ICC

Side Event – “Global Civil Society and European States: Advancing international justice in the 20 years to come”

(co-hosted by Austria as Presidency of the Council of the European Union and Coalition for the International Criminal Court (CICC))

Overview by Vicki Tien, Research Associate PILPG NL

Highlights:

  • The image of the Court is considered one of the key challenges that the ICC faces. The Panelists and audience focused on misinformation and misinterpretation of the Court and the measures to solve it.  

  • The Participants emphasized the need to defend the Court whenever it faces attacks. 

This side event, co-hosted by the Austrian Presidency of the Council of the European Union and the Coalition for the International criminal Court (CICC), aimed to discuss the role that the European States and global civil society can play in response to the current challenges that the ICC faces. 

Moderated by Konrad Bühler (the Austrian Presidency of the Council of the European Union) and Virginie Amato (CICC), Mr Bühler first addressed the problems that the Court faces, particularly the issue of misinformation and misinterpretation of ICC, and he asked the audience a key question: “what is the public image of the Court?”

The floor was then opened to the panelists. The first speaker focused on the importance of gaining support toward the ICC from the general public and encouraged the member states to train media and journalists about criminal justice in order to provide accurate information on the Court to the public. The second panelist from the Ukrainian Legal Advisor Group also addressed the issue of misinformation about the Court. The third panelist, from the U.S., discussed the attack launched against the ICC by the Trump administration and claimed that the level of such attacks was unprecedented in U.S. history. The panelist urged to counter misinformation and hostility against the ICC. The fourth panelist from the Georgian Coalition for the ICC discussed the challenges in the context of the ongoing investigation in Georgia, such as the fact that the Court has no access to the Georgian territory that is currently occupied by Russia and the importance of outreach to the general public in Georgia about the work of the ICC. The panelist stressed that human rights are violated on an ongoing basis in Georgia and called upon other states to pressure Russia. The panelist also urged to increase funding for the Trust Fund for Victims. 

When the floor was given to the audience, a Romanian ambassador first emphasized the importance of global outreach in all states to educate the general public about the mandate of the ICC and thereby solve the problem of misinformation about the Court. The ambassador urged to counter the attacks against the Court with substantive arguments and a simple, clear language. The second comment from the audience, from a legal advisor at the UN, touched upon the issue regarding the attacks against the Court and called upon everyone to defend the Court through a focus on the positive outcomes of the ICC. The third comment came from an ambassador from Latvia and she also touched upon the problem of misinformation about the Court. 

Ninth Plenary Meeting: Progress report by the Coordinators & Introduction of Draft Resolutions

Overview by Filipe Gomes Dias Costa, Research Associate PILPG NL

During the 9thplenary meeting of the 17thAssembly of States Parties on 10 December 2018 the (co-)facilitators of various Working Groups gave their updates concerning relevant developments.

For the working group on budget, consensus was not yet reached on outstanding matters before the then upcoming working session this early afternoon. The Chair, H.E. Jens-Otto Horslund (Denmark) underscored the role that informal negotiations may play in solving the current deadlock.

Similarly, the facilitator of the omnibus resolution highlighted the lack of consensus hitherto regarding paragraphs outstanding. Consensus is expected to be reached by the afternoon after closer negotiations with key States Parties.

The credentials committee forwarded its interim report on the accreditation for the ASP in order to reach its conclusion in the following sessions. 

Representatives of States Parties publicized draft resolutions before the ASP. The co-facilitators for the working group on cooperation, France and Senegal, submitted a draft resolution on cooperation, taking note of the importance of civil society participation within the Court and commending the role played by expert witness. This resolution has reached consensus in its working group. Facilitator of the working group on amendments, Mexico, submitted a draft resolution proposing amendments to Article 26 of the Rome Statute in order to align the Rules of Procedure and Evidence of the Court with the mandate of the Independent Oversight Mechanism concerning the receipt and admissibility of complaints by the IOM. This draft also possesses consensus within its working group. Lastly, the facilitator for the resolution on the remuneration of judges, Ecuador, submitted a draft resolution on the revision of judges’ remuneration, remarking the existence of consensus in the matter after eight meetings of the working group. 

Eight Plenary Meeting: Consideration of the Budget and the Audit Reports

Overview by Kathryn Gooding, Research Associate PILPG NL

Highlights: 

  • The Court emphasized its desire to balance the need to save money, with the need to ensure that the Court is effective in delivering its mandate. 

  • A major concern for the Court is the number of States Parties in arrears.

The 8th plenary meeting of the 17thAssembly of States Parties concerned the proposed budget of the ICC for 2019. The Registrar ofthe ICC, Peter Lewis, emphasized that the ICC understands that many states have undergone budgetary cuts and that their ability to contribute to the Budget is increasingly limited. However, he noted that the ICC was given a mandate by States Parties, and to be able to effectively carry out its mandate, the Court must have a sufficient budget to be effective. 

The Registrar noted that the ICC aims to reduce costs and enhance its efficiency, by improving its responsiveness and flexibility. The proposed budget for 2019 is claimed to be an important step in that direction. Peter Lewis noted that it is the lowest budget in years, as the ICC was able to identify means to reduce costs. However, he emphasized that the Court’s ability to reduce additional costs depends on the volume of work it is dealing with, and this must be considered in light of the fact that the Court is operating in 11 situations, and that there are hearings in three trials. Therefore, Peter Lewis argued that the Court needs resources to deliver its essential mandate, but that the Court also needs to strive for disciplined and efficient organization. 

The Chair of the Committee on Budget and Finance (CBF), Hitoshi Kozaki, put forward that the Court proposes a programme budget of €147,55 million for 2019, which represents an increase of 2.6 per cent compared to the 2018 budget. Kozaki noted his concern regarding the status of contributions to the budget. He was concerned that there are a number of outstanding contributions to the budget, totaling €19.2 million.   

The meeting continued with a consideration by the Auditor of the audit reports of the financial statements of the ICC, the financial statements of the Trust Fund for Victims, and the management of the Court’s human resources. The external auditor noted that the financial statements were a faithful reflection of the Court and the TFV. The main expenditure of the Court was found to have been staff costs, which increased by 6.4 percent compared to 2018. The Auditor mirrored the concerns of Kozaki that there are major threats to the cash flow of the Court due to the outstanding contributions of some States Parties. He therefore recommended the ICC to strengthen the means of recovering arrears. The Auditor, finally, with regard to the Court’s management of human resources, noted recent successes in gender parity and geographical representation within the Court and referred to the ten detailed recommendations to the Court with regard to human resources. 

Side Event –“Commemorating 20 years of the ICC in Africa through cartoons” (co-hosted by the United Kingdom and Journalist for Justice))

Overview by Sally Eshun, Intern PILPG NL

The renowned and award-winning Kenyan cartoonist Godfrey Mwampembwa presented his work during this side event entitled “Commemorating 20 years of the ICC in Africa through cartoons” and explained to the attendees the current state of artists doing editorial cartoons in Kenya and East Africa as a whole. He explained that they are exposed to verbal abuse, threats and self-censoring by their editors. Particularly, the critique of the ICC having Situations in mainly African countries is being tackled in the cartoons but also the influence the ICC has on domestic politics in countries like Kenya, the Central African Republic, or Côte d’Ivoire. Mr. Mwampembwa noted his appreciation of how editorial cartoons can initiate discussions around issues in a way that other means of media cannot, particularly with an issue that is so multi-faceted like the ICC and its relationship with African countries.    

Side Event –“From Impunity to Accountability? A New Transitional Justice Policy for Mexico

(co-hosted by Centro Diocesano de Derechos Humanos “Fray Juan de Larios”, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, Familias Unidas en la Búsqueda y Localización de Personas Desaparecidas - Piedras Negras/Coahuila, Fundación para la Justicia y el Estado Democrático de Derecho, I(dh)eas - Litigio Estratégico en Derechos Humanos, Instituto Mexicano de Derechos Humanos y Democracia, and Open Society Justice Initiative)  

Overview by Abby Roberts, Research Associate PILPG NL

Main Highlights: 

  • Mexico is a unique case with regards to transitional justice as it is neither a strictly post-authoritarian situation nor a post-conflict situation. 

  • The new government of Mexico has expressed a commitment to pursuing transitional justice, but it will require the support of the international community as a whole.

Descriptive Summary of the Event: 

This panel was moderated by James Goldston - Executive Director of the Open Society Justice Initiative.  The panelists were José Antonio Guevara - Executive Director of the Mexican Commission for the Defense and Promotion of Human Rights, Deborah Ruiz Verduzco - Head of Civil Society Initiatives for the International Commission on Missing Persons, and Pablo De Greiff - United Nations Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence.

The discussion began with Deborah Ruiz Verduzco providing the historical context for the violence currently occurring in Mexico. She noted that Mexico was under a one-party rule for many decades with no space for opposite or civil society, a weak judicial system, and military control of the country. These circumstances resulted in many high-profile atrocities and have provided for the strengthening of organized crime and violence. After the transition of there were promises regarding peace that were not completely fulfilled.  However, there have been progressive reforms for human rights with the transition, especially relinquishing the hold the military has on the country and allowing more room for civil society.  Between 2006 and 2015, in two administrations, there were 150,000 killings related to organized crime after the Mexican government decided to have a confrontation with certain groups in organized crime which gave a carte blanche to the military and police.  There were also a multitude of extrajudicial killings, which generally are not recorded.  As of April 2018, there are 38,414 people on the Official Registry of the Disappeared. These numbers do not take into account the 150,000 kidnappings that have occurred or any human trafficking victims. As torture is being used as an ordinary method of criminal investigation, since the launch of the 2007 National Security Strategy the complaints regarding torture have quadrupled, with only 5 convictions.  

José Antonio Guevara was then asked to speak on who is perpetrating the violence and how is it taking place.  He began by noting that in 2016 then President Calderon declared war on narco-trafficking.  This was thought to be a figure of speech, but the reality is over 600,000 armed forces have been deployed throughout this conflict. Some think this situation is marked by crimes against humanity committed by both sides.  Hundreds of thousands have been killed and others tortured, and we know a large number of these people have been killed in a confrontation with the armed forces. There is also a public information register which shows the armed forces have detained over 70,000 people.  The armed forces do not have the mandate to detain them, but they say they have caught them in the act.  In Mexico, people can be arrested and detained for 80 days to prove a link with a crime, which is not in accordance with international law.  

Guevara explained that there is a high intensity of armed forces perpetrating the violence.  He went on to discuss why there has been so little accountability for these acts.  One of the factors is that there is a lack of independence for district attorneys.  Those acting in certain districts are not held responsible by the overarching state even though they knew crimes were being committed. The state did nothing to install competent bodies, and when there were functioning bodies the state ensured investigations were not carried out.  The official investigations are not independent which is why we see the lack of impunity and why the international community is demanding an independent investigation.  

Pablo De Greiff then spoke on whether or not Mexico is in transition, and, if so, what it is transitioning from/to.  He began by discussing the models of modern transitional justice, which was originally shaped by the post-authoritarian southern cone and now often occurs in post-conflict situations.  Mexico is unique, as it is not undergoing a strictly post-authoritarian transition nor a post-conflict transition. It is a mixture of conflict and organized crime, which does not fit in the usual phenomena of transitional justice.  He believes that the semantics of transitional justice are not important, but what is important is that it invites a comprehensive response to issues of redress.  His recommendation is that under the transitional justice agenda, rather than fixating on particular measures, we start by considering the importance of the relevant types of ‘rights’ that are at issue in Mexico. The fundamental question is then which institutional forms are most conducive under the peculiarities of the Mexican situation. De Greiff believes the rhetoric of transitional justice might be useful, as long as there is not a complete repetition of past circumstances that might not harmonize with the Mexican situation.  This will require creativity not only on the part of Mexico but on the part of the international community as a whole, as Mexico is not experiencing these problems in a vacuum and should not be left alone to deal with them. 

Next, José Antonio Guevara was asked to speak on the promises made by the new government.  The new president has met with victims’ organizations to promise a mechanism to tackle impunity, justice for victims, independence for public prosecutors, backing the United Nations as they support Mexico.  There have already been meetings by a working group to discuss the conflict and there has been little determined by it with regards to what happened and who are the victims, which is why it would be helpful to have a truth commission.  This way there could be a common narrative about what happened and what could be done to prevent this in the future.  This group has received notice that there had been some progress in implementing the needed measures, and they are hopeful for the future. 

He then spoke on the question of what Mexico can do by itself and if there a need for international assistance. He believes that Mexico has elements of the political will necessary to remedy what has happened, but it will need international support from civil society to keep this will going.  Without involvement and funding, there will not be a sustained effort. Mexico is also a major international actor, and there no way to sustain this political will without a commitment by other states to express support for these endeavors. He outlined two challenges: making rapid progress on individual cases that need attention and taking a long-term view of structural changes and reforms.  

Pablo was then asked what an international mechanism on accountability was going to accomplish.  He noted that there is no country with a normal judiciary that could take on the number of cases that Mexico will face. Law schools, when they train investigators, teach them how to prosecute murder and similar crimes as stand-alone cases. There are very few instances of broad prosecutorial cases that do not deal with isolated instances but rather patterns, so as to disarticulate networks of criminality.  There are some instances of states that have this capacity, like Bosnia, Argentina, and Colombia.  This is not a spontaneously developed capacity, and this is where the mechanism can help.  Having the government as a partner to the agreement would signal a deeper commitment to this mechanism - or at least the potential would be much greater.  This would have to be a mixed endeavor of both international and national actors which would facilitate ownership of the outcome and actions.  Pablo spoke in favor of implementing this type of mechanism in addition to an ICJ investigation. 

Pablo then spoke on the concept of amnesty in this situation.  He explained that amnesty is a unique concept in situations involving organized crime rather than a more typical armed conflict.  He believes the fundamental limitations of amnesty ought to be respected; there should be no amnesty for crimes against humanity and international crimes, and this should not preclude other avenues for people accused of these crimes receiving reduced sentences for collaboration to combat organized crime. 

Guevara also spoke on the topic of amnesty.  He discussed an article written by a close friend of the President which claimed that the possibility of crimes against humanity receiving amnesty is excluded.  In the security policy, aspects of the idea of amnesty, pardon, or cooperation were discussed.  Children, women, and similar categories may be offered amnesty.  Guevara believes there are benefits to this type of cooperation. This can help find the disappeared, and in return, the cooperators could get reduced sentences.  He believes that amnesty may also have to apply to corruption, as it is endemic in the government and, at this point in time, you cannot completely flush it out.  

The last topic of discussion was with regards to what the role of the ICC could be in Mexico. José has always believed the role of the ICC is important in the fight against impunity.  He believes independent public prosecutors could focus on the smaller crimes and the ICC can focus on the higher level atrocities and actors.  Deborah noted that there has already been a specific case referred to the ICC by the senate, which signals a willingness to involve the ICC more in the future.