user comments began with Delfi AS v Estonia.  This case concerned the news platform Delfi.  Delfi was held liable for failing to remove personally insulting and threatening user comments under one of its news articles.  The article concerned the business practices of a local company.  Delfi AS removed the comments only after receiving the information that the affected company had filed a lawsuit against it.  In the domestic legal proceedings, the Estonian courts held that the comments violated the affected company’s personality rights and were thus not protected by freedom of speech.  The domestic proceedings imposed legal liability on Delfi AS, as it had failed to provide a system for quick removal of hateful comments.  Subsequently, Delfi AS complained before the ECtHR that it was a violation of  freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). 

 The “Delfi Criteria”

In its decision, the ECtHR developed four criteria to evaluate a platform’s liability concerning comments (paras. 142-143).  These were: the context of the comments, what steps the company took to prevent or remove the unlawful comments, the alternative of holding the actual authors of the comments accountable instead, and, lastly, the consequences of the domestic ruling for the company.  It is necessary to have a closer look at the Court’s application of those criteria to the Delfi AS case to understand what it meant by each of them.

 First, in examining the context of the comments, the ECtHR found that the platform was not a “passive, purely technical service provider” (para. 146).  The actual authors could neither edit nor delete their comments once published.  Thus, Delfi AS had ultimate control over the comments and economically profited from them. 

Second, the Court found that Delfi AS employed upload filters to delete comments containing certain hateful words, and, on several occasions, administrators had deleted hateful comments on their initiative.  However, in the present case, these measures had failed to remove comments containing hate speech without delay and without having been notified.  There, the ECtHR found that the Delfi AS’ response to the comments was insufficient. 

Third, the Court evaluated whether holding the actual authors liable for their comments might be an alternative approach.  The Delfi news platform allowed its users to comment anonymously.  In the eyes of the ECtHR, this anonymity stood in the way of redress for the victims and, hence, could not be an alternative approach in this case. 

Fourth, the Court did not believe that the consequences of the domestic proceedings for Delfi AS were overly harsh.  The company only had to pay a small fine and was not substantially hindered in its operation, according to the ECtHR.  For these reasons, the Court held that the Estonian ruling did not violate freedom of expression. 

With these four criteria, the ECtHR laid the groundwork for its jurisprudence on online news platforms.   Their liability arises, because news platforms “provide for economic purposes a platform for user-generated comments on previously published content” (para. 116).  In the eyes of the ECtHR, this new case law does not extend to social media platforms and blogs.  Such platforms do not provide content of their own and the individuals providing actual content do so as a hobby.  In the eyes of the ECtHR these platforms therefore do not have the same responsibilities as news platforms.

 The Legacy of Delfi AS

Less than a year after the Delfi AS decision, the ECtHR affirmed and refined its criteria for online platform liability in MTE and Index.hu v. Hungary.  Here, the Court additionally evaluated the effect that the comments in question had on the persons that they addressed. With these refined criteria, the Court has evaluated several more cases.  However, this new case law is far from uncontroversial. 

First criticism came with the Delfi AS judgment itself, as Judges Sajó and Tsotsoria wrote a joint dissenting opinion.  The two judges particularly questioned the focus on professional news platforms, remarking that “Freedom of expression cannot be a matter of a hobby” (Diss. Op. para. 9).  Other commentators, like Lorna Woods, criticized the implicit rejection of a notice-and-take-down system as sufficient, as the Court had found that platforms would have to act on their initiative.  However, as Neville Cox observed, Delfi and the case law that followed also provided “a bulwark against the enhanced possibilities for the exercise of freedom of expression de facto provided by the internet”.

Conclusion

The Delfi criteria, for the first time, allowed victims of hate speech online to hold the economic profiters, namely the platform providers, responsible for the wrongs they endured.  In doing so, the Court put greater limits on the freedom of speech online.  However, thereby, it also addressed the issue that victims are often left without redress due to the anonymity provided to authors of hate speech by the internet.  Several Council of Europe member states place greater responsibility on service providers online.  A notable example is Germany and its network enforcement act, which increases the duties of social media platforms.  Thus, the Delfi case law of the ECtHR may be the first of further interesting developments in the jurisprudence on hate speech online.

ASP19 Side Event: Justice and Accountability for Sexual and Gender-Based Crimes Against the Rohingya

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES

11 December 2020

Summary of the Side Event

Name of the Side Event: Justice and Accountability for Sexual and Gender-Based Crimes Against the Rohingya (Co-hosted by No Peace Without Justice, Amnesty International, the Association against Impunity, the International Federation for Human Rights (FIDH), Fortify Rights, Global Centre for the Responsibility to Protect, Global Justice Center, Human Rights Watch, Parliamentarians for Global Action and the Women’s Initiatives for Gender Justice (WIGJ) & the Embassy of Bangladesh to the Netherlands)

Report By: Alexandrah Bakker and Marielotte van Ballegooijen, Junior Research Associates PILPG-NL

Highlights:

• The panelists called on individuals and governments to help rebuild the Rohingya community by putting pressure on the government of Myanmar and its investors, such as China.

• The panelists stressed the need for educating Rohingya survivors on how they can participate in proceedings.

• The panelists emphasized the importance of recognizing both male and female victims of sexual violence, due to the stigma surrounding these crimes for men and boys.

Summary of the Event:

On the final day of ASP side events, several civil society organizations together with the Embassy of Bangladesh to the Netherlands hosted this side event to discuss justice and accountability for sexual and gender-based crimes against the Rohingya. Mr. Riaz Hamidullah, Ambassador of Bangladesh to The Netherlands, opened the event by emphasizing Bangladesh’s continuing support for the Rohingya in Bangladesh. Mr. Hamidullah denounced the international community for their failure to act in the face of undisputed crimes. He mentions that human rights, as universal norms, must not be applied selectively. Accountability is a necessity, and therefore cannot be left to the will of certain actors. He particularly emphasized Bangladesh’s commitment to pursuing accountability for sexual and gender-based violence (SGBV) in armed conflict.

Mr. Tun Khin, President of the UK’s Burma Rohingya Organisation, observed that despite the provisional measures pronounced by the International Court of Justice (ICJ), Myanmar continues to deny the Rohingya’s existence and exclude them from participating in society. They did this through, for instance, the general elections held on November 8, 2020. Fighting has increased over the last six months, which has seen the situation deteriorate for all people in the Rakhine State. The Rohingya have found themselves in overcrowded camps in which basic needs are not met, while the Myanmar military continues to commit extra-judicial killings and gender-based violence. Mr. Khin called for greater action from the international community. He advocated for more states to support trials and investigations, as well as to pressure Myanmar to improve the human rights situation of the Rohingya so they can be repatriated. In particular, he called for support for Rohingya communities to ensure that they remain at the center of any action that is taken on their behalf.

Ms. Yasmin Ullah, a Rohingya activist, stressed the need for a victim-centered approach to legal proceedings. This requires a conscious effort by the ICC OTP to reach out to victims and advocate to minimize the risk of re-traumatization of all victims, including victims of SGBV. Ms. Ullah emphasized the instrumentalization of SGBV by the military in Myanmar and its long-term consequences, including long-term victimization, sex trafficking, and community breakdown. She appreciated the way SGBV was highlighted by lawyers in the Gambia v. Myanmar case at the ICJ. This case is empowering, she noted, because while Myanmar’s government has consistently denied the experiences of the Rohingya, international actors show support to the victims. Ms. Ullah especially called for support and investment in Rohingya civil society, specifically focusing on youth. She noted that while accountability processes may take years, community rebuilding cannot wait. She called for action by all civil society actors to rebuild the community.

Prof. Imtiaz Ahmed, Director of the Centre for Genocide Studies at the University of Dhaka, responding to the previous speakers, noted that the state reproduces hate. He referenced the situations of the Biharis in Pakistan and the Jewish population in Germany as examples in which the state mitigated and eliminated hatred between groups by refusing to reproduce it. As a result, while he considers the legal processes to be important, he mentions that this is ultimately a political struggle. Mr. Ahmed listed four ways in which the international community can take action. He noted that much of this action can be taken not only by states or political bodies but also by individuals. First, they can pressure Myanmar. Second, they can pressure states who invest in Myanmar, such as China, Japan, and India. Third, on a micro-level, they can pressure individual companies who invest in Myanmar. Fourth, Mr. Ahmed called for the establishment of a political organization of the Rohingya at the international level.

Ms. Laetitia van den Assum, an independent diplomatic expert and former Dutch ambassador, provided concluding remarks by reiterating Mr. Tun Khin’s call for the provision of education to displaced Rohingya. She added that a lot of healing and reconciliation is necessary before repatriation is possible. Ms. Van den Assum additionally stressed the importance of explicitly including male victims in conversations relating to SGBV. It is well documented that Rohingya men and boys are among the many victims of sexual violence and that these victims may be less inclined to speak up due to the additional stigma attached to such crimes for the male gender. To conclude, Ms. Van den Assum emphasized the urgency of taking measures to appropriately protect witnesses who participate in legal proceedings.

ASP19 Side Event: The Key to Unblocking Security Council Referrals: Vetoes & Atrocity Crimes

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES

11 December 2020

Name of the Side Event: The Key to Unblocking Security Council Referrals: Vetoes & Atrocity Crimes (Co-sponsored by the Permanent Mission of Sierra Leone to the United Nations, the Permanent Mission of Costa Rica to the United Nations, The Kingdom of the Netherlands, and the International Center for Transitional Justice (ICTJ))

Report by: Alexandrah Bakker and Kristoffer Burck, Junior Research Associates and Tamia Brito, Research Associate PILPG-NL

Highlights:

• The use of a veto in cases concerning atrocity crimes can be incompatible with international law, specifically jus cogens norms, the “Purposes and Principles” of the United Nations (UN) Charter, and treaty obligations.

• The panelists agreed with Prof. Trahan’s proposal that, as a pathway to unblock the deadlock at the UN Security Council, the UN General Assembly could request an Advisory Opinion from the International Court of Justice, clarifying the legality of the use of vetoes before atrocity crimes.

• Such a request requires coordinated efforts by like-minded states and civil society organizations.

Summary of the Event:

The event began with introductory remarks by Ambassador Alie Kabba, Permanent Representative of Sierra Leone to the UN. He pointed to the special importance of dialogue this year, with the health and economic crisis weighing heavily on the international community. Yet, Ambassador Kabba highlighted that cooperation is ever more crucial with regards to an older problem: the use of veto power by the five permanent members (P5) of the UN Security Council (UNSC). The African Union, having expressed discontent, demanded a reform of the UNSC to ensure a fair and regionally balanced system. H.E. Kabba mentioned that accountability for atrocity crimes is closely linked to the equitability of the UNSC and that the power of the veto should at least be democratized among all regions of the world to allow responsible use to engender good faith negotiations, accountability, and transparency.

Professor Jennifer Trahan proceeded to introduce the main issue. She laid out that the veto power used by the P5 in atrocity crimes (genocide, crimes against humanity, and war crimes) is at odds with fundamental components of the international legal system.  She used the situations of South Africa, Rwanda, Darfur, Myanmar, and Syria to illustrate instances where vetoes blocked action or accountability. According to Professor Trahan, the signaling effect of these vetoes goes beyond the concrete situation and indicates to possible perpetrators around the world that they might be protected from prosecution. She then introduced her latest publication entitled ‘Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes’.  In her publication, Prof. Trahan argues that veto power in situations of atrocity crimes is incompatible with international law on three grounds: 1) the protection brought by jus cogens norms prohibiting genocide and crimes against humanity, 2) the “Purposes and Principles” of the UN laid out in Articles 1 and 2 of the UN Charter, and 3) foundational international treaties. In particular, Prof. Trahan referred to the 1948 Genocide Convention and the 1949 Geneva Conventions, which require states, including the P5, to take reasonable action within their power to prevent atrocity crimes. While this due diligence obligation is difficult to quantify, Prof. Trahan considered that situations where at least nine members of the UNSC are prepared to take measures yet a P5 member blocks a resolution are to be understood as an antithesis to the due diligence obligation. She lastly provided three possibilities to move forward: 1) states should make these legal arguments against using the veto in cases of atrocity crimes in as many fora as possible, 2) the UNGA should issue a resolution reflecting the legal limitations of the use of vetoes in situations involving atrocity crimes, and 3) the UNGA should request an Advisory Opinion from the International Court of Justice (ICJ) on the legality of vetoes under these circumstances.

Ambassador Hans Corell, former Under-Secretary-General for Legal Affairs and legal counsel at the UN, agreed with Professor Trahan’s characterization of the problem and potential solutions. He reminded the audience that the UN is a remarkable organization, but its ability to act in the face of atrocity crimes is weakened by the Security Council’s dependence on the P5. He mentioned the prevention of any meaningful action in Syria due to two P5 members. He seconded Prof. Trahan’s suggestion that the UNGA should ask the ICJ for an Advisory Opinion to establish legal clarity. Ambassador Corell concluded by calling on states to acknowledge possible threats due to climate change and ensure that the UNSC is prepared to address future conflicts. 

Justice Richard Goldstone, former Prosecutor of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, and Chair of the Independent Expert Review of the ICC and the Rome Statute System, started his comments by clarifying that a considerable number of atrocity crimes are not covered by direct ICC jurisdiction. While some justice might be better than no justice, he cautioned that the UNSC referrals of situations to the ICC could be an important mechanism to bridge this gap. However, due to vetoes by Russia and China, the UNSC has failed to refer the situation in Syria to the ICC, perpetuating impunity.  Attempts by the UNGA to gather evidence, for instance through the International, Impartial and Independent Mechanism for Syria (IIIM), are of little value if the UNSC does not refer the situation to a court or special tribunal. Justice Goldstone described Prof. Trahan’s proposal for the UNGA to ask the ICJ for an Advisory Opinion as a constructive approach to achieve clarity on the legality of the veto in such situations. 

Ambassador Allan Rock, former Minister of Justice and Attorney-General of Canada and former Canadian Ambassador to the UN, continued by pointing out that the prevention of atrocity crimes as a threat to peace and security is at the core of the UNSC’s mandate. After the failure to prevent genocide in Rwanda, states agreed to respond to these situations in a timely and decisive manner. Yet, according to Ambassador Rock, the reality in Myanmar and Syria seems different. In both cases, the UNSC did not exercise its authority to refer the situation to the ICC due to the threat of a veto. Ambassador Rock recalled that veto power was originally designed to apply in situations of substantial disagreement only and that P5 members should refrain from utilizing veto power in cases in which they are themselves involved. The political blockade allows for impunity for atrocity crimes and hurts the credibility of the UN as a whole. Ambassador Rock lauded the legal approach by Prof. Trahan as a pathway to challenge the application of the veto power in cases of atrocity crimes through the request of an ICJ Advisory Opinion. To follow this path, Ambassador Rock urged other member states to join forces within the UNGA.

With a focus on the situation in Syria, Prof. Trahan elaborated that the blockade of an ICC referral by a veto resulted in impunity for recorded crimes against humanity and war crimes committed by government forces and counter-government groups. The blockade further prevented the investigation of the alleged genocide committed by ISIS/Daesh against the Yezidi people, eliminating the potential deterring effect of such an investigation. Prof. Trahan clarified that while France and the UK are willing to refrain from using the veto in situations of atrocity crimes, the other three P5 members would not. She pointed out that her argument is legal, rather than political, as voluntary commitments are impracticable. Ambassador Rock added that there is virtually no political cost involved for France and the UK to commit to voluntary restraint, as they can rest assured that the other three permanent members would not give in to this commitment.

Ambassador Corell emphasized that international law has significantly developed since 1945 and that the UN Charter should be understood as a living document that requires interpretation in the current context. Measures such as veto power should, as Prof. Trahan explained, be understood in light of emerging jus cogens norms and treaty law. An authoritative opinion of the ICJ could help clarify the situation. Justice Goldstone added that the threat of a veto alone has immense discouraging effects and hinders resolutions even before they are brought to the floor. Yet, he acknowledged that bringing resolutions to a vote at least requires the vetoing power to explain its decision.

The session concluded with questions from the audience on the practicalities required for veto reform. In particular, the audience inquired into what reform should look like, what the consequences of an unlawful veto should be, and what steps are necessary to move towards an ICJ Advisory Opinion. Prof. Trahan replied that Charter amendments are themselves subject to vetoes and thus other proposals, such as Liechtenstein’s suggestion that every veto decision should be discussed in the UNGA, are necessary. Ambassador Rock added that the justifications of P5 states for their veto are of limited value and often evade real discussion. He remarked again that the merit of Prof. Trahan’s argument lies in the fact that it is legal and does not require the P5 members to be persuaded. Prof. Trahan added that an ICJ Advisory Opinion would make future concrete cases possible, thus opening the possibility to attribute responsibility to a state. She underlined that to obtain an Advisory Opinion, states, civil society organizations, and academics must all argue for the necessity of such a decision. Justice Goldstone noted that African states have changed their attitude towards referring situations to the ICC, and a majority now sees ICC referral as a tool to create equity. With the African and Latin American continents being denied a veto, they could be critical in efforts to refer this question to the ICJ. Ambassador Rock found it encouraging to see African states expressing a more positive attitude towards the Court and described the practical process of like-minded states joining forces to achieve a majority within the UNGA.

Asked about potential soft law instruments, Prof. Trahan clarified that the current French/Mexican initiative can be understood as soft law, but that her approach signifies a move to consider hard law. Several aspects of preventing atrocity crimes, including facets of the Responsibility to Protect (R2P) are already enshrined in hard law. These are exactly the aspects that can render an application of a veto in cases of atrocity crimes unlawful. In closing the event, Ambassador Corell and Justice Goldstone urged states to engage in diplomatic efforts to achieve support within the UNGA and they called upon the Assembly of State Parties to recognize this issue. Prof. Trahan concluded with a hopeful statement, underlining that like-minded states, NGOs, and responsible states indeed have an avenue to pursue.