ASP Plenary Meetings | First and Second Plenary Meetings of the 16th ASP

FIRST PLENARY SESSION

The First Plenary Session welcomed the visiting delegations of States Parties on the morning of Monday 4th December. The core tasks that will be focused on during the ASP are the judges’ elections, the budget, cooperation, aggression, and the trust fund for victims, among others.

President Kaba of the ASP was invited to speak, giving a moving farewell. He reflected on the legacy of his presidency, and highlighted that legal subsidiarity was a key principle in moving forward. He said it was up to states to judge and try those responsible for the most serious crimes on their own soil, and that the ICC should be a court of last resort. Further, he emphasized the importance of the trust fund for victims, and said that the court should not have to weigh up which cases to take due to limited resources. He believes that equipping the prosecutor’s office with the necessary funds would change the abilities of the court, and hopefully in turn improve the court’s relationship with African states. He also reflected on the crime of aggression, and said that the ASP must act wisely and through consensus activate the court’s competence. Finally, he concluded on a note of hopefulness. Senegal, he said, will continue to work to tackle impunity and to make sure the most serious crimes are never committed again. He wants a new mission to be mandated to the court – to make itself redundant. He envisages a world where the ICC is no longer needed as it will “prove that evil has been driven out of the world” and universal justice will be accepted in each and every state.

The President of the ICC gave the report on activities of the court. She spoke of the unprecedented judicial workload, and how the ASP is an excellent forum for constructive dialogue among all Member States. She said the court seeks to contribute to this dialogue and was willing to listen to all views and concerns without prejudice to its judicial independence. She reflected on the new efficiency measures. As a judicial institution the court is a distinct kind of international organization, judicial independence is integral to the functioning of the court. However, this independence should not get in the way of efficiency. She spoke of the concrete reforms put in place that are already having a visible impact in courtroom and cases e.g. the reduction required for some phases, or aspect of proceedings. Next, she said, there are certain areas upon which the court should now focus, namely the representation of victims, reparations, and legal aid. In the last three years the court has sought to improve by collective discussions to promote cohesive judicial culture and to accelerate proceedings, increase predictability, and facilitate understanding – which she admitted was difficult in multicultural surroundings. She said she hopes the judges will approach this complex court with flexibility, an open mind, and a cooperative attitude.

ICC Prosecutor Bensouda gave an overview of her Office’s work over the past year. She said that she views the ICC as a firmly rooted but still evolving institution, an independent judicial body that is unique in many ways that must work without fear or favor. She recalled that there had been successful prosecutions for three convictions in 2016. She also recalled that the Office has worked to investigate crimes in Libya, and that investigations continue with Darfur, Cote D’Ivoire, the Central African Republic, and Georgia. Further, that there are a number of preliminary investigations being conducted. She believes that the results concerning Burundi and Afghanistan are illustrative of the progress that has been made. She strongly asserted that the investigation into crimes committed in Burundi would not be hampered by their withdrawal, which will have no effect over alleged crimes committed whilst they were a state party nor on their obligation to cooperate with the court. She emphasized that the full backing of the court was integral to its functioning in light of the 15 outstanding arrest warrants and calls for greater collaboration between the Court and Member States. She concluded by saying that, on the eve of the Rome Statue’s 20th anniversary, she took the humble view that “we are not standing today at a crossroads for the future of international criminal justice – it is on the march”. The court is increasingly living up to its promise in contributing to the emergence of a law-based criminal order. It is up to states parties first and foremost as custodians of Rome statutes to stand by its values.

Finally six members to Committee of Budget and Finance were elected, and the majority of the 18 Members of the Bureau. The new President of the ASP was elected; Mr. O-Gon Kwon of the Republic of Korea will take over from President Kaba.

SECOND PLENARY SESSION

The Second Plenary Session saw the election of two out of the six ICC judges being elected. Ms. Luz del Carmen Ibañez Carranza of Peru, and Ms. Tomoko Akane of Japan were the first two candidates named as judges during the first ballot. Tomorrow will show the results of the second ballot, and this will go on until six judges have been elected.

ASP Background Briefings | Sixth Election of Judges of the International Criminal Court

The Sixteenth session of the ASP will see the sixth election of judges of the International Criminal Court. Under article 36 of the Rome Statute, six judges will be elected to serve a nine-year term. Nominations are made either in the procedure outlined in their home country for appointment to the highest judicial office, or by the procedure for nominating judges for the International Court of Justice. Candidates up for nomination are expected to be of “high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.” The candidates are organized into two groups, List A and List B. List A candidates have a special competence in (international) criminal law, whereas List B candidates have competence in relevant areas of international law. At least one judge will be selected from List A and one from List B. In regard to demographics, one candidate must be from the African group, the Asia-Pacific group, and the Latin-American and Caribbean states group.

During the ASP, there will be a secret ballot where the State Parties will vote. The judges elected to the court will be the six candidates with the “highest number of votes and a two-thirds majority of the States Parties present and voting.” When voting, States Parties must consider that judges should be of different nationalities, to represent the main legal systems, to have diverse geographical representation, and be a fair mix of men and women.

The retiring judges are Ms. Joyce Aluoch (First Vice President) (Kenya), Ms. Silvia Fernández de Gurmendi (President) (Argentina), Ms. Sanji Mmasenono Monageng (Botswana), Ms. Kuniko Ozaki (Japan), Mr. Cuno Tarfusser (Italy), and Ms. Christine van den Wyngaert (Belgium). Five out of the six retiring judges are women – two of which are President and Vice President of the Court – positions that will also be filled during this year’s ASP. Of the remaining 12 only one is a woman. This makes for an interesting election year, and in fact only three of the twelve of the nominated judges are male. The Coalition for the International Criminal Court highlights the importance of maintaining a fair gender balance on the bench, as the court sets a global example for equality. At least five female judges need to be elected to keep the current gender balance on the bench.

Candidates: List A

Mr. Rosario Salvatore Aitala, Italy

Ms. Tomoko Akane, Japan

Ms. Solomy Balungi Bossa, Uganda

Ms. Luz del Carmen Ibañez Carranza, Peru

Mr. Chagdaa Khosbayar, Mongolia

Ms. Nthomeng Justina Majara, Lesotho

Ms. Henrietta Mensa-Bonsu, Ghana

Ms. Kimberly Prost, Canada

Mr. Dragomir Vukoje, Bosnia & Herzegovina

Candidates: List B

Ms. Reine Adelaide Sophie Alapini- Gansou, Benin

Ms. Zlata Durdević, Croatia

Ms. Ariela Peralta Distefano, Uruguay

Sources

1. Sixth Election of Judges of the International Criminal Court, (Sept. 11, 2017), U.N. Doc. Resolution ICC-ASP/16/3, available at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP16/ICC-ASP-16-3-ENG.pdf

2. Rome Statute of the International Criminal Court, (1998), available at https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf

3. Coalition for the International Criminal Court, Female Candidates Sought to Fill Six Spots on ICC Judges’ Bench, Coalition for the International Criminal Court,(Apr. 12, 2017), available at http://www.coalitionfortheicc.org/news/20170412/female-candidates-sought-fill-six-spots-icc-judges-bench

Tenth Plenary Meeting of the ASP15

Overview by Emma Bakkum and David Lando, Research Associates PILPG-NL

Highlights:

1. Adoption of draft resolutions worked on during the 8th and 9th plenary meetings.

2. Introduction of the Omnibus Resolution. China expressed concern about non-member states being excluded from informal consultation processes.

The 10th plenary meeting on the last day of the 15th ASP consisted of the adoption of several draft resolutions that have been worked on during the 8th and 9th plenary meetings.

First of all, the Omnibus Resolution was introduced. The date of next year’s ASP was also discussed: ASP16 will take place between 4 and 14 December 2017, in New York. Regarding the Omnibus Resolution, China and Iran expressed concerns about the exclusion of non-member states from informal consultation processes, such as the consultation process for the Omnibus Resolution. China argued that there is no legal basis for excluding observer states. China furthermore added that excluding observer states harms them, and reiterated that in the interest of promoting the legitimacy and universality of the ICC, all states should be included. “Urgent action is needed for this injustice already existing” – China ended its statement.

Secondly, the following draft resolutions were adopted without a vote.

– Resolution ICC-ASP/15/Res.1 on the proposed programme budget for 2017.

Before the adoption of this resolution, Brazil called for revision of the process leading to the establishment of the (increased) budget. According to Brazil, the budget proposal is not in accordance with the financial realities of member states. Venezuela furthermore expressed hope to see adjustments next ASP in “sticking to the budget” and to see all organs of the Court working closely together to identify where cost-savings are possible. Japan reiterated these two points after adoption.

– Resolution ICC-ASP/15/Res.5 on permanent premises.

– Resolution ICC-ASP/15/Res.3 on cooperation.

– Resolution ICC-ASP/15/Res.4 on amendments to rule 101 and rule 144(2)(b) of the Rules of Procedure and Evidence.

Lastly, two members for the CBF were elected. Africa elected a member from Burkina Faso and the Eastern European group elected Estonian candidate Mr. Urmet Lee. They clarified later that an agreement was made between Estonia and Bosnia Herzegovina that Mr. Lee would serve the first half and Mrs. Emina Ćirić from Bosnia Herzegovina the second half of the term.

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.

Eleventh Plenary Meeting of the ASP15

Overview by Rosalie Dieleman and Emma Bakkum, Research Associates PILPG-NL

Highlights:

1. The Assembly called upon all states to contribute to the trust fund to facilitate participation in future ASPs for underdeveloped states.

2. Vice President Sergio Ugalde concluded the ASP by thanking all parties involved for their cooperation and commitment.

The 11th and final plenary meeting concluded the 15th ASP with the adoption of the Omnibus Resolution, the consideration and adoption of the report of the Credentials Committee and the report of the 15th session of the ASP.

Firstly, the Omnibus Resolution, ”Strengthening the ICC and the ASP” (ICC-ASP/15/L.3), was adopted. Ghana, as coordinator of the African group, expressed concerns about transparency of staffing practices of the Court. Ghana requested on behalf of the African Group, that the registrar would provide no later than 31 January 2017 a comprehensive report on the staffing practices of the Court. Containing amongst other information the nationality and gender of each post. Kenya, Nigeria, Tunisia, Venezuela, Namibia, Botswana, Uganda, South-Africa, DRC, Burkina Faso, Tanzania, and Lesotho spoke out to support this statement. France furthermore expressed it was having some difficulties with regards to the translated text of the Omnibus resolution, and requested the coordinator to have another look at this translation.

The resolution was adopted in consensus, and Belgium, Kenya and the Vice President of the ASP thanked the facilitor for the work she had undertaken. Subsequently, the report of Credentials Committee (ICC/ASP/15/L.2) and the report of the 15th ASP session (ICC/ASP/15/L) were adopted by consensus. Under the agenda item “other matters” the Vice President of the ASP thanked civil society, the Court and delegations for expressing their views and contributing to the dialogue during the open meeting of the Bureau concerning the relationship between the Court and African states. Furthermore, appreciations were expressed for those states who had contributed to the Trustfund for Victims, and called upon those in the position to do so to make further donations.

After this rather speedy adoption of the resolutions and reports without extensive debate, Vice President Sergio Ugalde concluded that the ASP was able to successfully conclude its work. He thanked states parties, civil society and members of the Court itself for contributing in achieving this result. He stated that this was a very challenging ASP for various reasons, yet dialogue in an open, sincere, profound and respectful manner contributed to a successful outcome. Ugalde stated that: ”We remain bound by our common endeavor to combat impunity and bring relief to victims of atrocious crimes”. He officially concluded the 15th session of the Assembly of States Parties to the Rome Statute by thanking all parties involved for their “cooperation and commitment and constructive spirit” and closed the session with a minute of silence and meditation.