Informal Consultations on the Omnibus Resolution 3

Overview by Abby Roberts, Research Associate PILPG NL

Highlights: 

• Clauses 104, 119, and 91ter were agreed upon which was a testament to the cooperation of this body.

• The divide between Latin America and Eastern Europe was even more prominent in this session and this came to a head with no consensus reached on the clause on equitable geographical distribution within the Bureau. 

• The Secretariat is looking into venue options for or rescheduling of the next ASP in 2019.

On the sixth day of the ASP, the informal consultations on the omnibus resolution continued for a final time. The first clause discussed was the new operative clause placed after PP29 and it was noted that the body had come to a consensus on the phrasing and structure of this clause. 

Next under discussion was operative clause 91bis, relating to Brazils proposal for a clause on equitable geographical representation in the Bureau. Brazil spoke first on this topic and opened by noting that the Eastern European group had concerns with the timing and degree of institutionalization of Brazil’s original proposal. Brazil, in its search for consensus, decided on the wording in the draft resolution. Brazil closed its speech by expressing its belief that no country is in essence opposed to equal representation, and therefore Brazil expected agreement on this clause. Japan, Uganda, and numerous Latin American states expressed their willingness to support the proposal by Brazil. Despite Brazil’s hopes, the Eastern European group expressed their disagreement with the clause. Slovakia noted it did not address their main concerns and will not really alleviate any prominent issues, and suggested that more time is necessary to discuss the clause. Slovenia also suggested more discussion and believed that there was no need to raise this particular point in the omnibus resolution as it can be raised by members of the bureau at any point. Bulgaria and Croatia were not in support of the proposal because it had a preemptive element. The Netherlands expressed its support for the views of the Eastern European group and added that it does not see to what extent a requirement for a written report would add anything as it already can be requested. This clause was left to be discussed at a later point. 

The next clause discussed was 91ter. Germany withdrew its suggested edit which shortened the length of the ASP. Belgium had concerns with regards to this clause but was willing to go along with it in the spirit of consensus. The Czech Republic requested that the words “and frequency” be removed. A consensus was reached on this clause with the Czech Republic’s suggested edit. 

Operative clause 104 was agreed upon. Operative clause 119 was agreed upon, pending the passage of the amendment to rule 26 of the Rules of Procedure and Evidence.

Mandate 19(b) regarding the timing of the next ASP was then put up for discussion. Finland asked if there was any possibility to change the date of it or choose a different venue to facilitate a change in date. The Secretariat responded that they are looking into other venue options or rescheduling, but this will take more time. The Coordinator suggested a clause that requests the Secretariat to present options for scheduling the next session of the assembly and requests the bureau decide on the date of the 18th session. This version of the clause was agreed upon. The meeting was then convened for 45 minutes for discussion, which left 10 minutes in the session to resolve all remaining issues.  

Brazil was the first to speak in this last part of the session and suggested the following as the new proposed text of clause 91bis: “Recalling article 112 3(b) of the Rome Statute of the ICC, request the bureau to promote adequate discussions with a view to addressing the issue of equitable geographic representation within its structure”. Slovenia noted that this discussion was supposed to be an exercise in consensus, but they were only faced with the proposal 10 minutes ago and that this is not acceptable to them. They suggested just recalling articles 112 3(a) and (b) and encouraging the bureau to remain seized on this matter. Slovakia was in agreement with Slovenia regarding Brazil’s proposal as they thought it gave a sense of urgency that they do not believe exists and they were uncertain as to what “promoting adequate discussion” means. Macedonia agreed with Slovakia and Slovenia and noted that it seems they have a different starting point when it comes to this topic, as Eastern Europe feels there is adequate representation within the Bureau. Brazil responded by saying that they think the representation needs to be addressed and discussed, as the membership in the ICC went up and they need to address the new demographic or at least have a discussion about the new demographic so the bureau is representative. To try and find a middle ground, the Republic of Korea suggested the phrasing “calls upon the bureau to consider where possible the future composition of the bureau in light of article 112 of the Rome Statute”. Serbia and the Czech Republic were hesitant regarding this proposal and Brazil wanted more time to think about the phrasing of Korea’s proposal. With two minutes left, Austria gave a speech urging flexibility in phrasing and Brazil finally stated that if language that is not agreeable cannot be even considered then they will never have new language in the resolution.  

This session ended without consensus to 91bis. 

Informal Consultations on the Omnibus Resolution 2

Overview by Phedra Neel, Research Associate PILPG NL

Highlights:

• States Parties remained to disagree on Brazil’s proposed text on equitable geographical representation within the Bureau. 

• Discussion on the duration and date of the next ASP continued. 

• The session ran longer in order to attain a request for an amendment on a paragraph that was already agreed upon in previous sessions.

The consultations on the Omnibus Resolution reconvened on the fifth day of the ASP to finalize the discussions on the omnibus resolution by building onto revisions proposed during previous sessions. 

The first paragraph addressed was the new operational paragraph, which faced issues with its wording. Austria, Chile, Argentina and Greece supported the new operative clause. Korea on the other hand showed concerned with the formulation of this clause and additionally with the structure of the draft resolution, requesting a separate heading. Austria suggested that this can be solved by leaving enough space between this clause and the operative clauses. This clause was eventually agreed upon.

Paragraphs 9bis to 9quater were next. There was an alternative pending for these paragraphs existing of OP139 as proposed by Liechtenstein. As a reaction to previous concerns that OP9bis, ter and quarter were repetitive, France proposed an alternative OP that contained all three. However, many states (such as Kenya, Chile, Greece, Argentina, Austria, Sweden) felt like this was still too lengthy and unnecessary and thus preferred to support the proposal from Liechtenstein as this proposal referred to rule 42 of the Rules of Procedures and Evidence rather than reiterating selected sentences from it. The facilitator received a proposed consensus that will be discussed during the next session.

Following was the adaption of OP12bis and ter as there was no objection to the current form of the revised OP’s, including OP12 quarter to nonies. The substance of these articles was already agreed upon, but the level of appreciation was debated. Ecuador announced that they worked together with Mexico and came to the consensus to use the word ‘welcome’ for these specific OPs and all the other OPs in this section. This was approved by the entire session and thus agreed ad ref. OP18 and 20 were also agreed ad ref without any debate.

Next was OP71bis and 71ter, with regard to which Uganda suggested that the language was not specific enough and questioned why the text no longer mentioned that the oversight of the Bureau will take place on an annual or continuously basis. However, Uganda did not oppose the adoption of this OP and it was thus adopted ad ref.

The most debated OP was OP91bis on the equitable geographic representation within the Bureau as proposed by Brazil. Brazil explained that the number of States Parties have increased significantly over the years but that this is not reflected in the representation of the Bureau and that the time is ripe to address this issue. Brazil was supported by the Latin American states who spoke during this session (the facilitator had to close the floor as too many states wanted to express their opinion.) Many of the European countries such as Slovakia, Bulgaria, Hungary, Czech Republic, Poland, Serbia stated that the time was not ripe, that the Court was facing way more pressing issues such as dealing with universality, legitimacy issue, and the elections of a new prosecutor. Austria called for all states to come together in unity rather than to be divided on this issue and said that in principle they support Brazil’s proposal but that they are flexible in time. Lastly, Brazil clarified that including this OP only serves to open debate and asked if the timing is not right now, then when is it? Even after the informal consultations during the break, a consensus was not reached.

Subsequently, OP91ter was discussed again in relation to OP91ter alt on the duration of the ASP. Belgium expressed its concerns that reducing the ASP to five working days would negatively affect the possibility for the ASP to take decisions which would result in very general consensus seeking processes and thus hinder progressive development. There might also not be enough time to engage with civil societies, observer states, and with the court itself. The other states expressed different concerns: Argentina and Chile expressed concern with the reference to ‘subsidiary bodies’; the Netherlands and Portugal preferred the French alternative to give the Bureau the chance to make a decision on the matter and to not prejudge it already. Slovenia combined all the grievances saying that the other events surrounding the ASP are important with regards to its efficiency, that there is no need to already include ‘subsidiary organs’ and that the outcome needs not to be prejudged. To conclude, there was a lot of support for the amended French proposal. After the break, Brazil announced that together with the French and German delegation an agreement was reached that will be send to the facilitator. 

The next OP on the list was OP 123quater. However, the delegation of the Republic of Korea wanted to reopen the debate on OP104 and proposed a few minor changes in wording. Although this OP104 was already agreed upon in earlier sessions, the issues was addressed. After giving all states the chance to read the amendments, it was agreed, by voice of Austria, that the first two of the three proposed amendments would be accepted. 

Following, OP123quater in relation to the proposal of a mandate under §15 (15b) was discussed. Chile welcomed the great improvement in language but still suggested a few changes. Kenya explained that changes in language were needed. For instance, they suggested to have the words ‘any impact’ removed as they stated that an investigation always has an impact. The UK informed that progress was made during the break and that a final proposal will be communicated in due time.

To conclude, Mandate section number 7 was agreed ad ref without any debate. Mandate section number 19b (on the dates of the next ASP) is still open as the World Forum is already booked in December and the proposed dates in November overlap with a UN meeting. Austria asked the Secretariat to book the World Forum earlier on next times. 

Side Event – “Complementarity and Cooperation Revisited: What role for the ICC in supporting national and hybrid investigations and prosecutions?”

(co-hosted by Luxembourg, the Republic of Korea and Open Society Justice Initiative (OSJI))

Overview by Jill Baehring, Affiliated Expert PILPG NL

Highlights:

• Pascal Turlan, OTP, said he was convinced that the ICC should not be the only actor enforcing international justice, and that the ICC always appreciated being in contact with states requesting  assistance and support for their local prosecutors.

• Christian Ritscher, Special Prosecutor in the War Crimes Unit of the Prosecutor General in Germany, shared how in the case of prosecuting members of the Democratic Forces for the Liberation of Rwanda (FDLR), the German Prosecutors decided together with the OTP to split up the case to avoid double jeopardy.

After opening remarks from the Ambassador of Luxembourg, Mariana Pena from the Open Society Justice Initiative opened the panel by asking the participants to share their “lessons learned” and best practices in interacting with entities of overlapping jurisdiction. 

Responding to this, Christian Ritscher from the War Crimes Unit of the Prosecutor General in Germany shared the circumstances under which it was possible to simultaneously prosecute several individuals involved in the same crimes in front of different institutions of justice. The FDLR’s president and vice president were living in Germany, though they were not personally involved in the genocide committed because of their presence in Germany. At the same time, the Secretary-General of the FDLR lived in France. In an effort of international cooperation, the Prosecutors of Germany and France asked the OTP to split up the case between their entities. Additionally, they sought mutual legal assistance with Rwanda and the Democratic Republic of Congo, which saved each individual party many capacities that benefitted the prosecution as a whole. As a result, Ritscher said, not one witness was interviewed twice and files as well as other information were shared with the ICC’s OTP. Although this meant a delay of the prosecution due to bureaucratic thresholds, Germany saw this cooperation as a great success to be repeated in similar cases such as Syria and investigations in other African countries. 

Sharon Nakandha, Director of the Victim’s Support Initiative in Uganda, congratulated Christian Ritscher for this success. She pointed out that the Domenico Case opened up the possibility of a mutually beneficial relationship with the ICC, where such sharing of resources and capacity may be feasible. However, complementarity was not the only means of capacity building. She insisted that a joint prosecution strategy, sharing of evidence, and other deliberate means were equally important. Each time the ICC cooperated with local prosecution, it had the duty to disseminate their legacy with the lessons learned in the respective country.

This view was shared by Pascal Turlan, OTP. He stated that the ICC should only be one of many actors in the realm of international justice, a standpoint even engraved in the Rome Statute. He emphasized that the ICC encouraged states to seek assistance, as successfully done in Colombia and Guinea. The same was true for states outside the ICC’s territorial jurisdiction over a crime. To strengthen universal jurisdiction, the ICC was actively reaching out to authorities about potential perpetrators on their territory, helping states with all means available to the ICC. He also reiterated the very positive experience of the ICC in working with Germany and France in the case of the FDLR. However, he pointed out that such cooperation was only possible with assurances for witness protection and confidentiality, as well as an assurance that no death penalty would be applied. 

When asked about ad-hoc completion strategies, Fidelma Donlon, Registrar to the Kosovo Specialist Chambers, pointed out that the ICTY and ICTR have developed sophisticated completion strategies in the past that rooted in prosecution of the high-rank leaders in front of the tribunals, and prosecution of mid to low-ranking leaders in front of national courts. The most important component was that there was the possibility of transferring such leaders between the jurisdictions according to Rule 11bis of the ICTY Statute - again provided there were certain assurances in place. She shared that in her experience, creating a ground for such cooperation could take decades, since not every piece of evidence collected in an international trial was admissible due to national jurisdiction and human rights thresholds, and vice versa.  

Pascal Turlan added to this that the ICC was actively trying to establish a mutually beneficial relationship with states, and that discussions were always held with national authorities before formally submitting a cooperation request. To this, Sharon Nakandha added that it was her aspiration to establish a system of co-existence with international courts allowing exchange of information and resource sharing. The Malabo protocol envisioning cooperation with international courts in general, not specifically the ICC, was a good first step. 

Side Event – "Defining sexual violence, what makes sexual violence ‘sexual’?” (co-hosted by Australia, the United Kingdom and Women’s Initiatives for Gender Justice))

Overview by Annelou Aartsen, Research Associate PILPG NL

Highlights:

• Call it what it is campaign’ an initiative set up by civil society to create a working definition for sexual violence. 

• Jihyun Park, a survivor activist from North Korea who shared her personal experiences and thoughts on sexual violence committed in North Korea.  

This side event was co-hosted by Australia, the United Kingdom and Women’s Initiatives for Gender Justice. The Panel participating in this side event consisted of Jihyun Park (North Korean women’s Rights Activist), Patricia Sellers (Special Advisor on Gender to the ICC Prosecutor) and Dr. Rosemary Grey (teacher at the University of Sydney).  

The Australian Ambassador to the Netherlands, Mr. Matthew Neuhaus, began the event by recalling a personal experience during one of his visits to the North-East of the DRC. In a refugee camp in the far North of the DRC, he asked one of the local women leaders what her main problem was, and she replied that the families living in this area were not able to go down to the river to get water because they would get raped. With this story the Australian Ambassador to the Netherlands wanted to demonstrate that the main issue is that the people who are supposed to be the protectors of crimes of sexual violence, were involved in the commitment of these crimes and nothing has been done about this. According to the Australian Ambassador this is the main challenge we face when dealing with impunity, specifically when dealing with crimes of sexual violence in conflict situations. 

Secondly, the floor was given to the British Ambassador to the Netherlands, Mr. Peter Wilson, who articulated that the victims of sexual violence lie at the heart of the UK’s approach. It is about understanding the experience of the individual. This side event should help to broaden our understanding of what this concept of sexual violence is and should center around the ICC, because there is a lot the ICC can do about this. Moreover, Mr. Wilson highlighted that sexual violence is also about the violence that is done to men. He highlighted that everyone should understand the context in which they are operating, something which is incredibly important in order to ensure that the right procedures are put in place to hold people accountable. 

Siobhan Hobbs, the moderator of the panel and program director at the Women’s Initiatives for Gender Justice, moved on by formerly launching the 2018 gender report card on the ICC.  She said that the Gender report card is a tribute to those who have worked to enable the Rome Statute and the legal framework of the ICC to be what it is today in terms of gender provisions and gender equality. While she acknowledges that the Rome Statute is not perfect, and there is a whole there can be done to support its implementations, Hobbs said the Rome Statute is the most progressive framework that we have today. Next, she moved on by highlighting the goal of this side event’s discussion, namely, to discuss ‘what makes violence sexual’. While sexual violence is often understood as rape, or as the crimes that are listed in the Rome Statute, people’s understanding of what sexual violence is should be expanded. 

In order to get the discussion on a defining sexual violence going, Patricia Sellers, the Special Advisor on Gender to the ICC Prosecutor, started off by discussing how the international criminal law system came to conceptualize sexual violence. The Special Advisor on Gender discussed diverse instances in history where sexual violence appeared as an illegality within international humanitarian law. Most of these early instances of illegal sexual violence, occurring already in 1500s and 1700s, were referred to in terms of molestation of persons who are not combatants. For example, the treaties the United States entered into with Prussia, the Netherlands and France in the 1700s, all included phrases such as ‘we will be civilized, we will have respect and shall not molest women’. Through the diverse examples given by Patricia Sellers she illustrated how sexual violence against the non-combatant enemy was illegal. Next, she moves on by highlighting diverse examples of conventions and jurisprudence which prohibited the perpetration of sexual violence against the combatant enemy. Amongst others she referred to the Tokyo judgement which talks about the different forms of rape that were committed against army nurses. Through diverse examples given she demonstrates that there already existed a broad base for the prohibition of sexual violence. Additionally, the Special Advisor on Gender refers to the Additional Protocols 1 and 2, which both reiterate the prohibition of sexual violence independent of your status in war. Through these examples Patricia Sellers illustrated that sexual violence is clearly outlawed under international humanitarian law. However, while there exists a wide prohibition of sexual violence, she found a gap in the law as no such prohibition is titled ‘sexual violence’. 

Next speaker at this side event was Dr. Rosemary Grey of the University of Sydney. She commented that the ICC is the first criminal court that expressly recognizes the crime of sexual violence which provides the ICC with great potential. Amongst others, it allows the court to respond to different forms of sexual violence that are experienced by people of any gender anywhere in the world where the ICC has jurisdiction. She moves on by explaining that the crime of sexual violence is entwined in the ICC as a crime against humanity and a war crime. The current definition and the elements of the crimes that need to be demonstrated provide us with understanding of what force means. However, it does not clarify what makes an act sexual in nature. Similarly, within ICC case law there is no clear and consistent answer to the question ‘what makes violence sexual?’. As jurisprudence of the ICC demonstrates, crimes committed, which were considered as crimes of sexual violence by the victims, were not labeled as crimes of sexual violence by the ICC. The ICC would refer to such type of acts as inhuman acts, which are not of a sexual nature. 

In response to those earlier cases of the ICC, which failed to label certain acts as acts of sexual violence, the Women’s Initiatives for Gender Justice civil society organization has started a campaign ‘Call it what it is’ which includes a survey, to create a definition of sexual violence. This definition of sexual violence does not seek to bind or restrict the ICC in any way it rather seeks to support the ICC in understanding how the concept of sexual violence is understood across different cultures and different timeframes. The aim is to create a vocabulary and illustrative examples so that the ICC and affected communities can speak in a common language. Thereby, supporting the work of the prosecutor who tries to move forward the crime of sexual violence. It is a way of offering the ICC a definition that is inclusive, culturally sensitive and forward looking. 

The third panelist to speak was Jihyun Park, a North Korean activist, who with her story illustrated that there is a lot of sexual violence committed which has not come to the Court’s attention yet. Jihyun Park started of by highlighting that the sexual violence that takes place in North Korea is not unique to North Korea, it takes place in every society. As mentioned by the human rights activist, a survivor of sexual violence herself, sexual violence is often committed by those in powerful positions who misuse their positions. In addition, she mentions that sexual violence takes place in diverse institutions such as prisons and schools. One of the explanations pointed out by Jihyun Park is the status of women which is not considered equal to men. Amongst others, Jihyun Park refers to exploitation, human trafficking and forced abortions as acts of sexual violence taking place in North Korea. Trafficking North Korean girls into pornography is for instance a growing business in China. Additionally, she points out that victims of trafficking are at high risk to sexual and domestic violence and often do not have any access to health or education, which makes them increasingly vulnerable. Another issue referred to by the human activist is the forced abortions that are conducted to prevent ethnical mixing. Moreover, forced abortions are seen as an additional punishment of Korean women who have left North Korea. Furthermore, she highlights the climate of impunity that exists in the political prison camps in North Korea in which guards abuse their positions and are the main perpetrators of sexual violence. In her concluding remarks, Jihyun Park states that “peace cannot be brought to a country that is ruled by the men who hate women”. Additionally, she poses the question whether the leader of North Korea, Kim Jong-Un, is not a candidate for the ICC? She argues that those who are silent but aware about human rights violations happing inside North Korea should be held responsible. Additionally, she poses that North Koreans are entitled to be protected under the universality principle. 

After Jihyun Park’s story the floor was given to H.E. Sabine Nölke, the Canadian Ambassador to the Netherlands. She articulated that sexual violence can constitute a war crime in those states bound by the Rome Statute. While welcoming all important developments within the ICC and its fight against sexual violence, she noted that we have not seem enough progress. The international community has sometimes failed to address the acts of sexual violence. Therefore, the ‘call it what it is campaign’ has been developed to create a working definition for sexual violence. 

One of the questions posed within the audience was related to the situation of Colombia which is in the process of transnational justice. The question raised was ‘how activist can make the crime of sexual violence more visible to the public?’ The special advisor on gender to the ICC Prosecutor replied to this answer by stating that Colombia has a lot of prosecutors who are dedicated to fight sexual violence. However, the Colombian system is a system where the prosecutor is politically appointed and turned over quite often. While recognizing that it is a question of training and having access to terrain free investigations, it is also a political question. It is about the political will to make sexual violence a priority to execute. 

Another question that was posed by the audience was related to the definition of sexual violence and ‘how far and wide’ one could go with the definition of sexual violence?  Professor Grey responded to this question by highlighting that there is a difference about interpreting law that already exist and creating new law. Another thing she mentions in relation to this question is to think about what it means to have an act of sexual violence to be prosecutable in the ICC. That act would still have to make the Rome Statute elements of crime. 

A third question formulated by the audience was also related to defining sexual violence, and the gravity test, in particular how this would have to consider different cultural context. Since different cultures can have different interpretations of the one definition. Professor Grey answered this by stating that she thinks that it is better to have a definition which can vary from culture to culture, than to have a definition which is narrower and descriptive but is in fact only the perspective of one culture. This would allow the ICC to be more responsive to the various context in which it operates. In relation to the gravity threshold, Professor Grey mentions that removing the gravity threshold would require states parties to do so. Whereas, interpreting an act as an act of sexual nature could be done through a campaign of the civil society, which can subsequently be offered to the Court.

Side Event – “Challenges and Prospects on the ICC's Horizon: Afghanistan, Myanmar and More” (co- hosted by the American Bar Association and the International Federation for Human Rights (FIDH))

Overview by Emma Bakkum, Senior Research Associate PILPG NL 

Highlights: 

• The panelists agreed on the importance of the ICC’s involvement in both the situation in Afghanistan and Myanmar/Bangladesh. 

• Grave crimes committed in Myanmar, PILPG’s report Documenting Atrocity Crimes Committed Against the Rohingya in Myanmar referred to. 

This side event, organized by the American Bar Association (ABA) and the International Federation for Human Rights (FIDH), focused on the challenges and prospects on the ICC’s horizon, specifically focusing on the preliminary examinations into the situations in Afghanistan and Myanmar/Bangladesh. Christopher Hale moderated the discussion by a panel of distinguished speakers. 

Ambassador Stephen J. Rapp started by reflecting on the U.S. perspective and policy towards the ICC. While the threatsmade by U.S. national security advisor John Bolton against the ICC worry many, ambassador Rapp emphasized the support the U.S. has historically showed towards the ICC, referring to its cooperation in the transfer of Bosco Ntaganda and Dominic Ongwen to the ICC. Ambassador Rapp stated that the extreme view of Bolton has in history been rejected before and highlighted that the U.S. has always been a leader in establishing international institutions. Therefore, Ambassador Rapp is confident that Bolton’s stance towards international criminal justice will be rejected in the U.S. He added that focus should also be on national efforts and referred to the conviction of Sergeant Robert Bales for war crimes committed in Afghanistan in 2013. 

Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights, provided background information into the ongoing preliminary examination in Afghanistan. The Prosecutor of the ICC, Bensouda, requested authorization from the Pre-Trial Chamber III to start an investigation into alleged war crimes and crimes against humanity in relation to the armed conflict in Afghanistan since 1 May 2003 as well as regarding other crimes that have a nexus to the armed conflict in Afghanistan and are sufficient linked to the situation and were committed on the territory on other state parties (e.g. Romania, Lithuania, Poland) to the ICC since 1 July 2002. This request was made on 20 November 2017, making it the longest pending decision of its kind before the ICC. While the investigation into Afghanistan consists of three parts, crimes against humanity and war crimes by the Taliban and affiliated networks, war crimes committed by Afghan forces, and war crimes committed by the U.S. military and CIA, Gallagher focused on the last. 

She stated that complementarity and admissibility are not an issue of concern for the Pre-Trial Chamber since no senior U.S. official has ever been prosecuted and no efforts have been made to do so.  On top of that, there is evidence of the U.S. government trying to close down any investigation in foreign national courts. According to Gallagher, the case of Afghanistan is right to be at the ICC. 

She continued by talking about her work as representative of two of the victims of the crimes committed in Afghanistan under the scope of the preliminary investigation. She emphasized the difficulty with providing victim statements within the timeline of Nov 20th-21stJan 2017, when bombings were going on in Afghanistan. To have no response more than a year later is a great disappointment to her and the victims. 

Later during the panel discussion, Gallagher also asserted that many practical issues must be worked out if an investigation is opened. One issue is contact with victims that are held in Guantanamo Bay. Less practical, but not less important, the ramifications of the threats from John Bolthon against the ICC must be understood: what did he mean when he threatened companies? Generally, Gallagher concluded, it is going to be an extremely difficult case, both for lawyers or prosecutors, and the global support of States Parties is needed to insulate the Court. Ambassador Rapp added, in similar sentiment as his previous statement, that accountability in the U.S. will depend on the U.S. system itself. Stating his own position, he concluded that the appropriate thing for any administration is to appoint a special counsel for the specific case.

After discussing Afghanistan, Kate Vigneswaran, Senior legal advisor at the International Commission of Jurists, continued with the situation in Myanmar. She elaborated in detail on the findings of the fact-finding mission (FFM) for Myanmar, established in early 2016. The FFM concluded that crimes against humanity and war crimes were committed in Myanmar. An investigation into genocide was warranted. Recommendations (in September 2018) included a UN Security Council (UNSC) referral to the ICC and, until the UNSC acts, the creation of an independent evidence gathering mechanism, similar to the mechanism for Syria. In response, a resolution was issued by the Human Rights Council to establish such a mechanism, for which the Terms of Reference are expected in two weeks. 

Vigneswaran expressed hope that the Pre-Trial Chamber ruling of 6 September 2018 on ICC jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh will result in the filing of an application soon. The Pre-Trial Chamber decided that the ICC has jurisdiction in cases where one element of the crime or part of such a crime was committed on the territory of a State Party, in this case Bangladesh. In addition to deportation, this rational could be applied to other crimes, such as persecution and torture. The Pre-Trial Chamber decision, however, does not apply to the many other crimes committed solely in Myanmar. 

Akila Radhakrishnan built on this when asking the audience to think about what justice means for Myanmar. Myanmar has faced a range of crimes for a very long time. The constitution of Myanmar enshrines impunity for the military. This framework must be taken into account when considering what the limited jurisdiction of the ICC can do, Radhakrishnan underlined. There is no real identified place for these cases to be transferred to, she continued, unlike with the III Mechanism for Syria that concerns viable jurisdiction cases. Therefore, she calls upon a full UNSC referral. 

While Radhakrishnan mentioned some of the challenges the investigation into Myanmar is facing (such as access in to country, gathering evidence, cooperation), she called the steps of the ICC important for pressuring the government, to “see if we create a crack in impunity”. Nevertheless, she explained that the pursuit of justice for Myanmar has to be broader and look at other venues for justice.                              

Discussing U.S. engagement with regard to the situation in Myanmar, Radhakrishnan indicated that the U.S. government has continued to use human rights language and “said the right things”, but that no concrete action to enable accountability has been seen yet, also mentioning the recent publication of PILPG’s report Documenting Atrocity Crimes Committed Against the Rohingya.

Micheal Greco, still with a focus on the U.S., therefore looked at the role of civil society and the legal community within current geopolitics. The American Bar Association (ABA), as well as other civil organizations, are vital for holding governments (including the U.S. government) accountable and for advocacy and educational purposes. 

Continuing with the situation in Myanmar, moderator Christopher Hale asked whether the jurisdiction of the ICC over the deportation of the Rohingya from Myanmar to Bangladesh is too limited. Kate Vigneswaran considers the decision on jurisdiction as an absolute positive development. While it does demonstrate a gap: crimes committed solely in Myanmar, by other groups, fall outside the jurisdiction of the Court. Kate herself would hesitate to be too cynical as she stated that we have a come a long way and that because something is happening, expectations are increased. Akila Radhakrishnan added that most of the frustrations are political: the inability of the UNSC and political work arounds. Ambassador Rapp closed the topic by stating that what is happening around the situation in Myanmar is encouraging.  

From the audience, the Counsel on Rohingya issues from the Government of Bangladesh issued a warning for the problems with witness contamination in refugee camps in Bangladesh. Kate Vigneswaran agreed that this is a concerning issue, mentioning the large amount of interviews done by PILPG for its report. The Counsel of the Government of Bangladesh and Vigneswaran moreover agreed that Myanmar appears to be concerned with the investigation of the ICC.