ASP19 Side Event: The Key to Unblocking Security Council Referrals: Vetoes & Atrocity Crimes

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES

11 December 2020

Name of the Side Event: The Key to Unblocking Security Council Referrals: Vetoes & Atrocity Crimes (Co-sponsored by the Permanent Mission of Sierra Leone to the United Nations, the Permanent Mission of Costa Rica to the United Nations, The Kingdom of the Netherlands, and the International Center for Transitional Justice (ICTJ))

Report by: Alexandrah Bakker and Kristoffer Burck, Junior Research Associates and Tamia Brito, Research Associate PILPG-NL

Highlights:

• The use of a veto in cases concerning atrocity crimes can be incompatible with international law, specifically jus cogens norms, the “Purposes and Principles” of the United Nations (UN) Charter, and treaty obligations.

• The panelists agreed with Prof. Trahan’s proposal that, as a pathway to unblock the deadlock at the UN Security Council, the UN General Assembly could request an Advisory Opinion from the International Court of Justice, clarifying the legality of the use of vetoes before atrocity crimes.

• Such a request requires coordinated efforts by like-minded states and civil society organizations.

Summary of the Event:

The event began with introductory remarks by Ambassador Alie Kabba, Permanent Representative of Sierra Leone to the UN. He pointed to the special importance of dialogue this year, with the health and economic crisis weighing heavily on the international community. Yet, Ambassador Kabba highlighted that cooperation is ever more crucial with regards to an older problem: the use of veto power by the five permanent members (P5) of the UN Security Council (UNSC). The African Union, having expressed discontent, demanded a reform of the UNSC to ensure a fair and regionally balanced system. H.E. Kabba mentioned that accountability for atrocity crimes is closely linked to the equitability of the UNSC and that the power of the veto should at least be democratized among all regions of the world to allow responsible use to engender good faith negotiations, accountability, and transparency.

Professor Jennifer Trahan proceeded to introduce the main issue. She laid out that the veto power used by the P5 in atrocity crimes (genocide, crimes against humanity, and war crimes) is at odds with fundamental components of the international legal system.  She used the situations of South Africa, Rwanda, Darfur, Myanmar, and Syria to illustrate instances where vetoes blocked action or accountability. According to Professor Trahan, the signaling effect of these vetoes goes beyond the concrete situation and indicates to possible perpetrators around the world that they might be protected from prosecution. She then introduced her latest publication entitled ‘Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes’.  In her publication, Prof. Trahan argues that veto power in situations of atrocity crimes is incompatible with international law on three grounds: 1) the protection brought by jus cogens norms prohibiting genocide and crimes against humanity, 2) the “Purposes and Principles” of the UN laid out in Articles 1 and 2 of the UN Charter, and 3) foundational international treaties. In particular, Prof. Trahan referred to the 1948 Genocide Convention and the 1949 Geneva Conventions, which require states, including the P5, to take reasonable action within their power to prevent atrocity crimes. While this due diligence obligation is difficult to quantify, Prof. Trahan considered that situations where at least nine members of the UNSC are prepared to take measures yet a P5 member blocks a resolution are to be understood as an antithesis to the due diligence obligation. She lastly provided three possibilities to move forward: 1) states should make these legal arguments against using the veto in cases of atrocity crimes in as many fora as possible, 2) the UNGA should issue a resolution reflecting the legal limitations of the use of vetoes in situations involving atrocity crimes, and 3) the UNGA should request an Advisory Opinion from the International Court of Justice (ICJ) on the legality of vetoes under these circumstances.

Ambassador Hans Corell, former Under-Secretary-General for Legal Affairs and legal counsel at the UN, agreed with Professor Trahan’s characterization of the problem and potential solutions. He reminded the audience that the UN is a remarkable organization, but its ability to act in the face of atrocity crimes is weakened by the Security Council’s dependence on the P5. He mentioned the prevention of any meaningful action in Syria due to two P5 members. He seconded Prof. Trahan’s suggestion that the UNGA should ask the ICJ for an Advisory Opinion to establish legal clarity. Ambassador Corell concluded by calling on states to acknowledge possible threats due to climate change and ensure that the UNSC is prepared to address future conflicts. 

Justice Richard Goldstone, former Prosecutor of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, and Chair of the Independent Expert Review of the ICC and the Rome Statute System, started his comments by clarifying that a considerable number of atrocity crimes are not covered by direct ICC jurisdiction. While some justice might be better than no justice, he cautioned that the UNSC referrals of situations to the ICC could be an important mechanism to bridge this gap. However, due to vetoes by Russia and China, the UNSC has failed to refer the situation in Syria to the ICC, perpetuating impunity.  Attempts by the UNGA to gather evidence, for instance through the International, Impartial and Independent Mechanism for Syria (IIIM), are of little value if the UNSC does not refer the situation to a court or special tribunal. Justice Goldstone described Prof. Trahan’s proposal for the UNGA to ask the ICJ for an Advisory Opinion as a constructive approach to achieve clarity on the legality of the veto in such situations. 

Ambassador Allan Rock, former Minister of Justice and Attorney-General of Canada and former Canadian Ambassador to the UN, continued by pointing out that the prevention of atrocity crimes as a threat to peace and security is at the core of the UNSC’s mandate. After the failure to prevent genocide in Rwanda, states agreed to respond to these situations in a timely and decisive manner. Yet, according to Ambassador Rock, the reality in Myanmar and Syria seems different. In both cases, the UNSC did not exercise its authority to refer the situation to the ICC due to the threat of a veto. Ambassador Rock recalled that veto power was originally designed to apply in situations of substantial disagreement only and that P5 members should refrain from utilizing veto power in cases in which they are themselves involved. The political blockade allows for impunity for atrocity crimes and hurts the credibility of the UN as a whole. Ambassador Rock lauded the legal approach by Prof. Trahan as a pathway to challenge the application of the veto power in cases of atrocity crimes through the request of an ICJ Advisory Opinion. To follow this path, Ambassador Rock urged other member states to join forces within the UNGA.

With a focus on the situation in Syria, Prof. Trahan elaborated that the blockade of an ICC referral by a veto resulted in impunity for recorded crimes against humanity and war crimes committed by government forces and counter-government groups. The blockade further prevented the investigation of the alleged genocide committed by ISIS/Daesh against the Yezidi people, eliminating the potential deterring effect of such an investigation. Prof. Trahan clarified that while France and the UK are willing to refrain from using the veto in situations of atrocity crimes, the other three P5 members would not. She pointed out that her argument is legal, rather than political, as voluntary commitments are impracticable. Ambassador Rock added that there is virtually no political cost involved for France and the UK to commit to voluntary restraint, as they can rest assured that the other three permanent members would not give in to this commitment.

Ambassador Corell emphasized that international law has significantly developed since 1945 and that the UN Charter should be understood as a living document that requires interpretation in the current context. Measures such as veto power should, as Prof. Trahan explained, be understood in light of emerging jus cogens norms and treaty law. An authoritative opinion of the ICJ could help clarify the situation. Justice Goldstone added that the threat of a veto alone has immense discouraging effects and hinders resolutions even before they are brought to the floor. Yet, he acknowledged that bringing resolutions to a vote at least requires the vetoing power to explain its decision.

The session concluded with questions from the audience on the practicalities required for veto reform. In particular, the audience inquired into what reform should look like, what the consequences of an unlawful veto should be, and what steps are necessary to move towards an ICJ Advisory Opinion. Prof. Trahan replied that Charter amendments are themselves subject to vetoes and thus other proposals, such as Liechtenstein’s suggestion that every veto decision should be discussed in the UNGA, are necessary. Ambassador Rock added that the justifications of P5 states for their veto are of limited value and often evade real discussion. He remarked again that the merit of Prof. Trahan’s argument lies in the fact that it is legal and does not require the P5 members to be persuaded. Prof. Trahan added that an ICJ Advisory Opinion would make future concrete cases possible, thus opening the possibility to attribute responsibility to a state. She underlined that to obtain an Advisory Opinion, states, civil society organizations, and academics must all argue for the necessity of such a decision. Justice Goldstone noted that African states have changed their attitude towards referring situations to the ICC, and a majority now sees ICC referral as a tool to create equity. With the African and Latin American continents being denied a veto, they could be critical in efforts to refer this question to the ICJ. Ambassador Rock found it encouraging to see African states expressing a more positive attitude towards the Court and described the practical process of like-minded states joining forces to achieve a majority within the UNGA.

Asked about potential soft law instruments, Prof. Trahan clarified that the current French/Mexican initiative can be understood as soft law, but that her approach signifies a move to consider hard law. Several aspects of preventing atrocity crimes, including facets of the Responsibility to Protect (R2P) are already enshrined in hard law. These are exactly the aspects that can render an application of a veto in cases of atrocity crimes unlawful. In closing the event, Ambassador Corell and Justice Goldstone urged states to engage in diplomatic efforts to achieve support within the UNGA and they called upon the Assembly of State Parties to recognize this issue. Prof. Trahan concluded with a hopeful statement, underlining that like-minded states, NGOs, and responsible states indeed have an avenue to pursue.

ASP19 Side Event: Paths to Justice and Accountability for Venezuela, Ongoing Initiatives by the International Community

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

11 December 2020

Name of the Side Event: Paths to Justice and Accountability for Venezuela, Ongoing Initiatives by the International Community (co-hosted by Defiende Venezuela and Un Mundo Sin Mordaza)

Report by: Diana Sposito, Research Associate PILPG-NL

Highlights: 

Venezuela is in the process of pursuing justice for victims of serious human rights violations committed in the state. The engagement of the international community, more specifically the International Criminal Court, is key to this process. Secretary-General of the OAS, Luis Almagro, left an important message that, at this very exact moment, there are serious human rights abuses being committed in Venezuela and that justice for victims becomes more and more important each day.

Speakers:

• Paolina Massidda (Principal Counsel at the Office of Public Counsel for Victims ICC)

• Rodrigo Diamanti  (Moderator, Director of the NGO Un Mundo Sin Mordaza)

• Luis Almagro (Secretary-General of the Organization of American States - OAS)

• Carlos Briceno (Legal Coordinator of the NGO Defiende Venezuela)

• Rod Rastan (Legal Advisor in the Office of the Prosecutor at the International Criminal Court)

• Omar Pinango (Laywer and Member of the NGO Defiende Venezuela)

Summary of the Event: 

The first speaker, Luis Almagro, Secretary-General of the Organization of American States - OAS, provided an overview of the human rights situation in Venezuela. He highlighted the importance of justice in society, mainly focusing on Venezuela. According to him, Venezuela faces a sort of dictatorship, which is different from all other states because of the lack of armed conflict. The Venezuelan government faces accusations of being involved in drug trafficking, corruption, and other serious human rights violations.

The OAS Secretary-General pointed out that there is no justice in the state, and impunity is prevalent. He claimed that the national judiciary is partial, non-independent, and that there is only an impression that it seeks justice when, in reality, it has been covering or diminishing grave abuses. The panelist urged the international community and the ICC to take action to remediate such abuses and hopes that Venezuelans will find justice someday.

The second speaker, Rod Rastan, Legal Advisor in the Office of the Prosecutor at the International Criminal Court, explained how the ICC’s Preliminary Examination (PE) proceedings work and updated the participants on the current status of the PE in Venezuela. He first explained that there are two PEs usually opened - one that determines whether it will open an investigation, and another that determines which crimes were committed. This process has no fixed period and depends on the situation.

The current PE on Venezuela is analyzing which alleged crimes have been identified during the examination and, next Monday, December 14, 2020, the OTP will issue a determination on its merits. Mr. Rastan manifested that the OTP is willing to bring all ongoing PEs to some kind of decision. This would include either to close the PE, due to lack of evidence, or proceed with them if there is a reasonable basis. In case neither of these scenarios are possible, the OTP will probably issue a detailed determination on the status of the PE and its possible outcomes.

The next panelists answered questions from the audience. Carlos Briceno, Legal Coordinator of the NGO Defiende Venezuela, answered a question about the identified patterns of crimes in Venezuela. According to him, there is a massive number of violations documented since 2014, which, at the time, did not have the status of crimes against humanity. Nowadays, several reports from different national and international organizations and NGOs provide evidence that the human rights abuses in Venezuela amount to crimes against humanity.

Despite the complexity of different crimes and patterns of violations, he said that the main crimes identified were indiscriminate use of force by the police, especially during protests, and human rights abuses against these protesters in detention. Mr. Briceno argued that armed police officials and national authorities within the government administration heavily target political and military dissidents and people affiliated with them, such as their family. He also highlighted the impunity in the state.

The Lawyer and Member of the Defiende Venezuela, Omar Pinango, answered questions on the crimes committed in Venezuela. According to him, there are at least four different crimes: sexual violence committed by state officials, enforced disappearances, extrajudicial killings, and persecution against political dissidents, which include torture.

Following the discussion, participants asked Paolina Massidda, Principal Counsel at the Office of Public Counsel for Victims of the ICC, to explain how the ICC’s Office of Public Counsel for Victims works and how it could contribute to Venezuelans. According to her, the office is inclusive in the ICC mechanism but also independent. Its lawyers have the sole task of representing victims. There are different ways to represent victims - either by representing them directly in the proceedings before the Court or by providing assistance and support to external lawyers, who already represent the victims. Thirdly, the office’s lawyers can appeal before the Chambers issues that may affect the victims, if they find that there is a general interest to them.

Paolina’s speech emphasized the role that the victims play during PEs and that the Venezuelan victims have already significantly contributed to providing information to the OTP. The PE is an important step for seeking justice, and the OTP has received a huge amount of information about the crimes committed in Venezuela. If the OTP opens an investigation, victims will continue to play an important role in informing about the violations and becoming potential witnesses. There is an alternative if it does not open. The five other states who referred the situation in Venezuela to the ICC can request the Prosecutor to review its decision.

The audience posed several other questions to the panelists, which focused on exploring the topic of PEs, victim participation, and the role of civil society during this period, who is key in documenting human rights violations and providing information to official investigations.

The event finished with a speech from Génesis Davila, founder of the NGO Defiende Venezuela, who provided a summary of the discussion. She reminded the audience that there are three phases of the PE on the situation in Venezuela. Phase One found that the ICC has jurisdiction over possible crimes committed. Phase 2 found that there are sufficient grounds to believe that serious crimes have been committed in the state since 2014. And Phase Three will determine whether there is a genuine investigation ongoing under national proceedings, or, if not, whether there is the willingness of the state to open one. She thanked the panelists for the insightful discussion and the space that was created to debate such relevant issues. Finally, she urged that victims in Venezuela find remediation and that there is appropriate accountability for the perpetrators of crimes.

ASP19 Side Event: Ecocide as an international crime: key considerations

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

Friday 11 December

Name of the Side Event: Ecocide as an international crime: key considerations (co-hosted by Stop Ecocide Foundation, Institute for Environmental Security & Vanuatu)

Report by: Isabelle Jefferies, Junior Research Associate PILPG-NL 

Main Highlights: 

• At the 18th ASP in 2019, the small island States Parties of Vanuatu and Maldives addressed the urgent need for “Ecocide” to be incorporated into the Rome Statute.  In essence, this would criminalize mass damage and the destruction of ecosystems.  The movement gained momentum, with prominent states such as France and Belgium expressing their support for the cause.  

• In November 2020, a panel was convened by the Stop Ecocide Foundation to draft a legal definition of Ecocide as a potential international crime that would sit alongside genocide, crimes against humanity, and war crimes. 

• The drafting process will begin in 2021, and this event covered the key legal, historical, and political implications of the proposed plan. 

Summary of the Event: 

The event was co-hosted by the Republic of Vanuatu, the Stop Ecocide Foundation, and the Institute for Environmental Security. A distinguished panel of speakers, including three members of the drafting panel, gave their views on the proposed plan to adopt a legal definition of ecocide. The panel consisted of Philippe Sands QC, barrister at Matrix Chambers and Professor at University College London, Kate Mackintosh, Executive Director at the Promise Institute for Human Rights and Professor at UCLA School of Law, Marie Toussaint, Member of the European Parliament (Greens/EFA), and Judge Tuiloma Neroni Slade, former ICC judge. The event was moderated by Andrew Harding, Africa correspondent for the BBC. 

Mr. Dreli Solomon, representative of Vanuatu, welcomed the attendees by emphasizing the seriousness of the ongoing climate crisis, and recalled the importance of solidarity if progress is to be achieved. Mr. Pekka Haavisto, Finland’s Minister for Foreign Affairs, also stressed the seriousness of the ongoing climate emergency. He added that the small island states of the Pacific and the Indian Ocean are the first to suffer the consequences of the changes we are seeing in the climate, and they desperately need the support and reaction of the international community.   

Each speaker was asked to give some introductory remarks. Mr. Philippe Sands QC began by paying tribute to Polly Higgins, one of the most influential figures in the green movement, who continues to inspire those involved in the development of the crime of Ecocide. Prof. Sands will chair the ecocide drafting panel, and started by giving some context to international criminal law. Before 1945, war crimes were the only codified international crimes.  fter the Second World War, new crimes were created, and were applied retroactively to those accused of atrocities, namely, crimes against humanity and genocide. Mr. Sands was persuaded to participate in the drafting panel for Ecocide as he recalled Raphaël Lemkin and Hersh Lauterpach, two crucial figures in the drafting of the above-mentioned crimes. They were crucial in the enactment of these crimes by bringing their ideas to the table, and he hopes to do the same with ecocide.  

The extensive impact of human activity on the environment only began to enter into the consciousness of people around the world in the 1970s with the Stockholm Conference. Crucially, in 1996, in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice stated that the protection of the environment is part of customary international law. Twenty-five years later, the extraordinary challenges we face as human beings, and that are faced by the ecosystem and all they contain, are more prominent than ever. Prof. Sands emphasized that the time has come to harness the power of international criminal law to effect change for the better. He emphasized that he is not starry eyed, and that he is aware that there will be many challenges. Notably, he is concerned about using the definition of genocide too closely in the drafting of Ecocide, as the former requires that the intention to destroy a group in whole or part is proven, and this is complex.  Therefore, the drafting panel, whose terms of reference are strictly restricted to coming up with a definition of Ecocide, must take the best from the definition of crimes against humanity, the best from the definition of genocide, and perhaps some aspect from war crimes. They must then meld from this something workable and effective. In other words, the legal definition of Ecocide must not be overly onerous, but on the other hand, it must not open the floodgates. It must deal with real situations, when one or more human beings recklessly, or with intent, proceeds to destroy the environment or a part of it, on a massive scale. Prof. Sands is satisfied with the composition of the panel, as it is very broad ranging, which will allow for a constructive debate. He assures stakeholders that the panel will have a close regard to the practice of international courts and tribunals in order to come up with a feasible definition in the next six months. 

Kate Mackintosh, also a member of the drafting panel, continued the discussion with her introductory remarks. She first introduced the history of Ecocide, a term that was coined by Professor Falk in 1973, when he proposed an International Convention on the crime of Ecocide in response to the use of agent orange and environmental destruction during the Vietnam war. Prof. Falk had drawn his inspiration for his definition of Ecocide from the Genocide Convention. Moreover, the destruction of the environment during armed conflict or for other hostile purposes was then prohibited by two new conventions, namely the First Additional Protocol to the Geneva Conventions (1977), and the Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (1978, ENMOD). Also, in 1985, the UN Committee on the Prevention of Discrimination and the Protection of Minorities proposed broadening the definition of genocide to include adverse modifications to the environment, which threaten the existence of entire populations, such as through nuclear explosions, chemical pollution, acid rain, or the destruction of rain-forest. Prof. Mackintosh drew the attention of the audience to the fact that there is a contrast between these definitions: some are anthropocentric, whereby the elements of the crime require harm to humans, and others are eco-centric, whereby harm to the environment is enough in itself. This is an issue which the drafting panel will have to deal with. Moreover, she recalled that the Rome Statute references the war crime of causing long-term, widespread and severe damage to the natural environment in international armed conflicts. However, this is subject to the proportionality test of anticipated military advantage. In drafting a legal definition of Ecocide, the panel will draw inspiration from the above mentioned sources.

Prof. Mackintosh then touched upon the issues that will be taken into consideration by the panel. She referred to the work of a committee of experts on international criminal law that convened in early 2020 at UCLA. The first issue she anticipates is whether the panel should go for a broad definition that catches climate change, or a more narrow focus that focuses on massive environmental damage. The second issue will be whether harm to the environment should be punished per se, or whether it has to be linked to human harm. The anthropocentric approach is limited given that it can take time for the harm caused to humans as a result of environmental damage, to show.  Lastly, ecocide would need to be forward looking due to the principle of legality. However, this brings the risk of skewing responsibility unfairly towards the Global South, so the panel may need to come up with a similar principle to the Common but Differentiated Responsibility adopted by the United Nations Framework Convention on Climate Change (UNFCCC).

Marie Toussaint continued the introductory remarks by noting the revolutionary nature of the ecocide drafting panel. Although she predicts some legal difficulties in the drafting process, she believes it has the potential to change the way in which humans apprehend and interact with nature and ecosystems around the world. In August 2018, French President Emmanuel Macron denounced the inaction of Brazilian President Jair Bolsorano concerning the deforestation of the Amazon. He used the word Ecocide to describe the events, allowing the word to gain traction. However, Ms. Toussaint noted that despite the President committing to pushing for the recognition of Ecocide at the international level in January 2020, nothing has been done in this regard. Moreover, the Yellow Vest Movement saw people take to the streets and demand fairer climate policies, that are currently deemed to be too strict on the poorest levels of the populations, and too lax on the richest even though they are often the ones that pollute the most. Yet, she believes that the French government is refusing to recognize the intrinsic value of nature, and that for them, nature is merely something to serve the interest of human beings. Ms. Toussaint stressed that Ecocide should not be emptied of its content, especially in the national jurisdiction of a state that is hoped to be a big supporter at the international level, such as France.  

However, France is not the only purported supporter of Ecocide. In Belgium, Samuel Cogolati presented a motion in the national assembly which seeks to recognize Ecocide within the national law, and support it as an international crime at the ICC. A new government was formed, but they are still working on this proposal. This is a huge step forward, especially as a member state of the European Union. She further spoke about the important role of Sweden in the creation of the drafting panel. Ms. Toussaint stated that she would like to see EU commitment to support the recognition of Ecocide at the international level, and also within EU law. This can be achieved through a new Regulation for the recognition of Ecocide, or through the revision of a 2008 Directive on the Protection of the Environment for Penal law. She concluded with a call on participants to get in contact with their local parliamentarians, if they are honest and committed to the environment, to join the ecocide alliance.

Tuiloma Neroni Slade, who has spent decades fighting for the rights of small island states, was the last to give his introductory remarks. As a Samoan, he emphasized his personal perspective on the relevance of Ecocide. He spoke about the Pacific islands, and how they have been misused and abused, mostly through the careless nature of human activities. He used the example of plastic, which has been recognized as a global issue since the 1960s, but the problem has expanded disastrously. He also talked about the disastrous destruction of coral reefs on a massive scale, due to bleaching that is caused by ocean acidification. Other factors that substantially compelled the Pacific’s precarious environmental situation are that it was used as a theatre of war for Western nations. Judge Slade stressed that the Pacific communities had no part in the causes of war, yet they became the object of the atrocities and the scourge of war. The pacific was a testing ground for weapons of mass destruction.  

In support of the concerns expressed by the representative of Vanuatu and the Maldives at the 18th session of the ASP, Judge Slade emphasized that small islands states are the least responsible for global carbon emission, yet, they are among the first and most severely impacted by the consequences of the climate crisis. Their predicament is made worse by their precarious living situations, they are small communities that do not have the coping capacity, or the resources and technology to defend themselves from the disasters that occur as a result of the changes in the climate. He further mentioned cyclones, and the devastation they bring. For instance, Vanuatu lost over 65% of its GDP to Cyclone Pam in 2015. As science has predicted, these so-called “super-cyclones” have become more destructive in their frequency, and in their high wind intensity. The struggle for survival is real, so people face the inevitable choice of out-migration and leaving islands altogether. Judge Slade stressed that the Alliance of Small Island States fear that what is happening to them, will inevitably happen to others, as demonstrably is already happening around the world.  He concluded with expressing belief that small islands should serve as the global frontline warning system to others.  

The event then moved on to a Q&A session, during which participants were given the opportunity to present their questions to the panelists.The first question was as follows: why is it more advisable to invest time and resources in establishing a crime of ecocide than in making better use of existing norms and procedures to address environmental destruction? Prof. Sands provided his thoughts and stressed that the crime of Ecocide should not be seen as a “magic bullet” that will solve all the issues surrounding the climate crisis. However, criminal law is a useful tool which will raise consciousness as to the seriousness of the issue at hand. He noted that the Rome Statute could be amended, and a new category of crimes against humanity could be created. However, words matter as proven by the attention that is captured when the word genocide is used. By contrast, the word crime against humanity does not get as much attention. However, he is adamant in the necessity to move away from the anthropological definition of ecocide.

The second question put to the panel was the following: if ecocide is criminalized, how would the continued refusal of the US to sign on to the Rome Statute affect the potential to prosecute US corporations? Prof. Mackintosh gave her views on this and she stated that the ICC has a number of alternative bases for jurisdiction, with the principal ones invoked being territory and nationality jurisdiction. Hence, if US corporations were to have subsidiaries in a state that is a State Party to the ICC, the latter would have jurisdiction to examine, investigate, and possibly prosecute the crimes they are alleged to have committed. Also, the ICC has used an “effects” approach, whereby if the effects of a crime are felt in a State Party, the ICC has jurisdiction. 

Moreover, the panel was asked to share its view on national initiatives to define Ecocide in their national legislations, but that may not seize the full magnitude of the offence and may therefore prevent further legal evolution or from efficient prosecution of on-going serious harm to the environment. Prof. Sands explained that the international arena is only going to be a backstop for the criminalisation of Ecocide.  In fact, it is for national courts to deal with this primarily. As a result, the role of the Ecocide drafting panel is to come up with a definition that works domestically. 

Lastly, the panel was asked to give some examples of initiatives that they believe could be taken by attendees to support the codification of Ecocide as an international crime. A general consensus among the panelists was that those committed to the codification of Ecocide as an international crime should write to their relevant members of parliament, and push them to support the cause. Prof. Sands also told attendees that the drafting panel would send out a call for submissions when they begin their work in early 2021. Marie Toussaint recommended attendees to support the Stop Ecocide campaign and to sign petitions. Jojo Mehta, co-founder of the Stop Ecocide Campaign, concluded that the use of the Ecocide in itself, to describe the mass damage to nature, cannot be undermined.

ASP19 Side Event: Future of International Justice: Accountability Mechanism for Grave Crimes in Ukraine

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

11 December 2020

Name of the Side Event: Future of International Justice: Accountability Mechanism for Grave Crimes in Ukraine (Hosted by the Ukrainian Legal Advisory Group)

Report By: Marielotte van Ballegooijen, Junior Research Associate PILPG-NL  

Highlights: 

• Panelists underlined the challenges of investigating grave crimes committed in Ukraine, particularly the intimidation of witnesses and disappearance of evidence at the national level.

• Panelists noted that even if the international community assists in addressing these investigation challenges, structural changes are required within the Ukrainian justice system to achieve accountability. 

Summary of the Event: 

This side event, organized by the Ukrainian Legal Advisory Group (ULAG), brought attention to accountability for alleged grave crimes committed during the armed conflict in Ukraine. Five years ago, the Office of the Prosecutor (OTP) opened a preliminary examination into the crimes committed in Ukraine. At the same time, Ukrainian authorities conducted their own investigations. This side event aimed to address a specific question related to the ICC’s principle of complementarity: How should the nexus between the Ukrainian state’s responsibility to investigate and prosecute grave crimes and the role of the ICC be balanced? 

The moderator of the event, Ms. Nadia Volkova, Director of ULAG, introduced the panel consisting of Ms. Valeriya Melnik, Mr. Akardiy Bushchenko, Ms. Katrin Weilhammer, Mr. Eric Witte, Ms. Priya Pillai, and Mr. Rod Rastan.

Moderator Ms. Volkova directed the first question to Ms. Melnik, Prosecutor of the Department for the Supervision of Crimes Committed During Armed Conflict under the Office of the Prosecutor General of Ukraine, on the challenges the Department faces when trying to achieve accountability. Ms. Melnik noted that the first challenge is that Ukraine struggles to effectively conduct investigations, mainly due to its relatively weak justice system. She mentioned issues such as the temporal scope of the alleged crimes that hinder the investigation process. For instance, victims and alleged perpetrators continue to reside in occupied territory, which means conducting discussions or interviews with them is impossible. Besides this, a procedural challenge is that under Article 219 of the Ukrainian Criminal Code, pre-trial investigations need to be conducted within eighteen months after the alleged crimes were committed. This poses a time limit problem that contradicts the Rome Statute, under which no statute of limitations is applicable to war crimes. 

Following Ms. Melkin’s remarks on these challenges, Mr. Bushchenko, Judge of the First Chamber’s Criminal Cassation Court in Ukraine, noted that war crimes prosecutions are extremely difficult in Ukraine. He described that the Department is working alone with few resources, which may lead to the disappearance of evidence or intimidation of witnesses. He proposed to structurally reform the Ukrainian justice system to improve investigations, witness protection, and perpetrator interrogations. Although these issues occur at the national level, he noted that the ICC could assist Ukraine with restructuring, as offices such as the OTP could lend resources to aid in pre-trial investigations.

After panelists with experience at the national level had spoken, the moderator invited panelists from the international level to share their thoughts. Ms. Weilhammer, Head of the National Justice Programme of Justice Rapid Response, noted that, besides the already mentioned challenges related to the Ukrainian legal framework, there are also certain capacity and evidentiary challenges as well as challenges with prosecutorial strategy. A further identified issue at the national level is witness management and witness protection. The final main challenge Ms. Weilhammer pointed to concerns victim participation. Ms. Weilhammer described that at the national level prosecution tends to focus on perpetrators, but argued that this approach should be shifted to include victims as well. This could lead to more evidence, as victims would feel empowered to come forward. Ending her remarks, she concluded that these challenges do not only arise domestically, but are also challenges prosecutors and investigators at the international level face.

Mr. Witte, Senior Policy Officer at the Open Society Justice Initiative, followed by sharing potential models that could address some of the specific challenges and needs mentioned, referring to models used in other situations as reflected in OSJI’s 2018 handbook on “Options for Justice”. He specifically referred to a successful model implemented in Guatemala. The Guatemalan model, with the International Commission against Impunity (CICIG), included international prosecutors and advisors working at the national level and providing advice, mentorship, and legal knowledge on how to move forward in the investigations and prosecutions, rather than taking over the work from domestic departments. This model led to multiple prosecutions, such as a genocide conviction of a previous head of state and dictator General Efraín Ríos Montt. On a final note, Mr. Witte underlined that such models should be informed by the needs of the country and that they are largely dependent on political will. They only work if, at a national level, states are willing to accept the international community’s involvement. 

Ms. Priya Pillai, international lawyer and Head of the Asia Justice Coalition, continued with Mr. Witte’s train of thought and discussed the potential importance of a coalition between the international community and states, using the Asia Justice Coalition as example. She argued that a coalition can ensure proper communication, transparency between individuals, and diversity in approaches. The existence of a coalition could also contribute to political will, as individuals are equally taken into account, and could generate both internal and external support. She noted, however, that involvement by the international community does not always lead to successful prosecutions.

The side event ended with Mr. Rastan, representative of the ICCs OTP, with remarks on the PE in Ukraine and complementarity. Mr. Rastan briefly referred to the debate of whether the ICC takes the state’s concerns into account or whether they proceed with investigations and expect the state to simply accept their conclusions. Mr. Rastan underlined that the ICC wishes to support national authorities in their accountability efforts. He further reiterated what the OTP had mentioned at last years’ ASP: that the OTP has identified crimes committed in Ukraine that fall under the Court’s jurisdiction and that the OTP has noted the actions undertaken by Ukrainian authorities as well as challenges at the national level. Building on this, Mr. Rasten informed participants that an announcement on the PE will be made later today. If an investigation were to be opened, he continued, complementarity would remain a crucial point, highlighting the importance of continued cooperation between the ICC (as a court of last resort) and Ukrainian national authorities in the fight against impunity. He referred to successful examples of the ICCs complementary operation with national authorities in the Central African Republic, Libya, the Democratic Republic of Congo, and Uganda, in which the OTP was able to work with national authorities on prosecuting alleged perpetrators. He also concurred with Ms. Pillai’s point that even if the ICC proceeds with an investigation into the grave crimes committed in Ukraine, it does not end there as an ICC investigation does not mean a successful investigation nor does it resolve structural issues at the national level. If an investigation were to be opened, that would be the moment to re-emphasize close engagement between the ICC and national authorities, as well as to build a coalition or network to strengthen accountability at the national level.

A recording of the event can be found here: https://www.youtube.com/watch?v=qSmjAh6J-ek&feature=youtu.be.

ASP19 Side Event: Book Launch: Intersections of Law and Culture at the International Criminal Court

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

December 10, 2020

Name of the Side Event: Book Launch: Intersections of Law and Culture at the International Criminal Court (Co-hosted by Australia, The Netherlands, Montaigne Centre, Public International Law & Policy Group (PILPG), SIM, UGlobe (Utrecht University))

Report by: Alexandrah Bakker & Paul Weber, Junior Research Associates PILPG-NL

Highlights: 

• The ICC’s culturally steeped procedures and areas of operation offer many areas for research on the intersections between law and justice - from varying conceptions of justice, the cultural impact of language, to cultural reservations to international criminal law.

• Improved cultural sensitivity on part of the ICC might effectively counter criticisms like the “African bias” that the Court is often accused of.

• A better understanding of cultural mechanisms may improve the administration of justice by the ICC and the Court’s relationship with communities affected by violence.

Summary of the Event: 

Matthew Neuhaus, Australian Ambassador to the Netherlands and chair of the event, opened the book launch by introducing the panelists. He noted that Nikhil Narayan’s chapter, which discusses Asia’s reluctance to join the International Criminal Court (ICC), is of particular interest to Australia as a member of the Indo-Pacific. He also expressed delight at how the book engages closely with African perspectives.

Judge Raul Pangalangan, judge at the International Criminal Court, made some introductory remarks. He observed that although cultural arguments find immense currency in other fields of international law, they are rarely raised in international criminal law. He referred to the Al Mahdi case, in which he served as part of the Trial Chamber, as bearing promise of a change in this trend. He lauded the book for its nuanced reflections on the cultural features and implications of the ICC’s dispensation of justice both inside and outside the courtroom.

Julie Fraser, one of the editors of the book, observed that international law is culturally informed and is an element of culture. The book makes a novel contribution to scholarship in so far as it addresses not only the more obvious aspects of culture at the ICC but also the less visible aspects: intangible cultural heritage, justice as a concept, processes like oath taking and truth telling. Brianne McGonigle Leyh, the other editor of the book, then introduced the contributors of the book and the panelists for the event.

Dr. Leigh Swigart, the first panelist, addressed the academic motivations of her chapter on how the ICC responds to the challenge of accommodating linguistic needs in the vastly different situation countries. Swigart’s chapter draws largely from her past interviews with  ICC officers who provide and use language services. Swigart noted that language and culture are very tightly intertwined: language is a part of culture, and language is used to transmit and express culture. However, many ICC officers consider themselves as far removed from the culture of the situation countries. This underlies many institutional features of the Court such as its unspoken bias towards the English language over the French language and the privileging of legal knowledge over other kinds of expertise.

This was followed by a presentation by Owiso Owiso and Phoebe Oyugi, who have contributed a chapter on plea negotiations. Defined in Article 65 of the Rome Statute, plea negotiations are a legal device through which the accused agrees to plead guilty in exchange for a lower sentence or a lower charge (based on consultations with the Prosecutor). Even per their current conception, plea negotiations enhance the efficiency of the Court: they result in shorter trials, fewer appeals, and dispense with the need to fly witnesses to the Hague. Owiso and Oyugi argued that plea negotiations, if suitably reimagined, hold the potential to better integrate the ICC with domestic transitional justice processes. By way of illustration, in addition to pleading guilty, the accused may be required to engage in public confessions (as in the mato oput in Rwanda), and participate in reconciliation and peacebuilding activities.

Nikhil Narayan, the fourth panelist, contributed a chapter examining Asia’s relationship with the ICC. The Asia-Pacific is the least represented region among the ICC’s states parties: only 19 of the 54 states that constitute Asia-Pacific have ratified the Rome Statute. In his chapter, Narayan observed that this trend ties into a more systemic issue - the common distrust amongst Asian States towards issues of sovereignty, territorial integrity, and non-interference in domestic affairs. The “Asian values” argument is often cited to justify Asia’s reluctance to cede sovereignty to international law. This has manifested in a deep suspicion of the institutionalization of human rights law, with Asia being the only region that lacks a strong coordinating human rights mechanism. Some scholars argue that this skepticism will undermine human rights in Asia, and that Asia needs to engage more constructively with international criminal justice. Conversely, Narayan called on the ICC to engage more closely with Asia and dispel any legitimate misconceptions with regard to Western bias.

Melinda Taylor, the final panelist, spoke of how culture is often invoked and characterized as a defence to the law. Such a narrative invisibilizes the reality of law as a construct of culture. Therefore, it is not appropriate to place law and culture in opposition with each other. Taylor likened the Rome Statute to a language, where different words hold different meanings and values for different users. She pointed to the example of Rwanda, where witnesses reported “seeing things” in locations where they were not physically present, because “seeing things” held a particular significance to them. It is vital for different cultures to see their own values recognized and reflected in the Rome Statute. This could encourage a sense of local ownership and the legitimacy of the international criminal justice project.

The event concluded with questions from the audience - on community engagement and the implications of the recent American presidential elections on the US’s relationship with the ICC. Responding to a question on the ICC’s outreach activities, Owiso and Swigart spoke of how the Court’s current outreach efforts do not go far enough in integrating communities with the visions of the Court. More can be done to repackage the VPRS’ messaging so as to align it with the cultural sensitivities of the victims. Melinda Taylor further noted that outreach efforts should also seek feedback from communities on what they expect from the Court. Notwithstanding concerns of logistical feasibility, local hearings would advance this cause.