ASP20: PILPG Expert Roundtable: The International Criminal Court 20th Session of the Assembly of States Parties: Key Takeaways from the PILPG Team

20th  SESSION OF THE ASSEMBLY OF STATES PARTIES

17 December 2021

Name of the Event: PILPG Expert Roundtable: The International Criminal Court 20th Session of the Assembly of States Parties: Key Takeaways from the PILPG Team (hosted by the Public International Law & Policy Group (PILPG))

Report by: Guillermo Ferrer Hernáez, Junior Research Associate PILPG-NL

Highlights: 

  • The panelists recognized the importance of the work of the International Criminal Court  as well as the challenges the Court faces in fulfilling its mandate.

  • The panelists shared several highlights and key-takeaways from the 20th session of the Assembly of States Parties, including the continued implementation of recommendations from the Independent Expert Review Report, the Court’s workplace culture, the election of two deputy prosecutors, cooperation, and the approved budget for 2022. 

  • The panelists discussed several topics addressed during side events, such as gender parity, intersectionality, the possibility of inclusion of ecocide and cyberwarfare in the Rome Statute, universality, and election of ICC staff. 

  • Read all PILPG reports on the 20th ASP here

Speakers:

  • Professor Jennifer Trahan, Clinical Professor of Global Affairs at N.Y.U.;

  • Dr. Brianne McGonigle Leyh, Associate Professor with the Netherlands Institute of Human Rights, Executive Editor of the Netherlands Quarterly of Human Rights, and Senior Legal Advisor with PILPG;

  • Jackline Nasiwa, Founder and National Director at Centre for Inclusive Governance, Peace and Justice (CIGPJ), and Senior Peace Fellow with PILPG;

  • Emma Bakkum, Assistant Counsel PILPG, and Lecturer at VU University Amsterdam;

  • Owiso Owiso, Lecturer University of Groningen, Doctoral Researcher University of Luxembourg;

  • Professor Milena Sterio, Professor of Law at Cleveland State University’s Cleveland-Marshall College of Law, and Managing Director at PILPG

Summary of the Event:

PILPG has actively followed and reported on key decisions and discussions of the 20th session of the Assembly of States Parties (ASP), which concluded on Friday, December 10.  During this roundtable, PILPG team members shared key takeaways from the ASP and discussed current issues relevant to the International Criminal Court (ICC).  Opening the event, moderator Professor Milena Sterio described the role of the ASP as the ICC’s management oversight and legislative body composed of representatives of the States parties which have acceded to the Rome Statute.  This year’s ASP took place in the World Forum in The Hague from 6-11 December.  PILPG attended with a delegation at the World Forum, and followed all events online.  

As the first to share his observations of this year’s ASP, Owiso Owiso expressed his takeaways from the elections that took place, including the election of the new Deputy Prosecutors, members of the Advisory Committee on Nominations (ACN), and the Board of Directors for the Trust Fund for Victims (TFV).  Mr. Owiso spoke about the importance of allocating a sufficient budget to the ICC for 2022.   He recognized the challenges encountered by the ICC in fulfilling its mandate and expectations when working with limited resources.  Mr. Owiso also touched upon cooperation with the Court.

Professor Jennifer Trahan then reflected on the future of the ICC.  The Court’s increased workload, with five trials planned for 2022, has created a challenging situation within the Office of the Prosecutor (OTP).  Professor Trahan noted how the increased workload for the ICC does not align with the budget allocated to it by the states.  Reflecting on the several side events of the ASP, Professor Trahan highlighted the importance of the principle of complementarity, referring to the situations in Colombia and Afghanistan.  Professor Trahan, lastly, touched upon the possibility of including ecocide and cyber-attacks in the Rome Statute.

Next, Emma Bakkum, who attended several plenary meetings in-person at the World Forum, shared some outcomes and decisions reached during this year’s ASP.  She underlined that it was the first ASP with the new Prosecutor Karim Khan and the new ASP President Silvia Fernández de Gurmendi.  She then outlined the key decisions reached at the ASP that will influence the Court’s functioning for the year to come.  Ms. Bakkum particularly highlighted four developments.  First, she noted that the ASP approved a budget of approximately 154 million euro for 2022.  While an increase from this year (by 4.4%), it is lower than the Court asked for and the Committee on Budget and Finance recommended.  Second, she referred to the resolutions adopted concerning cooperation as well as the Independent Expert Review (IER), extending the mandate of the Review Mechanism.  Third, Ms. Bakkum mentioned the election of the two Deputy Prosecutors as an important development.  These elections mean a return to the initial model of the OTP with two deputy prosecutors, and go against the IER recommendation to continue with one Deputy Prosecutor.  Finally, she reflected on the OTP’s decision not to publish and launch the OTP’s Annual Preliminary Examination Activities Report, a noteworthy absence during this year’s ASP. 

Dr. Brianne McGonigle Leyh continued with sharing several cross-cutting issues of this year’s ASP in relation to the IER.  She noted the importance of the Court’s work environment and culture, a principal issue for the ICC and the ASP.  Prosecutor Khan has shown willingness to address the toxic environment and culture of bullying and fear reported by the IER.  This strategy will be part of the OTP’s agenda in ensuring gender equality and gender culture.  She noted that this is an opportunity for civil society actors to work with the OTP, with the Review Mechanism established during last year’s ASP to facilitate and assess the implementation of the IER’s recommendations. 

Mr. Owiso, in response to an inquiry about the Deputy Prosecutors election, underlined that measures need to be taken to ensure gender parity within the ICC.  He emphasized that the Court must reflect on the inclusion of women in all segments of society, including in leadership roles within the ICC, and that the ICC is a global institution and must reflect its local population.  He concluded that the election of the Deputy Prosecutors was a missed opportunity for more gender representation and floated the idea that Prosecutor Khan could have submitted different candidate lists that would be able to enhance gender equality further (for instance by including the same person on both lists).  He added that turnout for the Deputy Prosecutors' election was limited, with some two dozen States Parties failing to participate in the voting.  Moreover, he shared that the Court needs to address taking a new approach to deal with victims of gender violence, being reflective of victim communities.  A gender approach from a legal perspective needs to be put in place to assess gender-based and sexual violence.

Building on this, Dr. McGonigle Leyh noted that, while the ICC has made progress, there is still room for improvement.  Intersectionality perspectives need to be included when dealing with how the Court treats victims and reparations.

Jackline Nasiwa then turned to cooperation, a standing item for discussion at the ASP.  First, she remarked that voluntary agreements are entered into, and that the Court is focused on encouraging States Parties to further strengthen their cooperation with the ICC.  In particular, in important areas, such as victim protection.  States Parties were encouraged to establish a victim’s centered strategy, which focuses on the relocation of victims and cooperation with courts.  Second, Ms. Nasiwa reflected on the issues related to financial investigations - States Parties discussed the need to cooperate in the identification and freezing of assets for further protection of human rights.  Finally, she turned to South Sudan and underlined the importance of the efforts of the Court to encourage South Sudan’s government to establish the Hybrid Court for South Sudan.  

Following these contributions, Professor Trahan shared additional thoughts concerning several issues of importance to the Court, as addressed during side events.  For instance, she noted the importance of the universality of the Rome Statute.  Further, she touched upon the United Nations Security Council (UNSC) vetoes when it comes to referrals to the ICC, underlining that the perpetrators of core international crimes are often not apprehended because of the limitations of the jurisdiction of the ICC.  Under the Rome Statute, if a state has not ratified the Rome Statute, the ICC can have jurisdiction over the citation, if the UNSC refers it to the ICCl.  Nevertheless, the veto power of permanent UNSC members limits this possibility.  In addition, Professor Trahan highlighted issues with the nomination and appointment of judges.  She explained that this is not only an issue for the ICC but also the national courts, and underlined that action needs to be taken.  Professor Trahan took the case of  Switzerland as an example, which has implemented measures to select the best judicial candidates, mitigating risks of nepotism.

Several relevant questions were raised by the roundtable attendees.  For instance, one question touched upon the COVID-19 restrictions that have impacted the organization of the 20th Session of the ASP.  Participation at the World Forum was limited, and all side events were held online.  Ms. Bakkum shared some thoughts on the advantages and disadvantages of this hybrid model.  While it leads to more transparency with plenary meetings broadcasted on YouTube, she noted that the dynamics of discussions and side events were affected by this hybrid model.  Relevant stakeholders might not be able to follow online side events as much, as well as engage with the events.  However, Ms. Bakkum recognized the continued role of the Coalition for the International Criminal Court (CICC) in representing the interests of civil society and in assisting organizations and victim groups to have their voices heard by the ASP.  

A second question related to the performance of Prosecutor Khan in his first months.  In response to this, Mr. Owiso expressed that it might be too early to assess, but that Prosecutor Khan has made favorable prosecutorial decisions.  However, Mr. Owiso regretted that the Court decided not to prosecute several individuals based on the argument of budgetary constraints.  He quoted an earlier statement of Khan, in which he acknowledges the finite resources of the Court, noting that Khan has always been aware of the resource related challenges the Court faces.  On the same point, Professor Trahan added that this situation is frustrating, but that domestic investigations might form an opportunity to hold those individuals accountable. 

This event was organized as part of PILPG’s Thought Leadership Initiative. The Initiative focuses on prominent international law and international affairs topics and organizes monthly expert roundtables to share expertise and reflections from our work on peace negotiations, post-conflict constitution drafting, and war crimes prosecution.