Side Events: 17th Assembly of States Parties | “Lessons learned, fairness & access to justice in hybrid tribunals and specialized chambers”

(co-hosted by Australia, Liechtenstein, Romania, International Bar Association (IBA) and International Centre for Transitional Justice (ICTJ))

Overview by Elia Cernohlavkova, Research Associate PILPG NL

Highlights: 

• Hybrid tribunals and specialized chambers form an integral part of the principle of complementarity. The ultimate aim of such institutions is to provide justice for victims, whose needs shall be given due consideration. 

• Civil society plays a crucial role in meeting the needs of the victims as well as ensuring an effective administration of justice.

• To conform complementarity, states should support national initiatives for the adjudication of international crimes as a matter of priority. 

The Ambassador of Liechtenstein introduced this side event and underlined how hybrid tribunals and specialized chambers support the Rome Statute System. The Ambassador of Romania added that the mandate of the tribunals is to facilitate complementarity, in which interstate dialogue, civil society, and justice for victims play an important role. 

Following the introductions, the International Center for Transnational Justice (ICTJ) introduced its report on access to justice at hybrid tribunals, which will be published on the Organization’s website. The report provides an overview of national and international accountability mechanisms as well as the court system’s role in the fight against impunity. The aim of the report is to help practitioners understand the practice of running hybrid courts. It is therefore a technical and practical tool, which draws on the experiences of existing courts including the Special Tribunal for Lebanon or the Special Court for Sienna Leone. The report provides a timeline for creating a hybrid court and gives information on prosecutorial policies and strategies, the structure of tribunals, effective measures to provide redress to victims, and financing.

The International Bar Association (IBA) introduced a complementary report, dealing particularly with issues of fairness and equality of arms at the ICC. The report gives the ASP an opportunity to address and strengthen the processes. It discusses the right to representation and how the right shall be implemented to avoid abuse of victims. The report also elaborates on structures making legal representation possible for both the accused and victims. It proposes that the registrar or an independent defense office should provide support for defense and victims, as well as training and monitoring, which is now largely done by the civil society. Also, a clear framework for victims’ participation and reparations, which until now has been done in an ad hoc manner, shall be created in the future. 

The discussions then shifted to the panel, which consisted of Ms. Donlon (the Registrar of the Kosovo Specialist Chambers), Ms. Guzman (the Magistrate of Special Jurisdiction for Peace in Colombia), Mr. Haynes (Lead Council for victims at the Special Tribunal for Lebanon) and Ms. Kassande (the Head of Office of ICTJ, Uganda)

Ms. Donlon discussed the challenges of setting up a registry. According to her, the challenge lies in running processes in parallel. She mentioned that the following processes are particularly challenging: receiving a legal mandate and support thereof; setting up a provisional budget and organizing donors conferences; strengthening internal governance to increase trust into the organization and its financing, finding appropriate premises (including a maximum security detention area). 

Ms. Guzman then talked about the Peace Agreement in Colombia and its current national implementation. She mentioned that Colombia is implementing the Agreement on the background of being in preliminary examination by the ICC. Ms. Guzman underlined the difficulty of setting up a court in such a political and controversial environment. A Court implementing the Agreement was nevertheless successfully set up and is now in operation for more than ten months. It has jurisdiction over guerilla members and state armed forces. In line with the Peace Agreement, it grants conditional liberties and amnesties as long as no international crimes were committed. Out of the 700 requests for a conditional liberty, 200 were granted. Out of 400 amnesty requests, only two were successful.   

Mr. Haynes continued with the topic of victim participation and the issue of reparations. According to Haynes, reparations proceedings should be “divorced” from the conviction of the accused and should be dealt with as soon as a situation arises. Such a process would remove unnecessary technical difficulties, speed up the process, avoid disappointments of acquittal, compensate victims of all sides, and remove the pressure on the trial chamber to convict in weak cases. In case of an acquittal it would also not absolve the accused for paying reparations. Mr Haynes also advocated for the decrease of the number of participants in a trial to make a trial more efficient. Finally he elaborated on the need of taking victim participation more into account and defining the role of victims and a victims’ council better.

Lastly, Ms. Kassande talked about complementarity and the international crimes division in Uganda. Mentioning the Juba Peace Negotiations between the Lord Resistance Army (LRA) and Uganda, Ms. Kassande said that an important aspect of getting the LRA to the negotiating table was their curiosity on the form of accountability and the role of the ICC. According to Kassande, the Court dealing with the conflict in Uganda is a good example of challenges of the complementarity system. Kassande suggested that the biggest difficulty in adjudicating international crimes before the Court was which legal framework is applicable. The legal framework aspect proved difficult especially for crimes that happened in the 1980s when an international criminal law framework did not yet exist. Kassande also addressed the difficulty of aligning the prosecutions with the amnesties that were previously granted to facilitate peace. 

Side Events: 17th Assembly of States Parties | “The Initiative for a Multilateral Treaty for Mutual Legal Assistance and Extradition for Domestic Prosecution of the Most Serious International Crimes”

(co-hosted by Argentina, Belgium, Mongolia, the Netherlands, Senegal and Slovenia)

Overview by Emma Bakkum, Senior Research Associate PILPG NL

Highlights:

• The MLA initiative aims at filling the gap in the existing legal framework that addresses the prosecution of the most serious international crimes.

• The initiative enjoys the support from 60 states, which have expressed their support by signing a permanent declaration.

• Spain indicated its intention to sign the permanent declaration during the side event. 

• A draft treaty has been established and a second preparatory conference will be held from 11 to 14 March 2019. 

The core group of the MLA initiative (Argentina, Belgium, Mongolia, the Netherlands, Senegal and Slovenia) organized this side event to provide an update on the progress of the MLA initiative and the way forward. Mr. Marko Stucin (Slovenia) started the event by summarizing the history of the MLA-initiative. In 2011, Belgium, Slovenia, and the Netherlands saw a need to address the clear legal gap that hinders effective prosecution of international crimes. Inter-state cooperation is key to the domestic investigation and prosecution of international crimes: without an adequate international legal framework, the effectiveness of domestic prosecutions diminishes. However, the existing legal framework does not contain modern and sufficient provisions for mutual assistance and extradition. The Genocide Conventions is, for example, silent on measures of extradition. After the launch of the MLA initiative, Argentina, Senegal, and Mongolia joined the core group and as of now, the MLA initiative has support from 60 states. 

At the preparatory conference held in October 2017 in Doorn procedural aspects of the MLA-initiative were discussed. The participants for instance decided that the MLA-initiative would follow a stand-alone process outside the scope of the UN. The preparatory conference was also instrumental for the drafting of the treaty, that aims to attend to the needs of practitioners. While the preparatory conference did not always provide answers, none of the participants found that the treaty should apply to less crimes than incorporated in the Rome Statute and the participants were in favor of copy-pasting the definitions of crimes of the Rome Statute while allowing for broader definitions. 

Invitations for the second preparatory conference to be held from 11 to 14 March 2019 will be sent out soon. For this conference, input from co-sponsors is requested to redraft the preliminary treaty and the rules of procedures will be finalized.  

During the Q&A, a representative of Japan inquired into the reasons for pursuing the MLA-initiative outside the UN frame. Ms. Erica Lucera (Argentina) answered that during the preparatory conference in 2017 several reasons were discussed. Pursuing the treaty initiative within the UN framework would constitute more supporting states but also trigger the possibility to reach a text to the lowest level denominator. Moreover, a process within the UN can be more time consuming as several steps needs to be fulfilled first. Ms. Lucera added that this does not mean however, that the MLA-initiative is not looking forward to engage with the UN. A second comment came from a representative of Spain, who, after stating that the MLA-initiative represents a commitment to the rule of law and is a contribution to peace and security, proudly announced to join the initiative as a supporter. Austria, preferring to see both projects come together, mentioned the overlap of the MLA-initiative with the work of the UN International Law Commission on articles on crimes against humanity.

Finally, several NGOs had some remarks. Justice Rapid Response asked how the treaty addresses different perceptions of jurisdiction of states. The answer to this question included that the draft treaty does not oblige any state to use universal jurisdiction. It does however require agreement on the definition of the criminal offenses. Amnesty International (AI) and Parliamentarians for Global Action (PGA) stressed the importance of human rights safeguards and justice for victims. Both NGOs will continue to push for the inclusion of broader definitions and expanding the crimes included. AI highlighted certain issues with the Rome Statute definitions, such as the age of child soldiers. AI moreover emphasized their concern with the provisions on amnesty and pardons, and stated that reasons to refuse cooperation included in the draft treaty may go too far. 

Second Plenary Meeting of the ASP17

Overview by Filipe Dias Costa and Juan Manuel Martinez Rojas, Research Associates PILPG NL

Highlights:

• The EU gave a joint statement through Austria supporting the ongoing investigation in Myanmar/Bangladesh concerning the Rohingya and the situation in Syria.

• Palestine indirectly denounced the U.S. approach towards the Court and determined the Prosecutor’s situation on Palestine as a test for the Court’s impartiality from external factors.

During the second plenary meeting of the 17thAssembly of States Parties on 5 December 2018, 26 States Parties to the Rome Statute issued their statements. A common aspect found in nearly all statements was the commendation of complementarity and cooperation as the cornerstones of the international criminal legal system. In parallel, most states also urged the Court’s role to combat impunity and ensure proper accountability for atrocities.  A shared critique found in the statement of the EU and in other European states was the necessity to enhance the role of victim participation and to ensure their proper reparation in future and ongoing cases. 

Palestine and Georgia reinforced their pleas on the ongoing work of the Office of the Prosecutor in their respective open situations. More energic, Palestine negatively noted the lapse of time since the beginning of the investigations and urged for future developments on the matter. 

Several statements, including from Austria, the Czech Republic, Sweden, Liechtenstein, Slovakia, and France called for further developments in the investigations concerning the Rohingya in Myanmar and Bangladesh and the situation in Syria and urged the Office of the Prosecutor to continue its work in these matters in order for them to be fledged out as concrete cases.

States Parties also urged for the need for an ongoing development of gender and geographical equality on the staff of the ICC as a mechanism to more adequately reflect the diversity of the States Parties and their different legal cultures. 

African states reinforced their utmost support of the ICC and its importance in their legal systems. In this sense, Gambia invited the ICC to conduct more activities in Africa inasmuch as Africa needs the ICC as the ICC needs Africa. Nigeria defended the inclusion of transnational corruption as a crime under the ICC’s jurisdiction insofar it may cause more death and destruction than the crimes already prescribed in the Statute. South Africa asked for more clarity with regard to the scope of UN Security Council referral resolutions.

The states reflected upon the developments that took place in the year of 2018 for the ICC by lamenting the withdrawal of the Philippines from the Rome Statute and by remarking the achievement on the activation of the Court jurisdiction over the crime of aggression.

Many states reiterated the importance of victim participation and reparation and lauded the work of the TFV. Germany announced to donate 300.000 EUR to the TFV, while the Czech Republic pledged to donate 20.000 EUR. Also Slovakia and Ireland stated that a donation to the TFV is coming. 

Several states praised the 2019 budget proposal due to its increased transparency.  Nonetheless, it was remarked that the standards used to achieve such results are still insufficient and a more thorough approach should be applied in future discussions. 

Regardless, the vast majority of the states commemorated the 20thanniversary of the Rome Statute and considered this landmark as an important development in combatting impunity, albeit calling for changes in the ICC in order to more efficiently fulfil its core role and values. Many states see the 20thanniversary of the Rome Statute as an opportunity to reflect upon achievements and challenges of the ICC.

Finally, the meeting was suspended after Ecuador’s statement due to time constraints and the general debate will continue during the 3rdplenary meeting on Thursday 6 December.

First Plenary Meeting of the ASP17

Overview by Phedra Neel, Research Associate PILPG NL

Highlights:

• Highlights were the speeches of the ASP President, judge O-Gon Kwon, the ICC president judge Chile Eboe-Osuji, Chief Prosecutor Fatou Bensouda, and Chair of the Board of Directors of the TFV, Motoo Noguchi. 

• The Chief Prosecutor Fatou Bensouda announced to publish her preliminary examinations report for 2018 later this day.

• Ambassador Jens-Otto Horslund from Denmark is elected as new ASP Vice-President and the states parties elected eight members to the Advisory Committee on Nominations and five members to the Board of the TFV.

After a moment of silence in remembrance of Kofi Annan, the President of the Assembly of States Parties, judge O-Gon Kwon of South Korea opened the 17thASP with a speech that expressed hope in the many achievements in the fight against impunity but also underlined the challenges the Court faces. His speech set the tone and touched upon topics that would be repeated by the other speeches. The main focus was the challenges the Court is facing today while reiterating that the fight against impunity must continue as it is the last beacon of hope for the victims of mass atrocity. In order to do so, according to the president, non-State Parties must be urged to ratify the Rome Statute and be supported in implementing the right legislation to prosecute on a domestic level. Only in this way can the principle of complementarity be upheld and the universality of the Rome Statute promoted.

President O-Gon Kwon continued by stating that there have been many successes in the fight against impunity. But he also referred to the challenges that must be faced together. In this light, he stated that it is unfortunate that major states have not yet ratified the Rome Statute, leaving some regions underrepresented. The president has made universality of the Statute one of the main priorities of his presidency and asked all present to help achieve this cause. The recent withdrawals are most unfortunate as they send a wrong signal. It is therefore important to keep underlying the importance of a ratification and the advantages ratification can have for states. Becoming a State Party sends a strong signal to the world and to the victims of mass atrocities. It must be explained that such a ratification is not a danger for that state’s sovereignty thanks to the principle of complementarity. 

The president continued by underlining that the principle of complementarity lies at the heart of the jurisdiction of the ICC, yet he noted that only half of all States Parties have the necessary legislation in place to carry out the primary responsibility to investigate and prosecute international crimes. Therefore it remains important to support these states in adopting such legislation.

While thanking all those who helped and raised awareness that fully cooperating with the ICC entails more than gathering evidence, arresting and extraditing accused, ASP president O-Gon Kwon stressed the need for better cooperation between the States Parties and the ICC. He stated that due to the inaction of certain states, ICC indictees remain at large. Not abiding the legal obligation to cooperate with the Court can affect the possibility for the Court to effectively execute its mandate and will turn decisions of the Court empty words. Moving on, the president underlined the role of the Trust Fund for Victims and the importance to give victims a voice.  

After encouraging introspection, review, and reflection and underlining the need for diplomatic, political, and financial assistance (“The time to act is now”), the President adopted the agenda for the 17thASP.   

His speech was followed by the president of the ICC, judge Chile Eboe-Osuji of Nigeria. After his words of thanks (in French), Mr. Eboe-Osuji referred to a speech made by the Nigerian President earlier this year in which he declared and pledged that: “In this dangerous world, the ICC is an institution needed in a way that could not have been foreseen by its founders. I will ensure that the next elections in Nigeria will be of a peaceful nature.”

Noteworthy is that Mr. Eboe-Osuiji welcomed criticism of the Court. He stated that we should not demonize those critiquing the Court as these voices force us to reflect on what we can do to make life more just. However, the ICC was founded to be a court of law, meaning that its judgements may be inconvenient. A court of law is ordered to check and balance the state power and a good judge will sometimes render inconvenient judgements, as was shown in the Bemba acquittal. It is not up to the ICC to convict someone simply because he has been found guilty by the public opinion; it is up to the Court to establish a fair process in which the accused has a fair chance to be acquitted. The ICC president therefore urged all present to not raise expectations in the minds of victims simply because the “perpetrator has to be punished for such bad crimes.” 

The ICC president furthermore focused on the principle of equality of arms between the prosecution and defense and how the integration of the Office of the Prosecutor as an organ of the Court contributes to that. Lastly, he focused on resources, expressing that money reserved for justice is but a small investment in the greater scheme and a lucrative investment. After stating that the Trust Fund for Victims is in an everlasting need for more recourses, the ICC president announced that he will make a personal contribution to the Fund.

Thirdly, ICC Prosecutor Fatou Bensouda’s speech did not contain any real surprises. Bensouda explained that there have been both successes and obstacles along the path, but that the Office of the Prosecutor remains ever so faithful to the mission and putting the victims in the center of their actions. Bensouda then talked about the Preliminary Examinations and mentioned that the OTP will publish its preliminary examination report for 2018 later today, followed by a launch during a side event on Monday 10 December. She furthermore stressed that it needs courage and sacrifices from millions to adopt a multinational document, but these efforts are lost when we remain inactive and silent. Finally, she underlined the need for arrest warrants to be executed. “Working to achieve a system of accountability is not a sprint, it is a marathon!”, she added. 

Lastly, Mr. Motoo Noguchi, departing Board Chair of the Trust Fund for Victims, focused on the functions and aim of the Trust Fund, reiterating the importance of its assistance mandate, of which new programs are in the developmental stage. Even though the numbers of donors have increased, the Trust Fund’s workload has increased to the extent that they are no longer able to guarantee reparations for all victims and the demand will only keep increasing. In this context, he reiterated how the Board feels a moral obligation to make reparative justice a reality for victims. The Fund however is facing two challenges: implementation capacity and financial resources. Noguchi underlined the need to make reparations proceedings simple, fast, and cost effective in order to provide meaningful redress for victims. The effectiveness of the reparation proceedings will likely affect the receiving of donations.  He finally stated that a sound balance between the legal and technical precision and the reality of victims in the most dire situations in the field must be sought.  

Further items on the agenda for the first plenary meeting included the election of a Vice-President since Momar Diop (Senegal) resigned effective of 19 March 2018 (the new VP is Ambassador Jens-Otto Horslund from Denmark) and of a Bureau member (Bangladesh), States in arrears (13 as of Jan. 1, 2019), Credentials of representatives of States at the seventeenth session: (a) Appointment of the Credentials Committee; and (b) Report of the Credentials Committee, Organization of work, Election of the members of the Board of Directors of the Trust Fund for Victims (were appointed: Belal Sheikh Mohammed from Bangladesh, Helić Arminka from the United Kingdom, Koite Doumbia Mama from Mali, Lordkipanidze Gocha from Georgia, and Michelini Felipe from Uruguay), Election of the members of the Advisory Committee on the Nomination of judges (were appointed: Barrak Binhamad Ahmad Mohammad from State of Palestine, Bîrsan Corneliu from Romania, Cotte Bruno from France, Fulford Adrian from the United Kingdom, Kambuni Lucy Muthoni from Kenya, Monageng Sanji Mmasenono from Botswana, Rodríguez Veltzé Enrique Eduardo from Bolivia and Steiner Sylvia Helena de Figueiredo from Brazi). All proposals were accepted by consensus.

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

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

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

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

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

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

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

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

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

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

Takeaways:

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