ASP19 Side Event: Accountability in Nigeria: Time for Action

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

17 December 2020

Name of the Side Event: Accountability in Nigeria: Time for Action (Hosted by Amnesty International)

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

Highlights: 

• The Office of the Prosecutor (OTP) of the International Criminal Court recently announced the conclusion of its preliminary examination into the situation in Nigeria, with the statutory criteria for opening an investigation met.

• The speakers welcomed the OTP’s decision, emphasizing that various actors continue to commit crimes with impunity throughout Nigeria.

Summary of the Event: 

Ms. Samira Daoud, Regional Director for Amnesty International (AI) in West and Central Africa, opened the side event by noting its timeliness. On the one hand, the OTP announced the conclusion of its preliminary examination of the situation in Nigeria, and on the other, Boko Haram has claimed responsibility for the recent abduction of over 500 students in Katsina State, of which over 300 remain missing.

Mr. Netsanet Belay, Research and Advocacy Director for AI, welcomed the OTP’s conclusion of its preliminary examination as a major milestone in the struggle for accountability in Nigeria. Nonetheless, he noted that this is not enough: the OTP must urgently seek permission to open an investigation, and this investigation must begin as soon as possible while action is taken on evidence preservation, witness protection, and outreach to victims in Nigeria. Mr. Belay gave three reasons for the continued urgent need for accountability. First, crimes continue to be committed, with no end in sight, by both Boko Haram and Nigerian security forces. Second, Mr. Belay sees no promising prospects for prosecution of perpetrators of those crimes from within the Nigerian government. He noted that while there have been countless inquiries, these have not been designed or conducted with a view to facilitating prosecutions and their findings have never been made public. Third, Mr. Belay cautioned that further delays will sabotage the successful prosecution of crimes in the future, as delays will result in evidence and witness tampering. He finished by recognizing the challenges faced by the OTP from a lack of resources, but adding that he will not accept a situation in which the OTP declares that justice for victims in Nigeria is too expensive.

Ms. Hamsatu Allamin, an activist from North East Nigeria, described the situation in that region. She noted that the North East is the least developed part of the country, with education largely inaccessible and knowledge of human rights virtually non-existent. She added that both insurgents and counter-insurgency forces grant themselves absolute power and operate with impunity, indiscriminately murdering citizens and abducting young girls into sexual slavery. Ms. Allamin observed excitement in Nigeria about the ICC’s progress in the situation, noting that impunity has become the norm in the North East.

Ms. Agnes Callamard, UN Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions, agreed with previous comments on the extent of impunity in Nigeria. She reflected on her own experiences in Nigeria, when the Nigerian authorities did not respond to her with aggression but simply failed to engage in a meaningful dialogue with her over her findings. She described the situation in the entire country as an “injustice pressure cooker,” with injustices simmering in many localized conflicts as well as on a national level due to widespread insecurity. Within this context, she found a high level of resentment and grievance, most of which is expressed through “toxic ethnoreligious narratives,” or, in counterterrorism terminology, “extremist ideologies.” Four broader contextual factors added to her worries: a nationwide population increase, the increased rate of extreme poverty despite growth on the national level, increased environmental degradation and desertification, and the proliferation of small and military grade weapons. Ms. Callamard noted that the history of Nigeria and other comparable situations makes it clear that tackling human rights violations also requires addressing these broader contextual factors. Despite all this, Ms. Callamard was hopeful that recent instances of large-scale demonstrations in the End SARS movement, which were based neither on ethnicity nor religion but on a hope for a better Nigeria, show that it will be the young population of Nigeria who finally decides that “enough is enough.”

Mr. Rod Rastan, Legal Advisor at the OTP, explained that while the OTP quickly concluded that crimes within the Court’s jurisdiction had been committed in Nigeria, its decision to open an investigation was delayed as it tried to engage with the Nigerian authorities and encourage them to take action at the national level. He added that, moving forward, the OTP will continue to work in a collaborative spirit with Nigeria, while continuing to build its cases if the Nigerian authorities do not make progress. In response to Mr. Belay, he added that the OTP is already taking steps to identify opportunities for evidence preservation and operational planning, and is working on identifying issues in cooperation and security. 

To conclude, Ms. Obianuju Catherine Udeh, an artist and activist better known as DJ Switch, described the plight of Nigerians. Ms. Obianuju Catherine Udeh noted that while it was hopeful to see Nigerians standing up for their country in the End SARS movement, they continue to face violence for doing so. She described the unprovoked use of force by Nigerian authorities against protestors at the Lekki toll gate, adding that this was not an isolated incident. She emphasized the irony of this violence when the constitution states that ensuring the security and welfare of the people is the primary purpose of the government. As such, she noted that the End SARS movement has transformed from a movement against police brutality into a movement against bad governance. She concluded by reflecting on a popular Nigerian saying according to which “the problems never end,” adding that this does not mean that the problems cannot be solved.

ASP19: The Hague, 14 - 16 December 2020

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

The Hague, 14-16 December 2020

Report by: Tamia Brito, Research Associate, Alexandrah Bakker, Junior Research Associate, and Emma Bakkum, Assistant Counsel PILPG-NL

Highlights:

• Due to COVID-19 restrictions, the 19th session of the Assembly of States Parties (ASP) takes place in two parts: from 14-16 December in The Hague and from 17-23 December a resumed session in New York (elections). 

• During the General Debate, States Parties addressed several key issues. Many welcomed the report of the Independent Expert Review, condemned US sanctions and other threats taken against the Court, and urged States Parties to provide the Court with the necessary resources to fulfill its mandate. 

• The ASP approved the Court’s 2021 programme budget, in line with the Committee on Budget and Finance (CBF)’s recommendations, of €144,673.9 million (a 0,7% decrease of the 2020 budget). 

• The ASP adopted six resolutions: on the proposed program budget for 2021; on cooperation; on the remuneration of judges; the Omnibus Resolution (adopting similar language as the previous year); on procedures for adoption of decisions by the ASP during the 19th session due to COVID-19; and on a possible second resumption of 19th session.

• States Parties did not reach consensus on a resolution regarding the Review of the Court and the Rome Statute system, proposing a mechanism to report on the implementation of the IER’s recommendations, and informal consultations will continue during the resumed session.

• The ASP adopted a resolution on a possible second resumption of the 19th session of the ASP, foreshadowing the postponement of the election of the Prosecutor to early 2021. 

• The OTP launched its 2020 Report on Preliminary Examination Activities, also noting that it will share a report in the first quarter of 2021 assessing the IER recommendations focused on the OTP.  

Summary of the 19th ASP (The Hague)

Facing the challenges of a global pandemic, the Assembly of States Parties to the International Criminal Court convened for its 19th session (part 1) at the World Forum in The Hague, The Netherlands, combining a small in-person presence with a larger virtual audience. With only eight NGO representatives allowed to enter the World Forum, PILPG reported from the ASP with one delegate present in The Hague and a vast number of PILPG-ers worldwide following the ASP virtually.

With the resumed 19th session scheduled to start this week (17 December) at the UN headquarter in New York, US, this post provides an overview of what happened during the first part of the ASP in The Hague, from 14-16 December 2020.

Day 1 (14 December) 

First Plenary Meeting 
The President of the ASP, O-Gon Kwon, opened the first plenary meeting on Monday with a minute of silence or meditation in respect of victims worldwide. The meeting continued with a keynote address by the Minister of Foreign Affairs of the Netherlands, host of the Court, Stef Blok, who addressed the ASP through a pre-recorded video. Blok set the tone for the General Debate, as States Parties’ often covered the same key topics. Throughout his statement, Blok strongly condemned the “deeply disturbing” measures taken against the Court and its staff by the US government and called on the US President-Elect, Joe Biden, to revoke the sanctions. He further called upon States Parties to be firm with the Court and to allow for critical reflection. States should cooperate with the Court, he noted, as the “wheels of justice won’t grind if there is nobody to turn them.” Blok concluded by welcoming the IER Report and called for the ASP to swiftly implement its recommendations.

The keynote address was followed by the adoption of the agenda and statements from ICC staff, all nearing the end of their term. In his final opening address, O-Gon Kwon reflected on his time as ASP President, his first diplomatic and political position, and expressed his gratitude. He reflected on some of the challenges the Court has faced during his tenure, including a “very heavy agenda of important matters for the future of the Court and the Assembly”, and the additional challenges brought by a global pandemic. He reflected on Rome Statute’s universality, specifically in his region, the Asian Pacific region, and - while proud of welcoming Kiribati as a State Party - he expressed hope for more Asia Pacific states to join the Rome Statute in the near future. He concluded that “we have a collective obligation to future generations to care for the development of the international justice system.”

The ASP President welcomed statements of the President of the Court, the Prosecutor, the Registrar, and Chair of the Trust Fund for Victims. ICC President Chile Eboe-Osuji addressed the Assembly through a pre-recorded video, expressing his gratitude to those who have supported and encouraged him and highlighting achievements during his term as ICC President.

ICC Prosecutor Fatou Bensouda addressed challenges faced by the Court this year, describing the year as one of “resilience and commitment in the face of great adversity.” Besides the COVID-19 global health crisis, she noted the Court was subjected to “unprecedented and wholly unacceptable threats, attacks and sanctions in the past year,” and expressed hope that the US “reverses its aggressive policy of antagonism towards the Court.” While dealing with these adversities, the Court has had an extremely active and busy year, with the IER process as well as core mandate functions, with seven cases in different stages of the proceedings and several successes (transfer to the court of Mr. Abd-Al-Rahnan and Mr. Gicheru, ongoing preparations for trial in the Yakatom and Ngaïssona case, start of trial in the Al Hassan case, and nearing conclusion in the Ongwen case). In her final address to the ASP, Bensouda stressed to her successor and those electing her/him that “assuming office as Prosecutor means an unyielding devotion to the pursuit of international criminal justice, without fear or favour, even in the face of adversity, and a commitment to honourably and with integrity discharge a complex multi-faceted mandate, one that is largely without precedent with investigations and preliminary examinations covering situations spanning the globe.” Bensouda, further forewarning her successor, referred to two of the most significant challenges of the OTP: “While one important challenge has been the political environment and other external conditions in which the Office operates, another great challenge might well be the incompatibility of the mandate with the resources allocated to it.” She highlighted her commitment to hand over an office that is accountable at all levels, both in terms of performance and professional conduct. Reflecting on the IER, she underscored that the OTP is making an inventory of priority recommendations that can be implemented in the short and long term, and identifying those that will not affect efficiency or effectiveness. Bensouda announced that a full report on this will be issued in the first quarter of 2021. Finally, she concluded by expressing pride in the OTP always paying homage to the Rome Statute and its goals, without fear or favour. 

ICC Registrar Peter Lewis, through his statement, paid most attention to the challenges of the COVID-19 pandemic and the ways in which the Court continued its work throughout 2020. He then touched upon the second and “more profound challenge” of US Executive Order 13928. He further underscored the challenge the Court faces with its fragile liquidity situation due to an unprecedented level of states in arrears. Lewis thanked states who paid their contributions in advance and encouraged others to comply with their outstanding commitments. Finally, he referred to the IER report, noting the important step the Court has taken in recruiting a Focal Point for Gender. In the months ahead, the Court will also issue stronger policies on harassment and the disciplinary process.

Mama Koité Doumbia introduced the Trust Fund for Victims’ (TFV) report, touching upon the legacy of former Board Chair, Felipe Michelini, who passed away this year. She expressed that the TFV is profoundly committed to collaborate with the Court, States Parties, as well as victims who are at the core of the functionality of the ICC and the Rome Statute system. She further spoke about two main aspects of the work of the TFV, impact and performance, noting that the TFV extended its work to seven countries this year.

Second Plenary Meeting 
The second plenary meeting saw the General Debate, with 27 States Parties addressing the Assembly in-person or through a written statement or prerecorded video message, due to the constraints brought by COVID-19. The General Debate started with an in-person statement from Mr. Taylor Lubanga, on behalf of the President of the Democratic Republic of the Congo, Mr. Félix Tshisekedi. In his statement, President Tshisekedi shared the honor it was for him to address the ASP, highlighted the DRC’s efforts in the fight against impunity for the most heinous crimes, and underlined the disastrous consequences those crimes can bring. He expressed that the ICC requires commitment and cooperation to succeed, and he called for all states to continue their contribution to those endeavors.

Following the DRC, 26 States Parties delivered statements, including France, Austria, Sweden, Georgia, Costa Rica, Spain, Nigeria, Estonia, Liechtenstein, Sierra Leone, United Kingdom, Finland, Denmark, Belgium, Trinidad & Tobago, Portugal, Norway, Cyprus, Luxembourg, Italy, Slovenia, Czech Republic, Switzerland, El Salvador, Germany, and Palestine. Several other states submitted written statements, found on the ASP website. 

States Parties used the General Debate to address several key issues, present throughout the statements, including the Independent Expert Review, elections of the Prosecutor and six judges, external threats to the Court, the Court’s budget, and the Trust Fund for Victims. Almost all states referred to the efforts put forward by the ICC and its remarkable achievements, especially by continuing its work uninterrupted despite the challenges brought by COVID-19. They expressly defended the universality of the Rome Statute and noted States Parties should cooperate with the Court to maintain its strength as a unique international institution. 

The majority of states commended the work of the Independent Expert Review for the ICC and the Rome Statute System and encouraged the ICC to find means and mechanisms to adopt the recommendations promptly. Nigeria issued a critical view, noting that the report should not be based on “unverified rumors or inaccuracies,” yet applauding the efforts nonetheless and underlining the need to strengthen the ICC for the sake of international justice.

Most states took note of the external challenges that the ICC and the Rome Statute System face and expressed their disapproval. Several, including France and Switzerland, condemned the US economic sanctions imposed on the Court’s Chief Prosecutor and the head of the ICC’s jurisdiction division, calling for immediate revocation or withdrawal.

States universally highlighted the importance of the ongoing renewal process of the judiciary and the OTP. They called for each member to maintain the highest standards for the upcoming elections, carefully reflecting on motives, experience, and expertise when selecting the future judges and the Prosecutor. Many highlighted the need for fair and transparent elections and various states, such as Sierra Leone, Georgia, Costa Rica, El Salvador, and the United Kingdom, took the opportunity to present their respective nominees, inviting other states to endorse them during the election.

Sweden, Sierra Leone, Estonia, Italy, Trinidad & Tobago, Belgium, Finland, and the Czech Republic, among others, were vocal about the role of victims at all stages of the work of the Court and the Trust Fund for Victims. They individually reminded the ASP that victims are at the core of the ICC’s mandate and efforts. Thus, they called for all states, both members and non-members, to contribute to the TFV as it implements reparations in the Katanga, Ntaganda, and Al Mahdi cases.

Day 2 (15 December)

 Closed Meetings and Third Plenary Meeting
Day two saw a few closed meetings, with States Parties convening in the Working Group on the Budget and for informal consultations on the resolution on the Review of the Court and Rome Statute System. The brief third plenary meeting included updates from coordinators and facilitators of the working groups on draft resolutions as well as a report from the Credentials Committee.

OTP’s Launch of its 2020 PE report
The Office of the Prosecutor (OTP) hosted its annual side event to launch the OTP’s 2020 Preliminary Examination Activities report. The 2020 report includes information on the OTP’s activities in preliminary examinations over the past year. In 2020, the OTP concluded four preliminary examinations, in the situations in Palestine, Iraq/UK, Nigeria, and Ukraine. Read a report on the OTP’s launch event by PILPG Research Associate Raghavi Viswanath here.   

Day 3 (16 December)

Fourth Plenary Meeting
After the introduction of draft resolutions a day earlier and further informal consultations, the ASP considered the adoption of resolutions on its final day in The Hague. States Parties adopted six resolutions by consensus (to be published on the ASPs website soon):

• The resolution on the proposed program budget for 2021;

• The resolution on cooperation;

• The resolution on the remuneration of judges;

• The Omnibus Resolution (adopting similar language as the previous year);

• The resolution on procedures for adoption of decisions by the ASP during the 19th session due to COVID-19;

• The resolution on a possible second resumption of the 19th session of the ASP. This resolution seeks to address the (likely) possibility that the Assembly will not be able to conclude the election of a Prosecutor and six judges during the resumed session in NY. In this case, the resolution provides that the bureau considers practicalities of a second resumption in NY as soon as possible in the first months of 2021.

 Notably, the draft resolution on the Review of the Court and the Rome Statute System did not reach consensus in the Hague Working Group (HWG) leading up to and during the ASP. It seems negotiations on a mechanism to report on the implementation of the IER recommendations has reached a dead end. Mr. Jens-Otto Horslund, Vice President of the ASP, reported that States Parties will continue informal consultations at the resumed ASP session in NY.

Budget
The ASP considered and adopted the Court’s proposed programme budget for 2021. States approved a budget of €144,673.9 million, representing a 0.7% decrease compared to the 2020 approved budget (excluding the host state loan). The approved 2021 budget is in line with recommendations of the CBF, while the Court itself proposed a budget of €144,917.2 million. Belgium delivered a statement after the adoption of the resolution (on behalf of Argentina, Austria, Belgium, Costa Rica, Finland, Ireland, Liechtenstein, Luxembourg, Mongolia, Netherlands, Norway, Slovenia, South Africa, Sweden, and Switzerland), calling on States Parties to provide the Court with a budget that is in line with its needs to implement its mandate. Belgium acknowledged that this year’s budget negotiations had been easier than in previous years, as there was only a small difference between the Court’s budget and CBF’s budget proposal. However, Belgium noted great concern regarding the Court’s liquidity and the number of states in arrears.

CICC Statement
President O-Kon Gwon gave the floor to Elizabeth Evenson (Human Rights Watch) on behalf of the Coalition for the International Criminal Court (CICC) to provide a statement to the Assembly. CICC focused on five issues and urged for 1) proactive, fair, informed, and transparent elections; 2) adequate resources for the Court; 3) a timely assessment of IER recommendations that is inclusive of victims and civil society; 4) States Parties to be vigilant to protect the Court’s mandate from attacks and interference; 5) to support, defend, and protect human rights defenders.

Resumed 19th Session in New York
The resumed 19th session will continue this week (17-23 December) in New York, the weather allowing. With President O-Kon Gwon not able to attend, Vice President Mlynár (Slovakia) will preside over the resumed session.

On the agenda are the elections of six members of the CBF; the election of the ASP President, two Vice Presidents, and 18 members of the Bureau; as well as the election of six judges. The election of the Prosecutor appears to have been postponed to early 202 already. Interesting to follow will also be the continued informal consultations on the IER resolution, which did not reach consensus during the first three days of the ASP. 

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.