ASP20 Side Event: Trust Fund for Victims: Movie Screening of the Reparation Awards in the Al Mahdi Case

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

10th December 2021

Name of the Event: Trust Fund for Victims: Movie screening of the reparation awards in the Al Mahdi case (co-hosted by: Italy, the UK, and the Trust Fund for Victims)

Report by: Guillermo Ferrer Hernáez, Junior Research Associate PILPG-NL

Speakers:

• Antonin Rabecq: FIDH Delegate in Côte d'Ivoire and Guinea at the International Federation for Human Rights;

• Alexandra Xanthaki:  Special rapporteur on cultural rights;

• Mama Koité Doumbia: Chair of the Board of Directors of the Trust Fund for Victims at the International Criminal Court;

• Joana Roper: Ambassador to the United Kingdom;

• Fatou Bensouda: Former Prosecutor of the ICC;

• Ben Essayouti: Director of the library of the Mausoleum;

• Edmon moukala: UNESCO Representative to Mali;

• Kaourou Magassa: Journalist, human rights activist, and correspondent of TV5 monde;

• Elhadj Mahamane: Human rights and cooperation manager;

• Chloé T Simard: Program analyst - global affairs Canada.

Highlights:

• The panelists called for the defense of the right to cultural heritage within the international community.

• The panelists agreed that the Al Mahdi case constituted a landmark case for the defense of the right to cultural heritage.

• The panelists urged the international community to continue implementing measures for preventing the destruction of cultural heritage.

• The panelists highlighted that further commitment and collaboration between international actors must be taken.

Summary of the event:

The first speaker, Antonin Rabecq, noted the importance of preserving cultural heritage, specifically in cases of armed conflict.  He emphasized that the movie screening of the reparations awards in the Al Mahdi case is essential to take collective action.  Rabecq highlighted that the message behind this oeuvre d'art is to show the significance of these cultural sites and the necessity of preventing their dismantling.  He argued that individual and collective reparations must be made in this event.  

The second speaker, Joana Roper, the British Ambassador to the Netherlands, recognized the importance of collective reparations and highlighted the role of UNESCO in categorizing monuments as protected.  These specific buildings constitute an intrinsic part of the culture, identity, and livelihood of millions of people, and whenever they are damaged or destroyed, individual reparations must be made to victims.  Roper counted all the monetary donations made by the international community and the Trust Fund for Victims for restoring the mausoleums of Timbuktu.  She expressed her appreciation for including women in the reparation process. 

The third speaker, Mama Koité Doumbia, Chairperson of the Trust Fund for Victims, recognized the role of UNESCO and the international community in establishing such a quick response to the destruction of the Timbuktu monuments.  She congratulated the team of Mali for their hard work in restoring these monuments and implementing reparations.  Moreover, she underlined the Trust Fund for Victim's role in overcoming all the obstacles faced in Mali.

The panel continued with the screening of the movie, in which the significance of the main destroyed buildings of Timbuktu was highlighted.  These buildings are the main epicenter of the social and cultural lives of the Timbuktu people, hosting many crucial traditions, such as weddings, social events, and religious acts. 

After the screening, the panelists discussed the importance of indemnifying the victims individually and collectively.  These processes could start from monetary compensation but could also include moral compensation.  Al Mahdi's acceptance of guilt helped overcome the suffering caused by the destruction of these monuments. 

The fourth speaker, Monsieur Edmon Moukala, noted the importance of safeguarding properties and underlined that this was the first time that cultural rights were protected in an international court.  Moukala claimed that the ICC had defended the memory of the Timbuktu community by delivering such a verdict.  He emphasized UNESCO's mission of safeguarding cultural and natural landscapes and improving the lives of the communities that live across those places.  The social cohesion of communities must never be put in danger, and whenever this cohesion is violated, perpetrators must be brought to justice.  Moukala underlined that the Al Madhi case was the first historic victory and that the message sent to the international community is that no further impunity will be tolerated.  He noted that there will always be repercussions for destroying these monuments and that perpetrators should think twice about committing such crimes against humanity.

Former ICC Prosecutor Fatou Bensouda congratulated the community of Mali and Mama Koite for their labor.  She highlighted the role of the Rome Statute as a tool for holding accountable perpetrators of crimes against humanity.  Furthermore, she acknowledged that the ICC has made history by delivering this verdict and that the Trust Fund for Victims is doing its best to compensate victims of these crimes.

Ben Essayouti recognized the importance of considering a property as a world heritage site because of the protection afforded by the label.  He provided examples of these prerogatives such as the moral compliance of victims, the implementation of reparations, and the visibility of these monuments.  Elhadj Mahamane underlined the same idea and noted the importance of not forgetting the history of these communities, as most of their values are entrenched in it.

Alexandra Xanthaki reflected that cultural rights are entrenched with other fundamental human rights, such as the right to life.  Firstly, she discussed the role of international human rights law in protecting cultural rights.  She argued that international human rights law provides examples of the best practices for safeguarding cultural rights.  She emphasized that traditionally cultural rights have been seen as the "cinderella" of human rights, but its importance has been reinforced in this Al Mahdi case.  Moreover, she expressed that in her mandate as a Special Rapporteur on cultural heritage, she will be dealing with the politicization of reparations for women.  Xanthaki will ensure that all individuals will be given specific and sufficient reparations. 

Finally, Chloé T Simmard reiterated that experts and human rights activists must consider the role of women in peace in conflict and that reparations should also be given to them, as in the Al Mahdi case.

ASP20 Side Event: Fighting Against Impunity for Gender-Based Crimes: A Policy Paper on Gender Persecution

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

9 December 2021

Name of the Event: Fighting Against Impunity for Gender-Based Crimes: A Policy Paper on Gender Persecution (co-hosted by the Office of the Prosecutor and the Embassy of Sweden in the Hague)

Report by: Pauline Pfaff, Junior Research Associate PILPG-NL

Highlights: 

• The Office of the Prosecutor intends to publish a policy paper on persecution on the grounds of gender as a crime against humanity. 

• To be able to provide accountability for all forms of gender persecution, such as sexual violence, slavery, and the conscription of child soldiers, it is necessary to recognize the underlying discrimination.

• The Office of the Prosecutor invites all stakeholders, including victims and civil society organizations, to participate in consultations to create an inclusive and transparent drafting process.

Speakers:

• Kevin Jon Heller, Special Adviser on International Criminal Law Discourse; Professor of International Law and Security at the University of Copenhagen;

• H. E. Mr Johannes Oljelund, Ambassador of Sweden to the Netherlands;

• Karim A.A. Khan QC, Prosecutor of the International Criminal Court;

• Véronique Aubert, Special Adviser on Crimes Against and Affecting Children; Lead on Children and Armed Conflict at Save the Children UK;

• Patricia V. Sellers, Special Adviser on Slavery Crimes; Visiting Fellow at Kellogg College, Oxford University;

• Kim Thuy Seelinger, Special Adviser on Sexual Violence in Conflict; Research Associate Professor of Public Health and Social Work and Visiting Professor in Law at Washington University in St. Louis;

• Lisa Davis, Special Adviser on Gender Persecution; Associate Professor of Law, CUNY Law School and Co-Director, Human Rights and Gender Justice (HRGJ);

• Danny Bradley, Global Campaigns Officer, MADRE

Summary of the Event:

Moderator Kevin Jon Heller, Special Adviser on International Criminal Law Discourse to the Office of the Prosecutor, opened the event by giving a brief introduction on sexual and gender-based crimes under the Rome Statute.  He noted that the investigation and prosecution of such crimes is among the key priorities of the Office of the Prosecutor.  In line with this prioritization, the Prosecutor intends to publish a policy paper on gender persecution.  Heller underlined that the Office of the Prosecutor welcomes any proposals and comments on such a policy paper.

Swedish Ambassador Johannes Oljelung delivered the first opening remarks.  He highlighted his country’s efforts towards a gender-sensitive and feminist foreign policy.  The Ambassador stressed the need to recognize and address the persistent and systematic discrimination against women.  Impunity for sexual and gender-based crimes fundamentally undermines transitional justice efforts.  He remarked that his country is the biggest donor to the Trust Fund for Victims and underlined the importance of the Fund in addressing gender-related issues in the aftermath of atrocities.  Furthermore, the Ambassador observed that the Court has made great achievements in ensuring accountability for sexual and gender-based crimes, as highlighted by the conviction in the Ntaganda case.  He welcomed the proposed policy paper on gender persecution and commended the inclusive and transparent drafting process, which he stated should serve as precedent for the drafting of other policies.

Next, the Prosecutor himself addressed the attendees.  Prosecutor Khan noted that, while the Court has come a long way in addressing sexual and gender-based crimes, more is to be done in light of the high prevalence and gravity of such crimes.  The Prosecutor highlighted that, in this pursuit, he appointed new Special Advisers and initiated consultations on the policy paper on gender persecution.  He outlined that the consultations with stakeholders, including victims, civil society organizations, and scholars, will be undertaken in two stages: first prior to the drafting of the policy paper, and second after the publication of such a draft.  He further noted that the policy paper will not constitute a final product but is intended to be a living document under constant review.  The Prosecutor extends a call to all to participate and share their experience in the drafting process.

In the remaining time, Heller asked each panelist a question.  First, he asked Véronique Aubert, Special Adviser on Crimes Against and Affecting Children, how the policy paper should address gender-based crimes against children.  Aubert extended two core recommendations.  First, the policy paper needs to capture the diversity of gender crimes suffered by children, for instance, attacks on education, sexual enslavement, or the conscription of child soldiers.  Second, she underlined the importance of employing an intersectional framework to address the diverse identities of children.  In this context she especially underlined that the identities of children are as complex as those of adults, but with one core difference that they vary to a greater extent in connection to age.  She urged that this circumstance is considered during investigations and prosecutions.  She called for close cooperation with experts on the development of children, especially from the respective country to ensure that all specificities of children are taken into account.

Next, Heller addressed Kim Seelinger, Special Adviser on Sexual Violence in Conflict, and asked her how sexual violence fuels discrimination.  Seelinger noted that there is a lot of similarity with the issues raised by Aubert in relation to children and that discrimination always underlies persecution.  She further notes that discrimination, especially based on gender stereotypes, drives sexual violence.  Seelinger highlights that inspiration on how to address this link may be taken from refugee law, where persecution is described as committed against socially constructed groups.  She elaborates that socially constructed roles for men and women often form the basis of type of persecution experienced together with other factors such as religion or ethnicity, thus here too an intersectional approach is required.  She further underlined that sexual violence is not only experienced by women, but also men and members of the LGBTQ community.  

Subsequently, Heller asked Patricia Sellers, Special Adviser on Slavery Crimes, why it is important to look at enslavement from a gender crime perspective.  Sellers described persecution as apt entry point to address slavery crimes before the International Criminal Court.  She added that slavery, defined as the exercise of any or all powers of ownership over another person, and is gender-based.   Further, she identified discrimination as key element of both why individuals are persecuted and enslaved, with an estimate of 99% of enslaved persons also being persecuted.  Thus, Sellers concluded that any policy paper on gender persecution should address the gendered underpinnings of enslavement.  

Lisa Davis, Special Adviser on Gender Persecution, responded to a more general question: why is a policy paper on gender persecution important?  She explained that it is widely known that conflict actors perpetrate crimes amounting to gender persecution under crimes against humanity and identified four core requirements to address them adequately. First, it needs to be understood why such crimes occur.  Second, it is necessary to capture the discriminatory undertones of gender-related crimes.  Third, it needs to be ensured that victim experiences are heard to fully understand the crimes.  Fourth, an intersectional view of gender persecution and discrimination is required.  In her final words, she cautioned that failing to address gender persecution undermines peacebuilding and fails to acknowledge root causes of crimes and conflicts.  She reiterated the Prosecutor’s invitation to stakeholders to participate in consultations and stated that the first official event for this is scheduled for March 18, 2022.

Finally, Heller asked Danny Bradley, a representative of MADRE, what role civil society may play in the drafting of the policy paper.  Bradley underlined the opportunity provided by the policy paper to achieve greater clarity on and publicity for the long-overlooked topic of gender persecution and its potential to strengthen not only the work of the International Criminal Court but also civil society actors.  He saw the role of civil society actors in the drafting process to make the voices of victims and affected communities heard and ensure that the policy paper has a positive impact on the ground.  Bradley further added that the role of MADRE will be to facilitate the participation and engagement of civil society in the drafting process and will to this end host a series of consultations and workshops to show civil society organizations how they can participate and represent their communities best.  To conclude, Bradley noted that a strong policy paper would make a great difference in promoting accountability for gender persecution both at an international and national level.

ASP20 Side Event: Justice for the Rohingya

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

9 December 2021

Name of the Event: Justice for the Rohingya (co-hosted by No Peace Without Justice (NPWJ), Bangladesh and The Gambia)

Report by: Lotte Peters, Junior Research Associate PILPG-NL

Highlights: 

• The panelists highlighted that Myanmar must recognize citizenship for the Rohingya and acknowledge acts of genocide committed against them.

• Ms. Yasmin Ullah emphasized the need for more rehabilitation efforts in close consultation with Rohingya survivors.

• The speakers agreed on the international community’s responsibility to hold Myanmar accountable through multiple international legal avenues.

Speakers:

• Ms. Alison Smith, Legal Counsel and Director of the International Criminal Justice Program, NPWJ;

• Mr. Hussein Thomasi, Solicitor General and Legal Secretary of Attorney General’s Office and Ministry of Justice of the Republic of The Gambia, Co-Agent in the case of the Republic of The Gambia vs. the Republic of the Union of Myanmar before the ICJ;

• H.E. Ambassador Shahidul Haque, Professorial Fellow, South Asian Institute of Policy and Governance, North South University Dhaka;

• Ms. Yasmin Ullah, Rohingya social justice activist, Rohingya Diaspora (Toronto);

• Mr. Tun Kwin, President of the Burma Rohingya Organization (UK), Rohingya Diaspora (London)

Summary of the Event: 

Mr. Hussein Thomasi, delivering opening remarks, emphasized that today, we are witnessing the genocide of the Rohingya in Myanmar, and must use our voice to condemn their oppression and stand for justice.  He described The Gambia’s action against Myanmar before the International Court of Justice (ICJ) for violations of the 1946 Convention on the Prevention and Punishment of the Crime of Genocide.  At the request of The Gambia, the ICJ ordered Myanmar to take provisional measures to protect the Rohingya people from genocidal acts.  Thomasi indicated the importance of this decision, which was celebrated by human rights defenders from all over the world.  However, he critiqued the Myanmar government for not complying with these provisional measures, despite their binding nature.  He urged the United Nations Security Council to take up the issue.

The second speaker, Yasmin Ullah, underlined that the role of Rohingya survivors in bringing about justice is still superficial; more must be done to ensure that survivors are meaningfully consulted by both state officials and the international community. Although Ullah believed that retributive justice is necessary and important, she noted the limitations of international judicial mechanisms.  Therefore, she argued, there should be greater focus on the rehabilitation of survivors.

Tun Khin described the variety of legal efforts currently underway to ensure justice for the Rohingya people.  He specifically highlighted the help of the Independent Investigative Mechanism for Myanmar (IIMM) and the cases at the ICJ and ICC, but was determined to pursue as many legal pathways as possible.  For instance, he expressed hope for a case based on the principle of universal jurisdiction.  Further, he critiqued the international community for failing to take adequate steps to put an end to the crimes against the Rohingya.

H.E. Ambassador Shahidul Haque was the third speaker, who emphasized the complexity of geopolitics in Southeast Asia.  He found that Myanmar has been a site of armed conflict for a long time, such as during World War II.  He noted how the Myanmar-Bangladesh-India trijunction creates a different dynamic in geopolitics and violent activities.  H.E. Mr. Haque reiterated that the focus has been on these geopolitical interests, rather than where it should be, which is on humanity and the Rohingya people’s human rights.

Alison Smith proceeded to ask the panelists for their impressions of the National Unity Government of Myanmar’s stance on justice and accountability.  Khin argued that although the National Unity Government has called for inclusive justice, they have not recognized the reality of what is happening to the Rohingya.  He highlighted that the Rohingya want to be adequately politically represented, and, most importantly, to be granted citizenship.  Ullah agreed: the National Unity Government has failed to address the genocide, avoiding using the word altogether.

Smith concluded the event with one final question: what can we do to support the Rohingya in their quest for justice?  H.E. Mr. Haque emphasized the importance of amplifying the voice of the Rohingya people.  Otherwise, he was afraid that the camps that the Rohingya people reside in will be taken over by the Arakan Rohingya Salvation Army (ARSA), who are creating instability there.  Khin urged states to follow the lead of Canada and The Netherlands in providing support to The Gambia’s ICJ case.

ASP20 Side Event: Moving forward: Enabling a child-centered approach at the ICC and beyond

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

9 December 2021

Name of the Event:  Moving forward: Enabling a child-centered approach at the ICC and beyond (co-hosted by: Argentina, Belgium, Sierra Leone, Office of the Prosecutor, Save the Children, and Justice Rapid Response)

Report by: Claire Kaula, Junior Research Associate PILPG-NL

Highlights: 

• Currently, children are “invisible” in international criminal proceedings even though many children are victims of international crimes.

• Children are capable of taking part in legal proceedings and telling their story.

• Five years after the launch of the Officer of the Prosecutor (OTP) Policy Paper on Children in 2016, the next step for the ICC is to implement the policy.

Speakers:

• Veronique Aubert (Moderator), Special Adviser on Crimes Against and Affecting Children, Save the Children United Kingdom;

• H.E. Roelants de Stappers, Ambassador and Permanent Representative of Belgium to the International Institutions in The Hague;

• H.E. Alhaji Fanday Turay, Ambassador and Permanent Representative for Legal Affairs, Permanent Mission of Sierra Leone to the United Nations (New York);

• Karim Asad Ahmad Khan QC, Prosecutor, International Criminal Court;

• Bassam Khabieh, photographer, “Witness to War: The Children of Syria”;

• Pim Kraan, Chief Executive Officer, Save the Children Netherlands; 

• Justice Miatta Maria Samba, Judge, International Criminal Court;

• Nina Suomalainen, Executive Director, Justice Rapid Response;

• Shyamala Alagendra Khan, Gender and Child Rights Advisor, Independent Investigative Mechanism for Myanmar (IIMM); former Assistant Director of Public Prosecutions of Fiji;

• Dr. Daryn Reicherter, Director, Human Rights in Trauma Mental Health Laboratory;

• H.E. Mario Oyarzábal, Ambassador and Permanent Representative of Argentina to the International Institutions in The Hague

Summary of the Event: 

H.E. Roelants de Stappers of Belgium opened the event by highlighting the fact that many children witness and are victims to atrocity crimes but they are invisible in the courtroom.  He expressed that more needs to be done to ensure that international tribunals remain focused on children, and that policies and best practices related to crimes affecting children  are implemented. 

Following, H.E. Alhaji Fanday Turay of Sierra Leone also emphasized that there are alarming rates of violations against children.  He argued that while the international community recognizes justice and accountability for these crimes, in practice children remain invisible.  He expressed his disappointment that after the launch of the OTP Policy Paper on Children in 2016, the Assembly of States Parties has not further focused on addressing the challenges of investigating and prosecuting international crimes related to children.

Next, Prosecutor Karim Asad Ahmad Khan QC expressed his honor to speak on this “extremely timely and absolutely essential topic.”  He said that focusing on children in prosecuting international crimes is his priority.  He acknowledged the 2016 OTP Policy Paper but said that the next challenge is implementation.  So far in his time in office, he noted that he has moved the Gender and Children P4 to report directly to the two Deputy Prosecutors next year, and he has plans for the Gender and Children Unit to review investigation plans.  He said he also wants to hire two new advisors on gender and children, and believes that the key way to recognize children as rights holders is to have custom approaches for them. 

The event then had a special presentation, exhibiting the images taken by photographer Bassam Khabieh of children in the Syrian War.  Select images can be seen on his website here: https://www.witnessestowar.com.  He expressed how his photographs only capture a few moments and that there are many more memories of the children not captured.

Then the panelists discussed their expertise.  First, Pim Kraan presented the barriers in the accountability of crimes violating children.  These include the attitudes and stereotypes towards children, such as they cannot be credible sources, and the lacking financial funds to build support structures. 

Second, Justice Miatta Maria Samba offered suggestions of how to include children in international court proceedings.  She expressed that if children need to testify in person they should have the opportunity to familiarize themselves with the courtroom before.  However, she thinks a better solution is for children to testify without being involved in formal proceedings and offered multiple ways to do this.  She also expressed the need for expedited trials where children are involved so they can offer testimony before they forget and receive remedies before they are adults. 

Third, Nina Suomalainen expressed the need for experts on children.  She said it is critical to keep a child-focused lens in all investigations, and expressed that crimes against children are not limited to child soldiers.  International criminal crimes against children are a part of many different contexts, she said.  Furthermore, she expressed that children's participation in legal proceedings should not be based on whether their testimony will do well, but we need to think of other creative ways to include children.

Fourth, Shyamala Alagendra Khan shared her experiences of including children in international legal proceedings of the Special Court for Sierra Leone.  She said that the international community cannot know the true impact of crimes against children without listening to them.  One of her main suggestions to the ICC is to implement the expertise and guidelines that domestic legal systems have for children. 

Fifth, Dr. Daryn Reicherter, confirmed what many panelists said that there is a great need for experts to provide psychological support for children in justice mechanisms.  He noted that with such support children are able to and should be included.  He expressed that with expert help and special care there need not be any fear of re-traumatizing children by having them participate in legal proceedings.  He emphasized that children are capable of telling their story and have their voices be heard.

The event closed with H.E. Mario Oyarzábal who expressed the importance of having a child-focused lens for international criminal proceedings, and presented examples of Argentinean domestic child-focused guidelines that the international community could be inspired to implement.

ASP20 Side Event: The Application of the Rome Statute of the International Criminal Court to Cyberwarfare

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

9 December 2021

Name of the Event: The Application of the Rome Statute of the International Criminal Court to Cyberwarfare (co-hosted by: Argentina, Austria, Belgium, Costa Rica, the Czech Republic, Estonia, Liechtenstein, Luxembourg, Portugal, Spain, and Switzerland)

Report by:  Lilian Srour, Junior Research Associate PILPG-NL

Highlights:

• Members of the Council of Advisors (the Council), authors of the Report on the Application of the Rome Statute of the International Criminal Court to Cyberwarfare, discussed the main findings, offering valuable insights on the applicability of the Rome Statute to cyberwarfare.

• The Council is in agreement that, at present, the Rome Statute does not need to be amended to encompass cyber warfare under the crimes listed. 

• To clarify remaining ambiguities relating to the applicability of the Rome Statute to certain cyber warfare, panelists suggested that the Office of the Prosecutor issues a Policy Paper on the matter of cyberwarfare, or perhaps to establish a state-led working group in the ICC addressing cyber warfare.

Speakers:

• Christian Wenaweser, Permanent Representative of Liechtenstein to the United Nations;

• Oona A. Hathaway, Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School;

• Jennifer Trahan, Clinical Professor at NYU's Center for Global Affairs and Director of their Concentration in International Law and Human Rights;

• Charles C. Jalloh, Professor of Law at Florida International University;

• Matt Cross, Office of the Prosecutor at the International Criminal Court (ICC);

Summary of the Event:

Christian Wenaweser, Permanent Representative of Liechtenstein to the UN, opened the side event.  The event was dedicated to discussing the Council of Advisers’ Report on the Application of the Rome Statute of the International Criminal Court to Cyberwarfare.   Wenaweser highlighted the importance of having this conversation in light of the upcoming 20 year anniversary of the Rome Statute.  In emphasizing that “online cyber operations have become an unfortunate and nearly daily occurrence, they do not occur in a law-free domain, but are subject to various bodies of international law, including the Rome Statute”, he underlined that such crimes could be investigated and prosecuted at the International Criminal Court (ICC) without an amendment of the Rome Statute.

Oona A. Hathaway, Council Member, began her comments by emphasizing that the crime of aggression is addressed first in the Report, recognizing its centrality in answering questions on the applicability of crimes to the cyber realm.  Hathaway explained that there were many areas where the Council was in agreement, and other areas where there had not been sufficient development in the law to allow for consensus.  She said that “one clear area of certainty is that the prohibition of the use of force does apply in cyberspace”, explaining that there could be a violation of the crime of aggression.  Council advisors noted that cyber warfare does not fit into the state-centric focus of the act of aggression, however, concluded that article 8bis of the Rome Statute contains a non-exhaustive list, allowing the ICC to find other uses of force that constitute an act of aggression.  Hathaway further elaborated on discussions surrounding the threshold of “manifest violation” under article 2(4) of the UN Charter, underlining that greater clarity is needed on this in the cyber context.

Jennifer Trahan, Council Member, began by repeating that the Council is in agreement that no amendment of the Rome Statute is necessary and that “a severe enough cyber-attack has the potential to fit into each of the crimes”.  She further acknowledged that there are questions as to what  “severe enough” and to reach a “threshold” constitute.  She explained the different forms of cyber-attacks, ranging from attacks committed solely in the cyber realm to attacks that constitute elements of a physical attack.  In answering the question of how genocide could be committed solely through a cyber-attack, Trahan provided an example of an attack committed on the cooling system of a nuclear power plant, which could result in the release of radiation.  After providing in-depth insights on the different elements of cyber-attacks and the findings of the Report, Trahan suggested two ideas moving forward: (1) issuing a policy paper by the Office of the Prosecutor (OTP) on the applicability of cyber-attacks to the Rome Statute, or (2) the OTP assessing questions relating to, for instance, the destruction of data, when discussing the element of gravity under the Statute.  In conclusion, Trahan suggested the ICC increase its expertise on the matter of cyber-attacks, considering the unfortunate possibility that these may take place in the future.

Charles Jalloh, Council Member, began by explaining the significance of the rule of law for the maintenance of international peace and security, pointing to the dramatic progress in technology over the last years.  He noted that, despite the positive progress, this also creates the possibility of malicious cyber operations that could lead to the commission of crimes under the Rome Statute, raising again the question of the threshold for the application of the international criminal law regime.  Jalloh discussed the findings of the Report concerning how, in the view of the Council, the crimes against humanity provision in article 7 of the Rome Statute may apply to cyber warfare.  After providing an insightful and in-depth account of the relevant elements, Jalloh recounted the findings of the Report, whereby the Council concluded that cyber operations could potentially satisfy each of the contextual elements of crimes against humanity.  Nonetheless, he acknowledged that certain challenges remain, for instance, relating to proving intent.  Conclusively, Jalloh suggested the appointment of a Special Advisor on cyber warfare, or a state-led working group in the ICC.  

The last speaker, Matt Cross, from the Office of the Prosecutor, identified three strong themes in the Report.  First, the Report views the Rome Statute providing new insights on how the ICC can remain useful in current matters, such as cyber warfare.  Second, the Report stresses connections between international law more generally and the Rome Statute.  Cross explained that, when discussing cyber conflict, international criminal law “is one aspect of that discussion, but it is a much broader discussion”, emphasizing that other fields of law, such as public international law and humanitarian law, are all evolving to deal with this new challenge together.  In this regard, he said that the Report stresses areas where scholarship has reached some degree of consensus, allowing for reflection on discussions in other areas.  Third, the Report provides food for thought on how the Rome Statute may be adapted to better deal with these new challenges. In discussing article 8 of the Rome Statute relating to cyber conflict in war crimes, Cross explained that, although the Report recognized that conduct in the cyber realm can amount to war crimes, “that does not necessarily mean this is going to happen very often”.  

Wenaweser ended the event by mentioning that 2022 will be an important year to talk about the relevance of the Rome Statute, which has “stood the test of time”, particularly with a focus on its applicability in the cyber realm.