Third Plenary Meeting of the ASP17 - Day 2

Overview by Eszter Boldis, Research Associate PILPG NL

Highlights: 

• States called for the adoption of the Kampala Amendments and an overall increase in cooperation with the Court (including compliance with arrest warrants and adoption of domestic statutes).

• The Philippines confirmed their withdrawal from the Rome Statute.

• Switzerland asked the extension of criminalization of forced starvation to NIACs as well.

During the 3rdplenary meeting of the 17thAssembly of States Parties on 6 December 2018 the general debate continued. Most states remarked that the 20thanniversary of the Rome Statute was a time for reflection on the growth of international criminal justice and the fight against impunity, but also a time to look at the ICC with a critical lens and see how the system can be further improved. 

A heralded victory was the adoption of the resolution providing for the activation of jurisdiction of the Court over the crime of aggression at the last session of the ASP. Those countries that have ratified the Kampala amendments stated that they have done so, and urged others to follow in their footsteps. Other criticisms included the lack of effort on the part of some states in regard to complementarity and cooperation. Common suggestions to remedy these weaknesses were the adoption of domestic laws to give proper effect to the Rome Statute and compliance with the 15 outstanding arrest warrants, respectively. 

Many countries also thanked ICC Prosecutor, Fatou Bensouda, for her continued efforts and achievements and noted that in 2020, it will be time to elect a new prosecutor to take over her important work once she finishes her 9-year term in 2021. These countries called for transparency in the selection process to ensure the selection of the most suitable candidates 

Notably, the Philippines confirmed its intent to withdraw from the Rome Statute, which had been announced in March 2018, and in light of the withdrawal, will not be attending deliberations during the present ASP. The withdrawal is due to concerns over the politization of human rights and the work of the Court and a belief that its domestic legislation can punish international crimes and its institutions can properly ensure justice.

Many states (including Uruguay and Slovenia) lauded the work done by the Trust Fund for Victims, noted their own contributions, and asked other states to contribute as well. Japan announced to contribute 52,000 EUR to the TFV. 

All EU countries (Malta, Hungary, Slovenia, Greece, Malta, Estonia, Cyprus, Romania, Poland, Bulgaria, and Portugal) speaking in the 3rdPlenary aligned themselves with the Austria’s statement on the behalf of the EU. Hungary, Greece, Poland, and Chile identified the important role of the Un Security Council in ensuring the proper functioning of the ICC and called for the financial, legal, and political support of the UNSC. Hungary specifically asked the UNSC to revisit the resolution for the referral of Syria and suggested that in the cases like Syria, where a resolution is aimed at stopping an ongoing conflict, vetoes should not be exercised. Switzerland proposed an amendment pertaining to the inclusion of forced starvation under war crimes in non-international armed conflicts, not just international armed conflicts. 

The budget increase was a point of controversy. Some states objected to the increase and asked for the Court to improve its efficiency in order to make better use of funds. Other states defended the increase, stating that the budget is proportional to the Court’s activities and if the activities increase, there would also be an expected increase in the budget. However, even states that support the increase have identified the length of trials as a source of unnecessary expenditure and called for more speedy procedures. Canada, specifically, asked for the development of an exit strategy for closing preliminary examinations which would not lead to case.

Side Events: 17th Assembly of State Parties | "Victims' Participation in ICC Proceedings: Examining the Role of Counsel”

(co-hosted by Chile, the International Federation for Human Rights (FIDH), Open Society Initiative for Eastern Africa, Trust Africa and Victim’s Support Initiative)) 

Overview by Kathryn Gooding Research Associate PILPG NL

Highlights: 

• Counsel emphasized the importance of victim participation in international criminal proceedings, as it adds an air of legitimacy to court proceedings. 

• Counsel also noted the importance of participation for the victims themselves, as they often find comfort and gain healing through recounting their experiences. 

• However, Counsel reiterated the need to manage the expectations of victims and the expert report emphasised the need to ensure that victims have access to services that can ensure healing.

This event focused on the importance of counsel in ensuring the participation of victims in ICC proceedings. The panel included the legal representatives of the victims for the Ongwencase, Joseph Akwenya Manoba and Francisco Cox. They were joined by an expert in the Ongwencase, Teddy Atim, who wrote a report for the court entitled “The Effect of the Lord’s Resistance Army’s Violence on Victims from Northern Uganda in Prosecutor v Dominic Ongwen”. 

The Counsel emphasised the central role of victims in the prosecution of international crimes. Participation of victims in the ICC system is provided under Article 63 of the Rome Statute, which grants victims respect and gives them a sense of justice. Victim participation also has an important value to trial proceedings, increasing the legitimacy of the trial. Counsel play an essential role as the victim’s representatives. 

Joseph Manoba explored how counsel try to facilitate the evidence-extracting process, by creating conducive conditions for the victims in which they can tell the counsel of their experiences. To try and make it easier for the victims, the counsel hold one on one discussions with clients, and this helps victims to more meaningfully engage with the trial and help them understand how important their role is in the trial. Manoba also noted that many of the victims are former child solders, having suffered sexual and gender-based violence, and the victims have found that often the discussions have a healing quality. Therefore, Manoba emphasizes how the one on one meetings are both very helpful for counsel, but also very helpful for victims. 

However, Manoba noted that legal representatives for the victims cannot provide counselling services to the victims, and that they do not have the monetary resources to do so. Manoba emphasizes the difficulties in having to use their own skills to manage situations where victims become emotional, or suffer from recounting memories. 

Francisco Cox explores some of the challenges that legal representatives for the victims suffer from. He notes that there is a time-limit in which victims can come forward and apply to be represented, and this means that many people are not represented as victims. He emphasised how it is the role of the legal representatives for the victims to focus on issues not focused on by the prosecution, to ensure that the victims can gain satisfaction and healing through participation in the court process. 

Teddy Atim explained the main issues surrounding the report she wrote for the Ongwen case. She explained that she needed the study to be representative of the population of Northern Uganda and ensure that there was sufficient representation of victims in the study. The aim of her report was to find the impact of the alleged crimes on the people of Northern Uganda. She aimed to assess the physical health, psychological well-being, access to education, access to health services, food security, and access to water of victims, and how these had been affected by the crimes that they had suffered. 

In her report, she found that psycho-social well-being was what came out strongly in the report. Women were more likely to have worse psychosocial well-being because they suffered more of the violence proportionately. People who suffered more than five war crimes or more were found to more severely suffer from issues surrounding psycho-social well-being, finding that there were compounding effects over time on the psychological state of mind of particularly women. 

She underlined how victims require specialised treatment, particularly in the context of sexual crimes, however this type of treatment has not been available to the victims in Uganda. They require treatment, but they have no access to treatment. This lack of access has implications for well-being in the future, and also means that war crimes often have inter-generational impacts, as children suffer from precarious food security and lack of education in affected households, as the lack of treatment means that healing cannot take place. Atim emphasises the need for psycho-social services, which are truly lacking in Northern Uganda, as well as specialist care for children returning from war. 

A number of questions were put to the panel. One question addressed how counsel prevent unduly raising victims’ expectations, and Joseph Manoba responded to this by explaining that counsel make it very clear from the outset what victims can expect from the court. They go to the communities themselves and explain court processes to the victims and explain what the court can and cannot do for them. Counsel emphasise to the victims that there cannot be any reparations until conviction, and that even upon conviction, reparations may be limited. Francisco Cox noted that often they have to explain to communities that it is possible that Ongwen may be acquitted, and they have to prepare for this. 

Another question queried how it is possible to ensure the participation of victims in preliminary situations. Francisco Cox noted how the counsel has very little experience in this particular scenario, however they would ensure that victims are organised to gather information from them. However, he emphasised that when gathering information from victims, it is important to collect information in relation to a particular individual, who could potentially be held criminally responsible, rather than against the state as would happen with human rights litigation.

Side Event: 17th Assembly of State Parties | “Challenges and opportunities for the Universality of the Rome Statute system” (co-hosted by the Netherlands and Parliamentarians for Global Action (PGA)))

Overview by Phedra Neel, Research Associate PILPG NL

Highlights: 

• This event consisted of several representatives of the region in question and how and why their state became a State Party or why it did not and the challenges it faced during this process.

• A highlight was the positive atmosphere in the room and the belief that any possible challenges can and should be overcome. The speech given by Mr. Kwoo was positive despite Malaysia deciding to suspend its efforts for ratification. The statement from Mr. Licht that the remaining 8 island states are open for discussions on ratification raised hope for improvement in the future.

• A personal highlight was the debate on whether or not Muslim majority states (being under Sharia law or not) can become a State Party. Sharia law does not stand in the way of ratification as the Prophet teaches equality and that is exactly what the ICC aims to achieve: equality through the rule of law.

The Asian region represents 60 percent of the world population but is the region with the least ratifications. Of all the ASEAN states, only two have ratified the Rome Statute. 

Mr. Paul van den Ijssel, Permanent Representative of the Kingdom of the Netherlands to the Organisation for the Prohibition of Chemical Weapons explained that he has been working hard, together with South-Korea to engage in a dialogue in these countries. There is a growing interest, as is shown by Malaysia’s declaration to join and by the number of states referring to the principle in their opening speeches. Mr. van den Ijssel stressed that to promote universality, we must trust in the Court and the civil society. 

Mr. Yun Young Lee, Ambassador of the Republic of Korea to the Netherlands stressed the need and the importance of universality for the Court to effectively execute its work and the important task of working together to improve the opinion of the public on the ICC.

Mr. O-Gon Kwon, President of the Assembly of State Parties to the Rome Statute of the ICC explained that the hesitance of Asian states to join or the urge to withdraw from the ICC stems from four misperceptions: that the ICC would have retroactive jurisdiction, that it is a violation of a state’s sovereignty, that a monarchy cannot join and that a withdrawal can stop ongoing investigations or proceedings.  He further explained that there are also political considerations. Some states prioritize human rights, others economic development or environmental issues. 

Mr. John Licht, Ambassador of Vanuatu to the EU stressed that Vanuatu is a small island state in the Pacific and that being a member of the ICC family is a wise step to prevent any atrocities from happening. Only eight out of 16 of the island states are currently a State Party. The others are also interested but have practical concerns such as the costs attached to ratification. 

Sheik Mohammed Belal from Bangladesh was very happy that his state has ratified the Rome Statute. The ratification was a response to the bloody war of 1971 which cost numerous lives and the wish to prevent the younger generation from a similar suffering. Now, they are happy that through their ratification, the Rohingya people get a chance of justice, while he regrets that the young generation is being confronted with international crimes yet again. 

Andrew Khoo, member of the Human Rights Committee Malaysia, was sad to announce that his government is pausing their efforts to ratify the Statute. This was put down to a battle between nationalistic feelings versus internationalism. However, Mr. Khoo noted that he believes that these feelings will last for a while and that the government must find to courage to push through. This hope for ratification is not idle as Malaysia has shown itself to be supportive of the ICC when asking the UNSC to refer the case of the Rohingya and an attack on Gaza to the ICC (while not being a State Party themselves). Furthermore, there is a belief that if the downing of MH17 would have been referred, more progress would have been made than now.

Following the statements from the panel members, a member of the Iranian delegation asked for their experiences with adopting the Statute while respecting Sharia law. Sheik Belal explained that this has never been an issue in his country as the teachings of the Prophet are in line with the aim of the ICC which is to install equality. 

The closing remarks by Dr. David Donat Cattin stressed that the ICC is an international court not a supranational court. He eloquently noted that “we can put together some actions and assist the states that do want to join. It is not an easy job to fight for the rule of law, but we don’t want the law of the jungle and we are not lions.”

Side Events: 17th Assembly of State Parties | Investigating and Prosecuting for Sexual and Gender Based Crimes at the ICC and Beyond

(co-hosted by Canada and the International Federation for Human Rights (FIDH))

Overview by Eszter Boldis, Research Associate PILPG NL

Highlights: 

• Even though the Rome Statute includes a wide scope of sexual and gender based crimes to date, there are continued issues in the prosecutions of such crimes, including the difficulties in investigating the crimes and the risks to re-traumatization of victims.

• Some of these issues could possibly be addressed in the future Crimes against Humanity Convention while others would involve continued outreach to victims and collaboration with civil society.

During this side event on the investigating and prosecuting of sexual and gender based crimes, Amal Nassar, Permanent Representative of the FIDH to the ICC, moderated the panel which included, among others, the Ambassador of Canada, representatives of the Office of the Prosecutor (OTP), and members of civil society.

Ms. Sabine Nolke, Canada’s Ambassador to the Netherlands, remarked that rape, sexual slavery, and forced marriage are still used as a tool in the context of armed conflict and crimes against humanity. These crimes have a long-term impact on communities, yet the crimes are often invisible because victims are silenced by shame and social pressures. Furthermore, unlike some other crimes, it is also difficult to have evidence on these crimes since there are no ‘satellite pictures’ documenting these crimes. Thus, the evidence is rendered only available by the testimonies of victims. Ms. Nolke, along with the other panelists, agrees that the Rome Statute, which encompasses the widest range of sexual violence and gender based crimes to date, is a large step in recognizing and prosecuting these crimes. Yet, the achievements of the Rome Statute should not be seen as an endpoint. 

As part of the event, FIDH launched a report on Investigating and Prosecuting for Sexual and Gender Based Crimes at the ICC and Beyond. This report is a result of a series of semi structured interviews of 42 practitioners and experts from five different continents. Each interview roughly addresses the following question: What are the challenges to investigating and prosecuting sexual violence and gender-based crimes and what progress has been made? Some of the recommendations of the report include further engagement with victims and civil society stakeholders.

There have been various recent developments in the prosecution of sexual violence and gender based crimes. In her 2016 Policy Paper, ICC Prosecutor, Fatou Bensouda, identified these crimes as an important focus for the OTP, stating “The victims of such devastating crimes will not find solace in our words and promises, but in what we manage to deliver in concrete terms.” Inthe past month, the Extraordinary Chamber in the Court of Cambodia convicted two former leaders of the Khmer Rouge of forced marriage. However, there are some continuing difficulties and setbacks. The Bemba acquittal of June 2018 was a setback for victims of sexual violence who participated in the proceedings for the past seven years. In the light of recent events, the availability of reparations for these victims is unlikely. Furthermore, in the Kenyatta case, forced circumcision has been reclassified as other inhumane acts from the initial classification of sexual and gender based offences. According to James Stewart, Deputy Prosecutor at the ICC, this reclassification was an error due to the misunderstanding of culture of the victim, in which circumcision is not usually practiced and is seen as degrading. To this date, although some offenders were charged with sexual crimes, there has been no conviction of sexual and gender based crimes at the ICC.

Patricia Sellers, Special Advisor to the Prosecutor on Gender, identified several “cracks” in the Rome Statute. The most important of these is the lack of inclusion and criminalization of slave trading as a crime against humanity. Furthermore, the Rome Statute does not include slavery and slave trading (as identified in Additional Protocol II) under war crimes. Sellers suggests the inclusion of slave trading in upcoming Crimes Against Humanity Convention and the deletion of sexual slavery as a separate crime, as it is synonymous or coupled with the crime of enslavement.

Side Events: 17th Assembly of States Parties | “Commemorating the 20th anniversary of the Rome Statute”

(co-hosted by the Netherlands, Uganda and Africa Legal Aid)

Overview by Vicki Tien, Research Associate PILPG NL

Highlights: 

• The side event focused on the discussion regarding the challenges facing the ICC, particularly the ICC’s legitimacy, and the measures to counter these problems.

• The panel speakers all acknowledged the important role of the ICC in the past 20 years but agreed that it is necessary to address the perception issue and take action to change it. 

This side event, commemorating the 20thanniversary of the Rome Statute, resolved around the problem of the ICC’s legitimacy and the lessons learned from 20 years of the Rome Statute. Panel speakers, such as Judge Geoffrey Henderson, argued that the biggest challenge that the ICC has been facing in the past twenty years is the inaccurate perception of the Court from the public. Judge Prost believes that the wrong perception of the Court resulted from the issue of complementarity, which, according to her, has not received enough attention since 1998. She urged everyone to remember that the ICC is based on the complementarity principle, which reflects that core international crimes are preferably investigated and prosecuted in the country where they occurred. She further stressed that the duty of the Court is to motivate the states to take on their responsibilities when an atrocity crime takes place in their own country, and that the Court only has the role to play when the local courts are unable to do the job. The panel speakers believe that many hold a false perception of the ICC and see it as the single authority that can prosecute atrocity crimes. The panel speakers agreed that it is necessary to take action to change this perception.

Regarding the complementarity principle, Judge Prost stated that the ICC is currently facing two problems: capacity building and states’ lack of willingness. She first pointed out the problem that many local courts lack the capacity to prosecute mass atrocity crimes and she thereby highlighted the importance of capacity building through strengthening legal frameworks and training of legal personnel in domestic courts. She stressed that such capacity building efforts require international cooperation. The second problem, concerning the lack of willingness of states, affects the effectiveness of the Court as the Court does not have universal jurisdiction.

In addition to the discussion resolving around the false perception of the Court, the panel speakers briefly discussed the gender balance issue within the Court. One panel speaker stressed that there should be 50/50 gender ratio in the judicial offices in the Court. Currently, the proportion of active female judges in the ICC is 33%.

The audience raised a question about the effectiveness of the complementarity principle as domestic courts in some countries, such as the Central African Republic, have limited capacity and still practice the death penalty. Judge Prost responded that the ICC can be the driving force to improve the personnel training in domestic legal institutions.