Side Event: Complementarity in Central and West-Africa (co-hosted by France, Senegal, International Federation of Human Rights (FIDH) and Amnesty International)

Overview by Emma Bakkum, Research Associate PILPG-NL

Speakers:

• Alioune Tine, Director, Regional Office for West and Central Africa, Amnesty International

• Karine Bonneau, Head, International Justice Desk, FIDH

• Drissa Traoré, Lawyer and FIDH Vice President (Mali)

• Mathias Maroub, President of the Central African Observatory for Human Rights (CAR)

• Asmao Diallo, President of the Association of Victims, AVIPA (Guinea)

• Jacques Mbokani, Professor of Law, Catholic University of Louvain (DRC)

Highlights:

1. This side event focused on Central and West African states that provide an example of how complementarity between ICC and States Parties works in practice.

2. The panelists highlighted domestic challenges, such as ongoing insecurity and instability, the lack of political will, and capacity building.

3. The panelists underlined the importance of complementary justice efforts to provide justice for victims.

4. Amady Ba, head of international cooperation at the OTP, noted that the ICC truly encourages complementarity.

5. The CAR Special Criminal Court is not functioning yet due to financial problems and national and international judges need to be appointed. The headquarters are in Bangui and security will be ensured both by national and UN forces. The applicable law is CAR law, but judges will be able to refer to international standards.

Developments in Central and West African states, namely the Central African Republic (CAR), the Democratic Republic of Congo (DRC), Guinea, and Mali, provide examples of how complementarity between the ICC and States Parties works in practice. The panelists of this side event highlighted some of the domestic challenges faced by these countries in pursuing complementary justice, especially the lack of political will, capacity building, and ongoing insecurity and instability. All of the speakers underlined the importance of complementary justice efforts in providing justice for victims.

Asmao Diallo discussed the witness testimonies concerning the situation in Guinea. She noted that victims remain insecure and those responsible remain able to intimidate victims to prevent prosecutions. She also noted that the ICC’s OTP is committed to seeking justice in Guinea and often visited and consulted regarding investigations. Drissa Traoré discussed the developments of judicial processes in Mali and highlighted certain challenges, including the lack of political will, insecurity of the judges, and the lack of capacity and resources. Jacques Mbokani then mentioned jurisprudence of the Congolese courts in terms of prosecution of crimes under the Rome Statute. Although he praised the number of cases the courts have completed and the work of NGOs, he noted the need for improvements. A clear strategy for the prosecution of international crimes is necessary, as up until now prosecutions have been carried out in “a sort of haphazard manner”. Moreover, courts should interpret complementarity differently in order to include crimes committed before 2002. Finally, courts should have a higher capacity in order to prosecute “bigger fish” and to strengthen the protection of witnesses and victims. Mathias Maroub discussed the Special Criminal Court in CAR and noted that the persistent insecurity in CAR remains a barrier for the court and discourages victims from seeking justice.

Amady Ba, head of international cooperation at the OTP, added that the ICC truly encourages complementarity. The OTP is working in an efficient manner on complementarity by encouraging political will to ensure national prosecution of international crimes.

Questions were raised regarding the location and security of the Special Criminal Court in CAR, and the applicable law. Mathias Maroub answered that the headquarters are in Bangui and that security will be ensured both by national and UN forces. The applicable law will first of all be CAR law, but judges will be able to refer to international standards. He furthermore noted that the court is not functioning yet due to financial problems and that national and international judges need to be appointed. The last question related to states that prefer to reduce the role of complementarity. Asmao Diallo answered with a call upon states to make sure to prosecute those responsible for crimes wherever they might find them. Victims must be heard and those responsible must be prosecuted. Her colleague added that wanting to reduce the role of complementarity it is the wrong message to send, especially for victims.

Side Event: “An Introduction to the Bar Association: The New Voice for the Legal Profession”

Overview by Kassahun Molla, Research Associate PILPG-NL

Speakers:

1. Paul Wilke, Ambassador of the Kingdom of the Netherlands (moderator)

2. Sergio Gerardo Ugalde Godinez, Ambassador for Costa Rica and Vice President of the ASP

3. Fatou Bensouda, Chief Prosecutor of the ICC

4. Judge Fernandez de Gurmendi, President of the ICC

5. James Stewart, Deputy Prosecutor ICC

6. Herman von Hebel, Registrar of the ICC

7. David Hooper, President of the ICCBA

 
Highlights:

• All speakers expressed delight with the inauguration of the International Criminal Court Bar Association (ICCBA).

• ICCBA has both a defense and a victim’s counsel.

• ICCBA’s structure was one of the points of the presentation.

The side event was opened by the moderator who introduced the key speakers. ICC’s President, Judge Silvia Fernández de Gurmendi expressed her delight with the inauguration of the International Criminal Court Bar Association (ICCBA). Further, she pointed out that the ICCBA is an independent organ having a special synergy with the court and emphasized that the court will continue to support the work of ICCBA. Moreover, she emphasized the instrumentality of ICCBA in terms of engaging with states and victims. This was followed by the speech made by chief Prosecutor Fatou Bensouda. The prosecutor welcomed the inauguration of the ICCBA. She underscored that the operationalization of ICCBA is another important means of, among other things, ensuring effective and quality representation, upholding a higher standard of legal profession and ethics. More importantly, the prosecutor emphasized that the creation of ICCBA will advance the values of the Rome Statute. The Vice President of the ASP, Ambassador Sergio Gerardo Ugalde Godínezed assessed that the creation of ICCBA is a welcoming development and expressed ASP’s support to the ICCBA. ICC’s Registrar, Herman von Hebel also pointed that ICCBA’s operationalization will strengthen the overall the Rome statute system.

The next activity was a presentation made by the president of the ICCBA Counsel David Hooper QC, regarding the reasons why ICCBA was established and the approaches at national and international levels. The council’s presentation highlighted the way bar associations developed in different states and indicated the situations in this respect at different international criminal tribunals. Bar Associations, he pointed, represent members’ interest, provide professional training, and provide a platform for members to convene.

Counsel David pointed to the uniqueness of the ICC in terms of victims’ role at the Court and indicated that the ICCBA has reflected this uniqueness in its formulation. Accordingly, ICCBA has both a defense and a victim’s counsel. On his remark, he reminded the conveners that the constitution of ICCBA was adopted on 1 July 2016 and it envisages three modes of membership, having their specific conditions for membership. Namely, Full, Associate, and Affiliate memberships. However, he emphasized that membership to the ICCBA is not a requirement in order to be able to practice before the ICC. It was also indicated that ICCBA is not concerned with disciplinary processes.

ICCB’s structure was one of the points of the presentation. The ICCBA has different organs. The Executive Council is composed of 15 members and is responsible for the day-to-day operations and management of the ICCBA. This is supported by eight various committees on a range of issues. The Committees are Defence Committee, Counsel Support Staff Committee, Legal Advisory Committee, Training Committee, Victims Committee, Professional Standards Advisory Committee, Membership Committee, and Amicus Committee. The side event was concluded by general remarks by individuals running some of the committees.

Side Event: Book Launch and Discussion “Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals”

Event co-hosted by the International Nuremberg Principles Academy (INPA) and Germany

Overview by Jill Baehring, Research Associate PILPG-NL

Highlights:

• Prof. Linda Carter, University of the Pacific and McGeorge School of Law as well as editor of the book, called the deterrence effect a long-term development, which was based on several factors such as the creation of an historical record of atrocities by the respective court, the capacity-building at a national level, the development of norms within society, and the confidence in the international system.

• Jennifer Schense, Director of House of Nuremberg and editor of the book, defined deterrence as the result of an actual threat of accountability combined with the perpetrators’ perception of such.

• The importance of an interdisciplinary approach and realistic expectations was pointed out several times in the discussion with the audience.

The side event was opened by moderator Klaus Rachwitz, Director of the International Nuremberg Principles Academy. In his opening remarks, he stressed that the Nuremberg principles, which were unanimously adopted in the aftermath of the Second World War, had influenced the creation and development of international law on all levels.

Afterwards, Dr. Guido Hildner, Deputy Director-General, Ministry of Foreign Affairs of Germany, had the word. He recounted the creation of the International Nuremberg Principles Acdemy and presented the book “Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals”.

Judge Bertram Schmitt (ICC) noted that, while respecting the decision of the respective States Parties, he very much regretted the recent withdrawals. He called it lamentable that States would deprive themselves from the Court. Nevertheless, he emphasised that their critique needed to be heard. However, some of the issues with the Court were inherent and arising from the system of international justice itself. He pointed out that the Court continued its mission and had already delivered three judgements in 2016. The Court needed to make itself more visible to be perceived in its full relevance.

Christian Mahr, Director of External Operations at the ICC Registry, announced a new division of the Court focusing and bundling outreach activities, which would serve to achieve the goals of the Rome Statute. Part of this new outreach strategy would be more activity on social media and the new visitors’ center at the ICC. He called these activities a conscious effort to brand the Court and to make it an actor in the public realm.

Klaus Rachwitz added that the idea of deterrence, which was also a matter of outreach, originated in the Nuremberg Trials, where the idea arose that a Court of International Criminal Justice could cause a deterrence effect.

Jennifer Schense, Director of House of Nuremberg and editor of the book, subsequently talked about the book’s methodology and main conclusions. The book would address 10 situation countries of the ICC and take into account the perceptions of criminality, safety, and interactions of society in an environment where crimes have been committed. She defined deterrence as the result of an actual threat of accountability combined with the perpetrators’ perceptions of fear of punishment. She based this on the assumption that people were acting on basis of their perception. She added that the Court needed to develop a dialogue with its State Parties and a public perception of its activities.

Mark Drumble from the Washington and Lee University and external reviewer of the book, added that international law was inherently relying on politics. For victims, the perception of prosecution and impartiality mattered much more than for the criminal proceedings themselves.

Prof. Linda Carter, University of the Pacific and McGeorge School of Law as well as editor of the book, pointed out that, in order to achieve broader accountability, more national capacity building was needed. She called the deterrence effect a long-term development, which was based on several factors such as the creation of an historical record of atrocities by the respective court, the capacity-building at a national level, the development of norms within society, and the confidence in the international system.

In the discussion with the audience, the focus was on the preventive effect of deterrence, which could be achieved through a multi-dimensional approach. Jennifer Schense called the violation of human rights “the canary in the coalmine”, since the absence of their punishment could create a climate which facilitated further crimes. The importance of an interdisciplinary approach and realistic expectations was pointed out several times.

Side Event: “Climate justice” (co-hosted by the Republic of Vanuatu and the Institute for Environmental Security)

Overview by Emma Bakkum, Research Associate PILPG-NL

Speakers:

1. Polly Higgins, Barrister and International Ecocide Lawyer

2. Arnold Kiel Loughman , Attorney General, Vanuatu

3. Kirsten Meerchaert, Hague Head of Office, Coalition for the ICC

 
Highlights:

• Vanuatu appealed to ICC to consider including climate and environmental crimes into the Rome Statute, underscoring the relevance of these crimes to Pacific Island states.

The panelist of this side event emphasized the increasing problems and challenges faced by, especially Pacific Island, states as a result of climate change and environmental destruction. They appealed for a collective approach and in particular they appealed to the ICC to increase its involvement, proposing Ecocide to be included in the Rome Statute as an ICC crime to hold individuals accountable for climate and environmental crimes. Polly Higgins commented on the proposed draft law that includes provisions for prosecuting environmental destruction and an obligation to provide assistance to those affected by climate change and natural disasters, laying down a duty of care. The panelists considered it inevitable that Ecocide will become a part of the ICC and its fight against impunity.

The audience brought up several issues, including difficulties with accommodating collective responsibility into the international criminal law framework, measuring the gravity of climate change, and the possibility of creating a special court for climate and environmental crimes. Lastly, support for the issue was discussed. The panelists were of the opinion that including Ecocide in the Rome Statute could move several non-member states to become signatories and thus strengthen the universality of the Rome Statute. Furthermore, it could move the focus away from the African continent.

Seventh Plenary Meeting of the ASP15

Overview by Georgios Plevris, Research Associate PILPG-NL

Highlights:

• The Working Group on Amendments discussed proposals by Belgium with regard to amendments to Article 8 to bring the use of four particular types of weapons during International Armed Conflicts (IACs) and Non-International Armed Conflicts (NIACs) into the jurisdiction of the Court.

• A controversial issue arose in the debate of Working Group on Amendments with regard to the amendment of the Provision Rule 165.

The 7th plenary of the Assembly of States Parties opened with speeches and submissions of reports from the various Working Groups. Highlights of the session include the Oversight Committee and the Working Group on Amendments.

The Oversight Committee, established back in 2007 to oversee construction and transition of the Court to the Permanent Premises, has concluded its work, and submitted its final report before the Assembly, as well as a Draft Resolution on the Permanent Premises. Additionally, shall a Governance structure be established to carry on this task, it will rely upon the existing structures and mechanisms of the Committee and the Bureau. As it was noted, there is consensus among State Parties on this and thus the adoption of the Draft Resolution was suggested.

The Chair of the Working Group on Amendments also addressed the plenary today, submitted along a report, 2 addendums agreed upon by the Working Group, as well as a draft resolution (L7 Draft Resolution). The Working Group on Amendments discussed proposals by Belgium with regard to amendments to Article 8 to bring the use of four particular types of weapons during International Armed Conflicts (IACs) and Non-International Armed Conflicts (NIACs) into the jurisdiction of the Court. However, the Working Group will consider the Belgian report in its further meetings, with an aim to submit an amendment at the 16th Session of the ASP in 2017. Furthermore, amendments to the “Language Cluster” to the Rules of Procedure and Evidence were discussed. Because certain delegations voiced the concerns with regard to the Rule 76(3), the Working Group will also refrain from making proposals and will take up the issue in further discussion on smaller groups of interested delegations.

Lastly, a controversial issue arose in the debate of Working Group on Amendments with regard to the amendment of the Provision Rule 165. Discussion on the issue was polarized in the Friday session of the Group, when two differentiated groups were formed; some delegations with Kenya leading them argued that the rule not be applied by the Court and a moratorium be instituted for its use. On the opposite side, the majority of the delegations, Belgium leading the debate, argued that the Rule be applied if the ASP does not manage to reach a conclusion, while it is not up to the ASP to direct the Court on how to apply the rule; that is something the Court and its Judges must adjudicate upon. As a result, two addendums were added to the Working’s Group Report that reflected that differentiation. Kenya and Belgium raised their differentiated views on the issue one more, before the plenary session officially ended.