By Rachel Grand, Emma Bakkum, and dr. Marieke de Hoon
Between 2-7 December 2019, States Parties to the Rome Statute of the International Criminal Court (ICC) convene in The Hague for the 18th Session of the Assembly of States Parties (ASP): a key site for the politics of international criminal justice. In this post, we will provide an overview of recent events in preparation for this week’s developments. We will post daily summaries of the plenary and side event sessions here on our Lawyering Justice blog. Also follow us on twitter, via #PILPGatASP.
The ASP functions as the management oversight and legislative body of the ICC and is composed of representatives of the States Parties to the Rome Statute. The ASP convenes annually in The Hague or New York to discuss and decide on issues that are relevant to the work of the ICC. These issues include the adoption of amendments to the Rome Statute or Rules of Procedure and Evidence, the ICC’s annual budget, judicial and prosecutorial elections, and questions relating to non-cooperation. A number of subsidiary bodies of the ASP report back to the ASP during the annual session, such as the Board of Directors of the Trust Fund for Victims and the Committee on Budget and Finance. During the ASP, States Parties furthermore discuss contemporary issues or challenges such as universality, complementarity, and victims and affected communities. Last few years, the ASP has in particular focused on threats to the integrity and legitimacy of the Court.
To date, 122 states acceded to the Rome Statute. On 26 November 2019, Pacific Island State Kiribati deposited its instrument of accession to the Rome Statute. When its accession enters into force on 1 February 2020, Kiribati will be the 123rd State Party to the Rome Statute.
Earlier this year, Malaysia was thought to become the 123rd state party, when Malaysian Minister of Foreign Affairs, Dato’ Saifuddin Abdullah, signed the instrument of accession to the Rome Statute last March. However, on 29 April, Malaysia confirmed with the UN that it was backtracking on its accession.
This year, the ICC also lost a State Party when the Philippines formally withdrew from the Rome Statute in March, a year after it deposited its notice to the UN Treaty Office, becoming the second country to do so after Burundi withdrew in 2017. This move came in response to the preliminary examination into accusations that President Rodrigo Duterte and other Philippine officials committed extra-judicial killings during the “war on drugs” campaign.
The ICC looks back at another eventful year. Below a summary.
Cote d’Ivoire – Gbagbo & Blé Goudé
In October, the Prosecution appealed Trial Chamber I’s January decision to acquit Gbagbo and Blé Goudé of all charges of crimes against humanity. The Prosecutors’ appeal asks the Appeal Chamber to declare a mistrial. While judges consider the appeal, the Appeal Chamber ruled to keep Gbagbo in detention.
Uganda – Ongwen
In February, Ongwen’s Defense presented Trial Chamber IX with reasons why Ongwen should not be charged with 70 counts of war crimes and crimes against humanity. In July, the Appeals Chamber rejected Ongwen’s appeal on the Trial Chamber IX’s decision to decline the requested dismissal of 41 of the 70 counts of war crimes and crimes against humanity. In October, The Prosecutor announced that the trial of Ongwen is likely to conclude December of this year after the presentation of evidence.
Libya – Saif Al-Islam Gaddafi
In April, Pre-Trial Chamber I confirmed that the case against Saif-Al-Islam Gaddafi is admissible before the ICC, rejecting the admissibility challenge presented by Gaddafi’s Defense in June of last year. The admissibility challenge asserted that Gaddafi was convicted by the Tripoli Criminal Court for the same conduct as charged by the ICC and that he was provided with a general amnesty.
Afghanistan
In April, Pre-Trial Chamber II unanimously rejected the Prosecutor’s 2017 request to authorize an investigation into alleged crimes against humanity and war crimes committed in Afghanistan. The Chamber, despite finding that the jurisdiction and admissibility requirements were met, found that such an investigation “would not serve the interests of justice.” In September, the Prosecutor appealed the Pre-Trial Chamber’s decision to reject her request to open an investigation into the situation in Afghanistan. The Prosecutor’s appeal asserts that the Pre-Trial Chamber abused its use of discretion by not authorizing an investigation on the basis of an interests of justice assessment. In response to the appeal, on 9 October, the US announced it would remain to impose visa sanctions on ICC officials involved in investigations into US personnel. This announcement followed visa sanctions imposed on the Prosecutor, Fatou Bensouda, in March.
Bangladesh/Myanmar
In July, the Prosecutor requested the commencement of an investigation into the situation in Bangladesh/Myanmar. In September, Pre-Trial Chamber I decided that the Court may exercise jurisdiction over alleged deportations of Rohingya people from Myanmar to Bangladesh. This ruling established a precedent on ICC jurisdiction since Myanmar is not a party to the Rome Statute, but Bangladesh is. Pre-Trial Chamber II ruled in November that the Prosecutor can proceed with an investigation into the alleged crimes, within the ICC’s jurisdiction, committed against the Rohingya people from Myanmar.
Democratic Republic of Congo – Ntaganda and Lubanga
In July, Trial Chamber VI convicted Ntaganda of 18 counts of war crimes and crimes against humanity committed in the DRC between 2002-2003. In September, Ntaganda’s Defense appealed the guilty verdict and requested an acquittal of all counts citing procedural errors and violations of fair trial rights. In November, Trial Chamber VI sentenced Ntaganda to 30 years in prison. This is the highest sentence the ICC has ever handed down.
In July, the Appeals Chamber confirmed that Lubanga is liable for US$10 million worth of reparations to victims of his crimes.
Central African Republic – Yekatom and Ngaissona
In September, Pre-Trial Chamber II began the confirmation of charges hearing in the case against Yekatom and Ngaissona. Both are accused of committing war crimes and crimes against humanity in the CAR. Pre-Trial Chamber II concluded its hearings determining if there is sufficient evidence to establish substantial grounds for the charges against Yekatom and Nagaissona in October. The judges have 60 days to deliberate and present a written decision.
Mali – Al Hassan Ag Abdoul Aziz
In September, Pre-Trial Chamber I confirmed that charges against Al Hassan Ag Abdoul Aziz, for war crimes and crimes against humanity, were substantial enough to put him on trial. The Court has not yet set the trial date.
Syria
In March, evidence against senior Syrian officials who allegedly committed war crimes and crimes against humanity were filed with the ICC. However, there are various limitations remaining to the Court’s ability to prosecute individuals who have committed war crimes and crimes against humanity in Syria.
Election of a new Chief Prosecutor
Next year, the ASP will elect a new Chief Prosecutor, during the ASP’s 19th session taking place in New York. Ms. Fatou Bensouda took office on 15 June 2012 and her 9-year term will end on 15 June 2021. She cannot be re-elected.
Article 42 of the Rome Statute provides that the Prosecutor shall be a person “of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases.” The Prosecutorial election is facilitated by the Committee on the Election of the Prosecutor (CEP). The deadline for applications for the next Prosecutor was extended from 31 October to 25 November 2019. Reasons for extending the deadline include an under-representation of applicants from certain regions and legal systems, as well as gender representation.
In addition to the Chief Prosecutor, the ASP will also elect six new judges next year in New York. We can expect lobbying for each of these positions during this year’s ASP.
Keep tuned to this blog to follow updates from the ASP in the days to come.
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