ASP Plenary Meetings: Thirteenth Plenary Meeting of the 16th ASP – Activation of the Crime of Aggression

By Sophie Bones, PILPG Law Fellow & Victoria Ernst, PILPG Research Associate

The Assembly of States Parties met for its 13th plenary session on Thursday afternoon. The primary issue on the table was whether to activate the Court’s jurisdiction over the crime of aggression. The Austrian representative informed the plenary that after several rounds of open, informal consultations and multiple draft texts of the proposal, the working group had been unable to come to consensus. She returned the floor to the Vice Presidents (VPs) so they could present a final proposal drafted in response to the comments made by Member States throughout the ASP. 

The VP explained that this was the last attempt for consensus and that the draft was not open for negotiation; states needed to accept the draft as it was. The proposal was passed out to delegates. See document number ICC-ASP/16/L.10. The session was suspended for 15 minutes while the delegates reviewed the VPs’ proposal. After 30 minutes, the VPs announced that there was a mistake, made in good faith, in the proposal and that another draft would be circulated to delegates. See document number ICC-ASP/16/L.10*.

Once the session resumed, the VP asked for States Parties to make comments before the ASP acted on the proposal. The UK spoke first and expressed concern over operational paragraph 3, which dealt with the independence of judges. The representative said the placement of the paragraph created legal uncertainty and he requested more time for the ASP to engage with the text and reach consensus. Next, the French representative spoke and said that France would join consensus if one change was made: if operational paragraph 3 was moved to the preamble. Then Lichtenstein, Switzerland, and Japan commented that they would accept France’s proposal for the sake of consensus. However, each representative stressed that they were not thrilled with the proposal and that it represented a significant compromise and deviation from what they had hoped would be adopted. The VPs again suspended the session so delegates could consider France’s proposal.

When the session resumed, Palestine was the first state to speak. The representative was very transparent. He said he was puzzled by the proposal. He expressed that his delegation had many suggestions about the text that he would have proposed if he believed that was an option. However, he noted that moving a paragraph ensuring the independence of judges into the preamble was definitely not a change he thought was necessary, appropriate, or suggested in good faith. Brazil, Cyprus, Slovenia, Samoa, Costa Rica, Switzerland, and Mexico voiced agreement with Palestine’s comments. Switzerland said that, based on the other comments, it needed to change its position and could no longer support the French proposal. Conversely, the UK, Germany, and Denmark voiced support for France’s proposed change. Canada, South Africa, Australia, Japan, and Portugal voiced support for consensus above anything else and agreed that the risk of putting the proposal to a vote when the ASP was so close to consensus was too much of a gamble. France clarified that it made the suggestion because operational paragraph 3 fit better with the paragraphs in the preamble that referenced other parts of the Statute. Portugal also suggested that the operative word in operational paragraph 3 be changed from reaffirm to recall, or that operational paragraphs 3 and 4 be switched, so that the sequencing made more sense. The Samoan representative received applause from the entire assembly when he explained that going to a vote would make the court look weak. He said that leaving the room with anything other than consensus would undermine the ICC and make it impossible for him to continue advocating for other Asian-Pacific states to join the Rome Statute. He admitted he was not a lawyer and did not understand the real difference between operational and preamble paragraphs and believed that consensus was the most important thing. 

The VP retook the floor and determined that the French proposal did not have consensus, so the ASP would be voting on the original proposal instead. The UK then suggested that the session break for another 5 minutes so the delegates could consider Portugal’s suggestions. The VP allowed for three minutes. 15 minutes later, the VP asked if anyone wanted to make additional comments. No one requested time. The VP proposed adopting the original proposal, which passed. 

The resolution ICC-ASP/16/L.10* is only a page long, the most prominent part of it being the opt-in provision, removing any automatic jurisdiction the court might have had over the crime of aggression. There has been strong pressure from the UK and France in particular to avoid an opt-out provision with the reasoning that it would make a state lose face if they had to actively remove themselves from the court’s jurisdiction over aggression. This is clearly reflected in the final resolution at paragraph 2, which says that:

“the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.”

Thus, States Parties do not have to do anything extra to remove themselves from the jurisdiction of aggression if they have not ratified or accepted the amendments, they will be treated like non-state party. 

Takeaways:

– The crime has been activated, but jurisdiction is only for those who have ratified/accepted the Kampala Amendments.
– No state that spoke said they were genuinely happy with the text. Most states admitted that there were many issues they wished could have been resolved. But, at the end of the day (literally), consensus on activation was most important. Many states mentioned that not reaching consensus when they were this close would be a historical mistake.
– Many states – Lichtenstein, Cyprus, Switzerland – called on other states to ratify the Kampala amendments.
– Many states – Madagascar, Guatemala, Canada, Brazil, Bangladesh, Columbia, New Zealand, the UK – requested the record reflect that a state that had not ratified the amendments could be subjected to the Court’s jurisdiction.
– Some states – Venezuela and France – were upset that the translators had left already and gave their statements in their own languages.
– Palestine stressed that there cannot be separate interpretations of the crime of aggression and its application – there needs to be one united ASP.
– Samoa was happy with the ASP achieving consensus and said it will continue to encourage other Asian-Pacific states to join the Rome Statute.

Side Events: 16th Assembly of States Parties | Minding the Gap: Progress in Drafting a Convention on the Prevention and Punishment of Crimes Against Humanity

By Victoria Ernst, PILPG Research Associate

This afternoon’s panel discussion was moderated by Professor Sean Murphy, Special Rapporteur on Crimes Against Humanity and member of the International Law Commission (ILC). Panelists included: Professor Charles Jalloh, also a member of the ILC; Professor Claus Kress, Director of the Institute for International Peace and Security Law at the University of Cologne; Judge O-Gon Kwon, President of the ICC; Professor Leila Sadat, Director of the Whitney R. Harris Law Institute and Special Advisor on Crimes Against Humanity to the ICC Prosecutor; and Solomon Sacco, senior legal advisor for Amnesty International. 

Sean Murphy began the discussion with an overview of the process that led to the first draft of the convention. The ILC launched the project in 2014 and the first reading was completed and opened for comment this past summer. The draft convention consists of a preamble, 15 draft articles, and an annex. Comments will be accepted from states and NGOs through December 2018, and the Commission will submit a new report in early 2019, taking comments into account. The Commission plans to have a second and final completed draft by summer 2019, and shortly after to recommend adoption of the convention by the general assembly. The first draft of the convention can be found on the ILC website in the Commission’s 2017 report. Both members of the ILC on the panel, as well as the Amnesty International representative, called on audience members and the entire international community to submit comments. 

Mr. Murphy also reiterated the need for a convention on crimes against humanity. He stressed that such a convention is not redundant. The ICC focuses on investigating and prosecuting crimes in The Hague, but there is still a need for national level prosecution and increased international cooperation in areas such as extradition. He mentioned that 50% of UN states have no national statute on crimes against humanity, including a third of State Parties to the Rome Statute. The Rome Statute does not require national legislation but incentivizes doing so. Mr. Murphy further noted that even states that do have national legislation on crimes against humanity, do not have legislation in line with the Rome Statute. He cited the fact that many national statutes on crimes against humanity were adopted in the 50’s, 60’s, and 70’s, long before the Rome Statute. One major gap in national legislation across states is that states typically only have jurisdiction if the crime is committed in their own territory or by one of their nationals. Few states have jurisdiction to prosecute individuals present in their territory that do not meet those jurisdictional elements. Addressing this gap is one of the major goals of the convention. 

Next, the discussion was opened to the other panelists, starting with Professor Jalloh. Mr. Jalloh recognized the achievement of the Commission in completing the first draft in only three years. He also stressed the need for a convention on crimes against humanity to fill the gap in international and national prosecution for atrocity crimes. He noted the existence of conventions on genocide and war crimes and the lack of something similar to guide states in prosecuting crimes against humanity. In his opinion, the most significant developments in the convention related to extradition, mutual legal assistance, and the rights of victims. He recognized the difference in transnational prosecution of economic versus atrocity crimes. He hopes the provisions on mutual legal assistance will help address these gaps. He noted that three elements were not included in the first draft: a monetary mechanism, a prohibition on immunity for state officials, and a prohibition on amnesties. He admitted that he wanted all three included, but ultimately the Commission chose not to include them. The monetary mechanism was left out because the Commission perceived this as a political rather than legal issue. Immunities and amnesties were excluded because the Commission determined there was insufficient state practice to address them. 

Professor Kress spoke next. Mr. Kress highlighted the significance of the dispute resolution mechanism in the draft convention. He sees this as a positive development that will allow broader review of legal issues. He used the Bosnian cases as an example. He noted that the crime of genocide was both too limited and too confining to fully adjudicate the crimes at issue. Specifically, the intent requirement in the genocide article constrained the Court. Mr. Kress concluded with areas of improvement he sees for the second draft. He hopes the convention will use some of its elements to further prosecution of war crimes and genocide. He hopes to see guidance on transitional justice and more legal space to prosecute war crimes in non-international armed conflict. 

Judge Kwon spoke next. He reiterated Mr. Murphy’s opinion that the convention was not redundant. He believes the draft convention and the ICC are compatible and mutually beneficial. He sees the new convention as an opportunity for non-State Parties of the Rome Statute to fight against crimes against humanity. He also stressed concern about the lack of a prohibition on amnesties in the draft. 

Mr. Sacco with Amnesty International spoke next. Overall, he said Amnesty is supportive of the convention. He highlighted the provisions on superior orders and the non-applicability of statute of limitations as especially positive. However, he was very transparent on Amnesty’s belief that the convention was not nearly progressive enough. He called on progressive states and civil society to submit comments to push the next draft in a more progressive direction. He specifically hopes for more progressive development on victims’ and witnesses’ rights and a ban on military courts. He was also very concerned about the lack of a prohibition on amnesties and immunities. He mentioned that Amnesty was also concerned with the incorporation in the convention of the Rome Statute’s definitions for gender and sexuality. Amnesty strongly believes that customary international law and global society has moved past those definitions and that the definitions used in the convention should reflect that progression. 

The final panelist to speak was Professor Sadat. She reiterated the other panelists views that the convention was necessary in filling the gap in prosecution of atrocity crimes. She highlighted ethnic cleansing that might not meet the definition of genocide and sexual violence during peace time as particular areas of concern addressed by the convention. She said that the convention was a necessary step in ending impunity and the increased complementarity will create more international criminal law capacity at the national level. She noted that she hoped the preamble would include a Martin’s clause, as there will always be new ways to commit atrocity crimes and she believes it is important to make space for those developments in the convention. She concluded with recognizing that today was the 71st anniversary of the adoption of the Nuremberg principles and the development on this convention was an important step in continuing that legacy. 

Next the discussion was extended to the audience for questions. One audience member asked why incitement was not included in the draft. He was especially concerned about the lack of an explicit mentioning of incitement in the articles relating to prevention. Mr. Murphy replied that the Commission discussed inclusion of incitement but ultimately decided to mirror the Rome Statute as closely as possible. He also added that the drafters believed that incitement was covered in the draft, even if not done so explicitly, through criminalizing attempt and aiding and abetting. Professor Sadat also replied that incitement is supported by the Rome Statute, even though it is not included. She pointed to the fact that incitement is included under genocide and that the likely reason for its exclusion under the article on crimes against humanity is because there was no convention to look to. Mr. Sacco, speaking in his personal capacity, agreed with the audience member that incitement was not adequately covered by the draft convention. 

Another question posed to panel asked whether there were concerns that reducing crimes against humanity to a convention was in itself a step backwards. He was concerned about a dilution in the customary law that had developed around crimes against humanity. The panelists stressed that a dilution in law was not the intent of the convention and that adoption of the convention would further international law relating to the prosecution of crimes against humanity. 

Personal observations: 
It was obvious that all the panelists strongly supported the development of the convention. However, it was also obvious that most, if not all of them, hoped the convention would become more progressive. The ILC members, especially Mr. Murphy, who has been intimately involved in the drafting, were more cautious about the convention becoming too progressive. Both members alluded to push-back from other commission members on certain progressive aspects. The exclusion of amnesties and immunities from the draft also suggests that the Commission’s membership overall is concerned with the acceptance of less progressive states of those elements. Mr. Sacco was very transparent on Amnesty’s concerns over areas where the convention fell short. Civil society will be crucial in helping to move more conservative ILC members towards accepting progressive additions to the convention.

ASP Background Briefings | ICC Investigation of US in Afghanistan

The Prosecutor’s Report on the Preliminary Examination of Activities explained that in 2001, the US invaded Afghanistan in response to the terrorist attacks that Al Qaeda operatives conducted in Washington, D.C., and New York City. The US entered Afghanistan and attacked the Taliban-led Government because it accused the Taliban of harboring Al Qaeda, who claimed responsibility for the attacks. UNSC Resolution 1386 established the International Security Assistant Force (ISAF), which brought NATO forces into Afghanistan. While NATO and the US ousted the Taliban by December 2001, the conflict spread from southeast Afghanistan to the capital, Kabul.

In 2007, the Office of the Prosecutor made the preliminary examination of the Afghanistan situation public. The Prosecutor determined that the Afghanistan conflict is a non-international armed conflict between pro-Government forces comprised of the Afghan Government, supported by the US and ISAF forces, and the anti-Government forces, including the Taliban and the Haqqani Network. In 2016, the Prosecutor found that there was a reasonable basis that: 1. the anti-Government forces committed crimes against humanity and war crimes, 2. Afghanistan’s intelligence agency and National Police committed war crimes of torture and ill treatment, and 3. the US’s Central Intelligence Agency committed war crimes of torture and ill treatment.

On November 20, 2017, the Prosecutor requested the Pre-Trial Chamber’s authorization to begin an investigation into crimes against humanity and war crimes in Afghanistan. Based on the preliminary investigation, the Prosecutor believes that there is sufficient evidence that the fighting parties committed grave war crimes and crimes against humanity, and no national jurisdiction is undertaking an investigation.

The Prosecutor determined that the investigation’s scope includes war crimes and crimes against humanity since May 1, 2003 in Afghanistan, and war crimes that are closely linked to the Afghan armed conflict in the territory of other State Parties since July 1, 2002. In the Preliminary Investigation, the Prosecutor reported alleged war crimes when pro-Government forces captured and transferred Taliban and Al Qaeda members from Afghanistan to territories, such as Poland, Lithuania, and Romania. Additionally, the Prosecutor explained that she is considering complementarity and acknowledging national courts’ efforts to address crimes she may recommend to the Pre-Trial Chamber.

Although the US is not a State Party to the Rome Statute, the ICC may have jurisdiction due to Afghanistan, Poland, Lithuania, and Romania being State Parties. This is because the crimes alleged against the US, specifically torture and ill treatment, occurred in the territory of these states. The Prosecutor has not submitted her official request yet, but said she would file her request “in due course.”

Sources

Office of the Prosecutor, Report on Preliminary Examination Activities para. 195 (Nov. 14, 2016), available at https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf.

Office of the Prosecutor, The Prosecutor of the International Criminal Court, Fatou Bensouda, Requests Judicial Authorisation to Commence an Investigation into the Situation in the Islamic Republic of Afghanistan (Nov. 20, 2017), available at https://www.icc-cpi.int/Pages/item.aspx?name=171120-otp-stat-afgh.

Alex Whiting, An ICC Investigation of the U.S. in Afghanistan: What does it Mean?, Just Security (Nov. 3, 2017), available at https://www.justsecurity.org/46687/icc-investigation-u-s-afghanistan-mean/.

Paul Seils, Handbook on Complementarity: An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes 29, International Center of Transitional Justice (2016), available at https://www.ictj.org/sites/default/files/ICTJ_Handbook_ICC_Complementarity_2016.pdf.

ASP Background Briefings | Development of the Crime of Aggression at the ICC

Article 2(4) of the United Nations Charter sets out a prohibition on the use of force “against the territorial integrity or political independence” of other States. After World War II, the International Military Tribunal at Nuremberg expanded upon this concept, creating the “crime of aggression.” This was the first time individuals were held responsible for conduct which previously had only been enforced against States under the Charter.

Thirty State Parties to the Rome Statute have ratified the Kampala Amendments from 2010. This means that the crime of aggression should be activated in December 2017, provided that the State Parties to the Rome Statue decide by a 2/3 majority vote to activate the Court’s jurisdiction for the crime.

If the activation process succeeds, the ICC may investigate and prosecute crimes of aggression. The Court may exercise jurisdiction either through State referral (Article 15bis), or by Security Council referral (Article 15ter). Alternatively, the Prosecutor for the Court could start an investigation. Jurisdiction will apply only for acts of aggression after the amendments come into force, and the “aggressor” State Party must not have opted out of the Court’s jurisdiction for aggression.

Article 8bis of the Rome Statute defines the crime of aggression as “planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

Paragraph 2 designates an act of aggression as “the use of armed force by a state” against another State, which is not consistent with the UN Charter, most specifically Chapter 7. The acts designated as acts of aggression (even without a declaration of war) were codified from the UNGA Resolution 3314, and include:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation […] by the use of force of the territory of another State or part thereof;

(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

It is unclear at this time how many State Parties will potentially enact domestic legislation providing for the Crime of Aggression. The biggest concern for most states is complementarity, and enacting domestic legislation could allow State Parties to potentially avoid ICC prosecution due to their domestic measures and possible domestic investigations into the crime. Furthermore, in line with the principle of only being tried once for one’s conduct, “ne bis in idem” will apply to the Crime of Aggression.

Sources

UN Charter, Art. 2(4), available at http://www.un.org/en/sections/un-charter/chapter-i/index.html.

International Crimes Database, Crime of Aggression, available at http://www.internationalcrimesdatabase.org/Crimes/CrimeOfAggression.

The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, Conditions for Action by the ICC, available at https://crimeofaggression.info/role-of-the-icc/conditions-for-action-by-the-icc/.

Liechtenstein Institute on Self-Determination, Handbook: Ratification and Implementation of the Kampala Amendment to the Rome Statute of the ICC, available at https://crimeofaggression.info/documents/1/handbook.pdf.

UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), (Jul. 17 1998), available at https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf.

Side Events: 16th Assembly of States Parties | Victims of Hissène Habré: the struggle for reparations continues

By Kirsten Lavery, PILPG Program Manager

On December 7, 2017, the government of Switzerland, Human Rights Watch, and REDRESS convened an event entitled “Victims of Hissène Habré: the struggle for reparations continues” in the sidelines of the ASP Meetings of the ICC. In 2016, Hissène Habré, the former dictator of Chad, was convicted by the Extraordinary African Chambers (CAE) in Senegal for crimes against humanity, war crimes, and torture. The Habré trial has rightly been hailed as a victory for all those that fought for justice, particularly the victims that called for justice for over 20 years. The Habré trial was also a victory for the African continent as an example of complimentary jurisdiction and the demonstration of the ability of Africa to deliver justice for Africans on the continent. The trial included the active participation of victims, including many women who broke taboos in Chad to testify openly regarding their experiences as sex slaves during the Habré regime. In 2017, the CAE confirmed Habré’s verdict and ordered Habré to pay roughly $150 million in compensation to his victims. The CAE located and froze less than $1 million in assets and mandated that the African Union establish an AU Trust Fund to locate and seize additional assets. This Trust Fund has yet to be established and victims have not yet received reparations.

The event focused on considering whether equitable justice can be achieved without the effective implementation of reparations. Following introductory remarks and a screening of a video by Human Rights Watch that showed footage of the trial, a civil party representative in the proceedings spoke regarding his experience. He was a victim of prolonged torture by the regime and inquired why victims of such heinous crimes were required to fight for justice for so long.

He noted that while the Habré verdict was an important step, reparations are still critical. He explained that reparations address several dimensions of the harm suffered by the victims, but its psychological impact is the most important. In this sense, reparations offer the victims of torture the opportunity to restore their dignity. He stated that reparations are often a matter of life or death for victims of gross human rights violations, who many times have lost everything as a result of the crimes suffered. He further stressed that Chad and the African Union have the obligation to ensure reparations are provided for the victims, as required by the Court’s judgment. However, in recognition of the financial weakness of Chad, he stressed that external funding is needed. He stated that victims believe that foreign states that encouraged the dictatorship of Habré should be required to provide compensation.

In addition, a lawyer involved in the Habré trial and a reparations specialist gave their views on best practices to establish a Trust Fund to effectively implement reparations. These experts noted the concerning delay in establishing the Trust Fund by the AU. Currently, a draft statute is circulating that will be considered at the next AU Summit this January. The necessity of establishing the Trust Fund with urgency was stressed, so that victims can achieve full justice within their lifetimes. As there will still be a lack of available assets once the Trust Fund is established, technical expertise and financial tools are needed to locate and seize assets that can contribute to the Trust Fund. It was noted that given the lack of expertise in this area by human rights lawyers, corporate law firms that conduct investigations should consider providing pro bono assistance. In addition, support is needed to perform victim outreach and to ensure that the implementation of reparations is a victim-centered process that avoids re-traumatization. The speakers further highlighted options for structuring and funding reparations, concluding that a hybrid approach where donors support the fund to build its capacity to reparations together with the seizure of assets will likely be needed. In addition to continued efforts to identify assets of the former Habré regime that can be seized, the responsibility of Chad to provide funds was stressed. The speakers noted that relaying on donors to fund reparations can be problematic, as it blurs the lines between reparations and broader development assistance, thus undermining the purpose of reparations. Given this, the role of donors in building capacity instead of providing compensation was stressed. The speakers further suggested that the option of a staggered payment plan would help facilitate payments in the Trust Fund by the government of Chad.

The event concluded with further emphasize on the necessity of reparations to achieve equitable justice for the victims of the Habré regime. The establishment and implementation of the Trust Fund for Habré victims has the potential to acknowledge victim suffering and should remain a priority on the international agenda.