ASP18 Informal Consultations on the Omnibus Resolution

18th Assembly of States Parties to the Rome Statute

Day 3 & 4 (4 & 5 December 2019)

Name of the Event: Informal Consultations on the Omnibus Resolution

Overview by: Signe Wolf Børm, Francisca de Castro, Sindija Beta, Junior Research Associates, and Hester Dek, Intern PILPG-NL

Main highlights:

• After States Parties remained to disagree on Brazil’s proposal for equitable geographical representation of the Bureau during the first meeting, during the second meeting Brazil’s proposal for OP102 bis (now paragraph 101) was approved subject to the outcome of the assessment being included in the annual report of the Bureau.

• The two meetings saw discussion on the duration of the ASP. Germany’s proposal for OP103 bis (now paragraph 103) regarding the length of the ASP was approved as a separate paragraph from OP103 (now paragraph 102).

Summary of the Informal Consultations:

On 4 and 5 December (days 3 and 4 of the 18th Session of the ASP) States Parties convened to discuss the draft Omnibus Resolution (entitled “Strengthening the International Criminal Court and the Assembly of States Parties”).

On 4 December, two main issues were raised: equitable geographical representation and the duration of the ASP. Brazil raised the issue of equitable geographical representation and was supported by several States Parties, including Slovakia, Argentina, Chile, Dominican Republic, and Mexico. Argentina stated that while the number of States Parties to the Rome Statute has increased over the past years, this has not been translated to the representation in the bureau. Mexico’s representative, in relation to their statement of support, noted that “saying the time is not right is wrong, we have been discussing the matter for 3 years now.”  Mexico further noted that while it might not be the main issue of this ASP, it should nevertheless be discussed.  

Slovenia and Bulgaria voiced their opposition to the proposal. In doing so, they provided multiple reasons related to the practical effects of the proposal. Bulgaria noted that the current situation is reflecting a good balance, and there are currently more important matters on the agenda.

On the matter of the duration of the ASP, Germany proposed a decrease from two weeks to one week. Its main argument was cost-related. Belgium and Liechtenstein opposed this proposal, believing that it is inappropriate to shorten the sessions, and furthermore noting that the discussion should be paused until the report by the bureau has been released. Australia, Finland, Slovenia, Sweden, Italy, France, Japan indicated their support for Germany’s proposal.

On 5 December, consultations on the omnibus resolution continued with three main points of discussion – the workload of the Bureau, equitable geographical representation of the Bureau as proposed by Brazil, and the length of ASP’s as raised by Germany.

Liechtenstein brought forward the first issue. Liechtenstein worried that “encouraging” the Bureau to engage with States Parties and other relevant actors to support the Court’s efforts with respect to sexual and gender-based crimes would overburden the Bureau. Canada and Finland assured Liechtenstein that the Bureau has approved the paragraph and it will not affect the Burea’s workload extensively. Liechtenstein consequently withdrew its objection. 

The second issue concerned Brazil’s proposal for equitable geographical representation in the Bureau. Slovenia proposed that the paragraph does not include the necessity for the Bureau to submit a report to the 19th ASP. Poland and Bulgaria seconded Slovenia’s proposal. Argentina, Uruguay, Peru, Japan, Guatemala, Venezuela, Mexico, and Panama dismissed Slovenia’s objections and wished to include the paragraph as it was proposed by Brazil. After discussions among the States Parties, Slovakia proposed that instead of requesting a separate report on the matter, the Bureau includes this question in their annual report. States Parties accepted Slovakia’s amendment. 

The third question regarded the proposal to have a 6 day ASP unless judicial or prosecutorial elections are held during that year. States Parties agreed that the proposal should be included in a separate paragraph and not combined with paragraph 103 (now paragraph 102). The wording of the paragraph was subsequently accepted. 

All other paragraphs were approved with little or no discussion. The adopted Omnibus Resolution will be published on the ASP’s website.

ASP18 Ninth Plenary Meeting: Adoption of Resolutions

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 5 (6 December 2019) 

Name of the Event: Ninth Plenary Meeting: Adoption of Resolutions

Overview by: Sindija Beta and Kelly van Eeten, Junior Research Associates PILPG-NL

Main Highlights:

• Seven draft resolutions were adopted by consensus, including on the review of the procedure for the nomination and election of judges and the Review of the ICC and the Rome Statute System. 

• The ASP agreed on a budget of €145.62 million for 2020. 

• The ASP adopted a resolution to amend Article 8 of the Rome Statute to include the war crime of starvation in non-international armed conflicts.

Summary of the Event:

The ninth and final session of the 18th ASP saw the adoption of seven resolutions, as well as the report of the Credentials Committee and the report of the 18th ASP.  

First, the report of the Working Group on the Program Budget, as well as the draft resolution on the proposed program budget for 2020 (ICC-ASP/18/L.4), were adopted. While the Court’s proposed budget request for 2020 amounted to €147.42 million and the CBF recommended to approve a budget of €146.21 million, States Parties agreed on a budget of €145.62 million. After adoption, Japan on behalf of Canada, France, Germany, Italy, Japan, Spain, and the UK,  stated that they encourage prioritization of the budget and expressed hope that all organs of the Court will further work on saving, efficiency, and effectiveness. Japan finally underlined the importance of efficient and transparent and accountable implementation of the Court’s budget. Belgium, on behalf of Argentina, Belgium, Costa Rica, Finland, Ireland, Liechtenstein, Luxembourg, Slovenia, Sweden, and the Netherlands expressed its disappointment with the adopted program budget which is lower than the already scrutinized CBF proposal. Belgium noted it would have liked a budget more in line with the needs of the Court and that the approved budget does not match the support for the Court as expressed during the ASP debate. Belgium finally expressed concern regarding the Court’s liquidity. 

The resolutions on the remuneration of the judges of the ICC (ICC-ASP/18/L.9) and on cooperation (ICC-ASP/18/L.5) were adopted by consensus.  

The resolution on the review of the procedure on the nomination and election of judges (ICC-ASP/18/L.6) was also adopted by consensus. Uruguay requested to make a statement. It noted that this resolution is an opportune decision to strengthen the performance of the ICC, emphasizing the importance of geographical representation and gender balance for the Court. 

The ASP President continued with the resolution on amendments to Article 8 of the Rome Statute of the ICC (ICC-ASP/18/L.8), adopted by consensus as well. The Bolivarian Republic of Venezuela requested to make a statement, in which it expressed its concern about the language of the amendment and that the amendment can be misused to unfairly criminalize states. Venezuela expressed its disapproval of the amendment but it would not block the consensus because of its commitment to the Rome Statute. Switzerland and Australia welcomed the adoption of the resolution on amendments to Article 8 to include starvation as a war crime in non-international armed conflict. Both underlined the importance of the amendment and Switzerland encourages all States Parties to swiftly ratify and implement it.

After the draft omnibus resolution (ICC/ASP/18/L.3) was adopted by consensus, the resolution on the Review of the ICC and the Rome Statute system (ICC-ASP/18/L.7) was adopted by consensus. Sierra Leone requested to make a statement, in which it explicitly welcomed the adoption of the review resolution, adding that confidential information obtained by the independent experts should not be disclosed. 

Finally, the ASP adopted the Report of the Credentials Committee (ICC-ASP/18/L.2), in which it was noted that 26 States Parties have not provided information on their representation at the 18th ASP. The report of the 18th session of the ASP (ICC-ASP/18.L.1) was presented and adopted. It was flagged that the final document will be available on the website of the ICC.

After the adoption of all draft resolutions, the Coalition for the International Criminal Court (CICC) in a final statement expressed its strong commitment to the Court and the Rome Statute system. CICC called on the Assembly to renew dialogue with civil society on the essential needs of the Court, as well as provide the Court with adequate resources. CICC welcomed the adoption of the resolution on the review of the nomination and election of judges and emphasized the need to ensure transparent and merit based elections, as well as to reassess the representative character of the Bureau as expressed in the omnibus resolutions. 

With this statement and the adoption of seven resolutions, the ASP President closed the 18th session of the ASP a day early.

ASP18 Eight Plenary Meeting: Introduction of Draft Resolutions

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 5 (6 December 2019)

Name of the Event: Eight Plenary Meeting: Introduction of Draft Resolutions

Overview by: Rachel Grand, Andreina De Leo, and Francisca De Castro, Junior Research Associates PILPG-NL

Main Highlights: 

• The facilitators of several Working Groups introduced the draft resolutions for adoption, including the Omnibus Resolution and resolutions on the budget, cooperation, the remuneration of judges, the review of the procedure for the nomination and election of judges, the review of the ICC and Rome Statute system, and on amendments to Article 8 of the Rome Statute.

• The ASP decided to consider the adoption of these resolutions later that day at 16:00. 

Summary of the Event: 

During the 8th plenary meeting, several draft resolutions were presented to the ASP. The meeting began with a discussion of the omnibus resolution, provided in document ICC-ASP/18/L.3. The facilitator for the Omnibus Resolution, Switzerland, noted that the omnibus resolution highlights the desire to have better geographical representation within the Court. The coordinator expressed hope that the resolution would be adopted by consensus. Following that, the resolution on the proposed budget for 2020, contained in resolution ICC-ASP/18/L.4, was presented. The proposed budget was introduced during the fifth plenary meeting and was further discussed during formal and informal consultations within the Working Group. 

Ambassador Luis Vassy (France) and Ambassador Momar Guèye (Senegal), co-facilitators on cooperation, presented the draft resolution on cooperation, in document ICC-ASP/18/L.5. This resolution underlines the importance of global cooperation with States Parties, NGOs, and civil society. It also includes a provision for the creation of a numeric secure platform that would enhance cooperation between states. Ambassador Momar Gueye pointed to some of the objectives of the provisions which include: the preoccupation of the States Parties on the non-execution of arrest warrants concerning 15 people, the creation of said platform with the objective of enhancing state cooperation which would start working in 2020, the importance of cooperation procedures and mechanisms with the hopes of reinforcing these procedures and the cooperation between the Court, States Parties, other states, and NGOs. Another point put forward was the protection measures for witnesses and their families in need of witness protection, amongst others. 

Mr. Luke Roughton (New Zealand), facilitator for the review of the procedure for the nomination and election of judges, introduced draft resolution ICC-ASP/18/L.6 on the review of the procedure for the nomination and election of judges, stressing the importance of the review for States Parties, confirmed by their willingness to facilitate the adoption of the resolution. He presented the amendment to paragraph 3 of resolution ICC-ASP/3/Res.6, which would modify the date of the nomination period, as well as to paragraph 12. With regard to the latter, the resolution proposes the facilitation of public roundtable discussions with the candidates. Furthermore, he noted that States Parties showed willingness to cooperate and use a constructive approach even with regard to the most controversial issues. He concluded his intervention by hoping for an adoption of the resolution by consensus.

The Vice President of the Assembly, Ambassador Jens-Otto Horslund, introduced the draft resolution on the review of the ICC and the Rome Statute, system ICC-ASP/18/L.7.  The independent expert review will begin in January and will look at all components of the Court. The resolution highlights the important role of States Parties to assist in improving the effectiveness and efficiency of the Court. This resolution was brought through lengthy and difficult negotiations. The Vice President noted that the President appreciated States Parties’ flexibility and willingness to compromise. He reiterated the hope that there will be consensus on this resolution.

A representative of Mexico, on behalf of the Chairperson of the Working Group on Amendments, delivered draft resolution ICC-ASP/18/L.8 on amendments to Article 8 of the Rome Statute. The draft resolution proposed to amend Article 8(2)(e) of the Rome Statute to include the use of starvation as a method of warfare in relation to conflicts of a non-international nature. He pointed out that his amendment is the result of several meetings with the working group on amendments. 

Ambassador Martin Sørby (Norway), Chair of the Working Group on the Revision of the Judges’ Remuneration, discussed resolution ICC-ASP/18/L.9 on the remuneration of the judges of the ICC. He recalled that during the 17th session of the ASP it was decided to establish a mechanism to review judges’ remuneration. To this aim, the Assembly requested the Working Group on the Revision of the Judges’ Remuneration to prepare terms of reference. The Working Group met several times during 2019 to carry out informal consultations aimed at reaching a final agreement. The resolution envisages the establishment of a panel of three members (Vice-President and Coordinator of The Hague Working Group, the facilitator on the budget, and one outgoing and former member of the Committee on Budget and Finance), to be appointed by the Bureau, with the task of facilitating adjustments to the remuneration of judges. The resolution was this put for consideration by the Assembly.

The ASP decided to consider the adoption of the presented resolutions later on Friday, at a plenary meeting at 16:00.

ASP18 Seventh Plenary Meeting: Cooperation

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 4 (5 December 2019)

Name of the Event: Seventh Plenary Meeting: Cooperation

Overview by: Raghavi Viswanath and Erez Roman, Junior Research Associates PILPG -NL

Main Highlights:

• The ICC Prosecutor called on States Parties to undertake more coordinated efforts relating to information sharing and the tracking of suspects.

• The Registrar encouraged more states to contribute to the trust fund for family visits. He also stressed on the need for states to voluntarily accept released defendants.

Summary of the Event: 

The seventh plenary meeting focused on cooperation, entitled “Inter-State and Inter-Institutional cooperation at the heart of cooperation challenges”. The meeting began with opening statements from the facilitators of the Hague Working Group - France and Senegal. Both states lamented how despite continuous efforts, the Court still faces difficulties in the enforcement of its orders. The facilitators outlined the top priorities for the working group - namely increased cooperation in the enforcement of arrest warrants, financial investigations, and voluntary cooperation agreements under Chapter IX of the Rome Statute. In light of the recent Paris Declaration, the group also seeks to explore mechanisms for the seizing of assets.

Senegalese ambassador Momar Diop then invited the panelists to share information on interstate initiatives for the effective implementation of the ICC’s mandate. Flavien Mbata (Minister of Justice, Central African Republic) spoke about how the CAR requested the Court’s intervention both in 2004 and 2014. On both occasions, CAR was able to engage in a fruitful cooperation efforts with the Court, which culminated in the opening of an investigation and the arrest of two suspects. However, he underscored the need for strengthening national capacity and full cooperation of all stakeholders. The Ambassador of Chad to Benelux spoke of the ICC’s draft plan of action on arrest strategies. The Ambassador advised the States Parties and the Court to refrain from formulations that require the UNSC to provide a mandate to peacekeeping forces to carry out arrests in Africa.

This was followed by presentations from the Genocide Network and the ENM from France, both of which stressed on the need for specialised war crimes units in States Parties. Matevz Pezdirc from the Genocide network particularly stressed the need for assistance in capacity-building and operational information sharing. He pointed out that courts in Finland and the Netherlands had begun relying on open source information in arriving at decisions. The OTP also predominantly relied on information sharing in the indictments issued regarding Libya in 2019. Besides the recommendation for national units, he recommended to set up regional networks. 

Prosecutor Fatou Bensouda then spoke of the operational challenges that the OTP faces in the enforcement of arrest warrants. She informed the Assembly of how the OTP is fully dependent on States Parties with respect to arrests since the Court lacks a police force of its own. She noted that the failure to arrest not only has serious financial implications for the Court, it also jeopardizes the collection of evidence and prevents the Court from developing useful jurisprudence. She then offered suggestions on how states can help the OTP. First, states could share information that could assist with the tracking of ICC suspects. Second, states can help the OTP identify investigative partners and create a deterrent environment that facilitates the enforcement of warrants. Third, she encouraged States Parties to proactively contribute to the ASP and UNSC and prevent cases of non-compliance.

The Court’s Registrar Peter Lewis then provided insights on potential practical cooperation opportunities. He spoke of the Court being depended on aircrafts to fly in suspects to the Hague. However, it is enormously expensive to do this commercially. Therefore, he encouraged States Parties that have military and commercial aircrafts at their disposal to enter into voluntary agreements with the Court. Second, he highlighted the need to create a network of countries willing to take in released or acquitted defendants. He commended the efforts of the Netherlands in finding interim solutions for Ble Goude. Nonetheless, in his view, such ad hoc arrangements are often too late to be effective. Therefore, an institutionalised mechanism should be preferred. Finally, he discussed the status of the trust fund for family visits. In its previous session, the ASP had set up a fund to enable relatives of the accused to visit them while they were serving their sentences or while in detention. This year, the Registry ran of funds. Therefore, he encouraged states to generously contribute to the fund.

Following this, the representative from Spain recorded Spain’s contribution to the Court’s efforts. In particular, he mentioned Law 18 of 2003 which operationalizes Spain’s cooperation with ICC. The representative concluded his statement by saying that a two-way cooperation between the ICC and the member states is what embodies complementarity. 

That brought the plenary meeting to the second part: statements from States Parties. The representative of Finland on behalf of the EU first stressed the importance of the Security Council’s support to the Court and pushed for a UN Security Council referral of the Rohingya issue to the ICC. Subsequently, he assured the ASP that the EU would continue to offer assistance where required and urges States Parties to enter into voluntary agreements and give effect to those agreements.

Several States Parties contributed to the discussion. Mexico joined the call of the EU communicated by Finland to enhance cooperation with the UN Security Council in areas such as travel bans and seizure of assets as a way to enhance the way the Court acts. Furthermore, he also called for better cooperation between the ICC and national authorities of the member states. Chile, Japan, Belgium, Italy and Gambia also encouraged states parties to sign voluntary cooperation agreements with the Court due to their importance for the effectiveness and efficiency of the Court.

Speaking on behalf of the Netherlands, Ambassador Paul van den Ijssel stressed that the witness protection programme and securing the rights of the accused was equally integral to the Court’s functions. To this end, he urged states to accept released prisoners and help the Court relocate witnesses. He spoke of the Netherlands’ efforts to support Ble Goude. However, he lamented how there was still no long-term solution in sight. 

Thereafter, the delegation from the UK listed its contributions to the OTP’s efforts. In particular, the UK made mention of its sentence enforcement agreement with the ICC (2007), its efforts to support ICC witnesses and their families, and its technical assistance to the Secretariat of the Trust Fund for Victims. The delegation also brought the Assembly’s attention to the UK’s recent outreach efforts - in financially supporting victims from the Central African Republic to attend the Bemba hearings.

The session concluded with statements from four CSOs - No Peace Without Justice, Darfur Women Action Group, the International Bar Association, and the Afghanistan Transitional Justice Group. All of them stressed the need to preserve the Court’s independence and strengthen national capacity, particularly in countries like Sudan. The IBA, in particular, noted that only five states parties have contributed to the trust fund for family visits thus far. It called on other states to contribute to the fund, and requested the ASP to consider allocating funds from the regular budget.

ASP18 Sixth Plenary Meeting: Review of the Court

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 3 (4 December 2019)

Name of Event: Sixth Plenary Meeting: Review of the Court

Overview by: Rachel Grand, Sindija Beta, and Kelly van Eeten, Junior Research Associate PILPG-NL

Main Highlights:

• 17 States Parties and four CSOs provided statements on the Review of the Court. Many of them emphasized the need for the review to be independent, transparent, and inclusive. 

• Several States Parties referred to the upcoming judicial and prosecutorial elections in their statements. 

• Some States Parties mentioned the importance of geographical representation and gender balance at the Court. 

Summary of the Event:

The sixth plenary meeting was dedicated to the Review of the Court. First, ASP President O-Gon Kwon introduced the topic. He referred to three documents relevant for the Review of the Court: The Matrix, the Terms of Reference (ToR) for the Independent Expert Review, and the Draft Resolution for the Review of the Court and the Rome Statute System, to be introduced later this week. He noted the timeline for the Independent Expert Review would start in January 2020, with stakeholder consultations between February and March, and a final report in September 2020. Therefore “time is of the essence,” the ASP president concluded. 

The Principals of the Court first provided statements on the topic of review. The ICC President, Chile Eboe-Osuji, voiced the Court’s support for the review and said that it was long overdue. Additionally, he noted that the funding of the Court needed specific attention. He put figures into perspective by referring to the resources of some major domestic investigations. He furthermore touched upon the current circumstances of the conditions of service of judges (expressing regret to be in disagreeance with Mr. Blok, Minister of Foreign Affairs of the Netherlands). The ICC Prosecutor, Fatou Bensouda, voiced her support for the independent expert review, as well as the steps her office has already taken for reform. She stressed the need for the review process to respect and preserve the Prosecutorial and Judicial independence, examine all parts of the system, and build on the steps the Court has already taken. The Registrar, Peter Lewis, warmly welcomed the review and voiced his interest in the review paying particular attention to cooperation, as well as geographical representation and gender balance.

17 States Parties and four CSOs provided statements, addressing the work on the review process. Many of them emphasized the need for the review to be independent, transparent, and inclusive. Many also urged for the cooperation of States Parties in the expert review, acknowledging States Parties’ responsibility. Finland, speaking on behalf of the EU, emphasized the need for state cooperation in implementing the objectives of the review.

Several States Parties urged for concrete action points to be implemented and to focus on the outcomes, including The UK, stating “reform is a process, not an event”. Other States Parties such as The Netherlands, New Zealand, and Brazil, also emphasized the need for action once the independent expert review is complete. 

Several States Parties focused on the upcoming elections of six judges and the Prosecutor in 2020. The International Federation for Human Rights (FIDH) cited the elections as an opportunity for change in the Court. Canada for instance emphasized the role of the ACN in the selection of candidates. Human Rights Watch (HRW) discussed the importance of electing both the Prosecutor and judges based on their merit, noting concern with regard to the politicization of the elections.

The geographical representation and gender balance remained a topic during the sixth plenary meeting. Both the Registrar and several states referred to it. Finland on behalf of the EU, New Zealand, Japan, Argentina, Uganda, and the African Network for International Criminal Justice mentioned gender balance, geographical representation, or both. Japan stated that underrepresentation and no representation at all of the states for the ICC has been a problem for years and urged that steps are taken towards the universality of the Rome Statute.

Throughout the discussion on the Review process, several States Parties, including Finland on behalf of the EU, Costa Rica, and the Netherlands, as well as HRW, underlined the importance of the fight against impunity. The Prosecutor stated that no state should be able to abuse human rights with impunity. Sierra Leone mentioned that the review of the Court could help close the impunity gap. France noted that the ICC is a major innovation and yet a young institution with high expectations.