ASP18 Side Event: Victims’ Participation: Lessons for the future

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 3  (4 December 2019)

Name of the Event: Victims’ Participation: Lessons for the future (Side Event co-hosted by Italy and Chile)

Overview by: Kelly van Eeten, Junior Research Associate PILPG-NL

Main Highlights:

• Paolina Massida noted that victims should be considered full-fledged parties to the proceedings at the ICC and should not be referred to and sees an as ‘participants’.

• Francisco Cox stated that victims should have a more central role in the Court. 

Summary of the Event:

H.E. Ms. Maria Teresa Infante, ambassador of Chile, opened the event underlining the importance of victim participation. She introduced the three panelists: Mr. Cuno Tarfusser, former judge at the ICC,  Mr. Francisco Cox, representative of Victims at the ICC, and Ms. Paolina Massidda, Principle Counsel on the Office of the Public counsel for victims.

After the introduction the presentations started with a video addressing the importance of justice for victims. The video showed several victims, speaking about justice and what it would mean to them if they got the opportunity to speak before the Court. They stated that impunity is not an option and stressed the importance of reparations. 

Cuno Tarfusser started by stating that he has always been in favor of victim participation. From his personal experience he witnessed multiple times that victim participation is part of a healing process. It can provide victims with a feeling that the authorities are behind them and give credit to what they are saying. However, from the perspective of a criminal lawyer victim participation must be in balance with the primary function of criminal proceedings. Mr. Tarfusser said that he believes that we should try to find a better balance. According to Mr. Tarfusser, the fact that victim participation is in the Statute, but it is not regulated makes that the judges have to decide about the concrete implication. This creates different practices which is not the best way to do it. 

He further raised three issues on victim participation: 1) unclarity about the definition of a victim, 2) the scope of participation, and 3) deadlines. He finally stated that it cannot be that victims can request to participate at any moment during the proceedings as he believes there must be a deadline for requesting participation. 

Francisco Cox opened his speech by talking about this experience in the Ongwen case. He stated that he disagrees with the fact that the definition of victims is unclear, since according to him all that are affected by a crime fit into the concept of a victim. He continued his story by stating that victims should be at the center of the courtroom and that in the villages he went to speak with victims, the wish to participate among victims is huge. It might feel like distant justice to them, but is probably the only justice they will get. Therefore it is also part of their healing process to see justice happening. 

Paolina Massidda took over after this and stated that she had mixed feelings about the statements by her fellow panelists. She agreed that it is important to understand the scope of the participation and that participation of victims is important. She finally stated that victims should be full-fledged parties to the proceedings and also be able to appeal decisions.

ASP18 Side Event: Genocide Victims in Iraq and the Middle East Testify

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE 

Day 3 (4 December 2019)

Name of the Event: Genocide Victims in Iraq and the Middle East Testify (Side Event hosted by the Kurdish National Coalition for ICC)

Overview by: Rachel Grand, Junior Research Associate PILPG-NL

Main Highlights: 

• Abdullah Nawrolly urged for accountability for companies that sold chemical weapons to Saddam Hussein.

• Participants called for the international community to acknowledge the international crimes the Kurds have suffered from as well as reparations for Kurdish victims.

Summary of the Event:

The session opened with a film about the Kurdish genocide. The film highlighted the centuries of violence the Kurds have endured. From the Halabja chemical attacks to the Anfal genocide to ISIS’s mass displacement of Kurdish Yezidis, to Iran’s hangings, to the abduction of Barzani tribesman, to the killing of Kurdish kolbars, to their persecution in North Kurdistan and Turkey, to the current violence the Kurds are facing in North-Eastern Syria. The video also showed images of victims’ bodies covered in burns from chemical weapons.    

The former governor of Halabja City, Abdullah Nawrolly, spoke about his relatives, who were some of the 5,000 people killed in the chemical bombings in Halabja. He said there are remainings of chemical attacks, injured people who need more medical attention, displaced people, and children missing. Nawrolly called for the companies who sold the chemical weapons to reimburse the victims, the Iraqi government to stop using chemical weapons, assistance for finding missing children, the establishment of a psychological care center, the creation of a genocide research center, and international support in reconstructing the city.

I. Muhammed Ayad, a lawyer, and representative of the Iraq people of Kurdistan, spoke next. He discussed the history of genocide in Iraq and the problems the country faces in holding individuals accountable in the Iraqi courts. Ayad explained how the Rome statute principles are the basis for the Iraqi laws on the court. He argued that there has not been the proper implementation of such laws. Therefore, victims have struggled to receive compensation from the courts. He went on to explain how the companies who supplied Saddam Hussein with chemical weapons must be held accountable and provide victims with compensation.  

Another lawyer for the Northern Kurd area in Syria spoke next on how the Kurds still consider themselves victims even after defeating ISIS. He covered the need to protect all ethnic and religious groups inside Syria through a resolution with neighboring states and the United Nations. Additionally, he noted that the ICC must recognize the crimes against humanity, genocide, and war crimes committed in Syria. He concluded by calling on powerful countries to promote international security on the ground rather than escaping their responsibilities to hold all individuals who commit atrocity crimes accountable.    

Hymn Haseeb Qader Aljabbari, from Kirkuk, discussed the previous suppression of Kurds in Kirkuk and the re-occurrence of similar policies today. Kirkuk is a disputed area according to Article 140 of the Iraqi Constitution. Historically the area has been shared by the Kurdistan Regional Government (KRG) and the Iraqi government. However, beginning in 1960, the Iraqi government brought Arabs from other parts of the country to Kirkuk to cause a demographic shift. Furthermore, they prohibited the Kurdish language and took lands from Kurds. Throughout this time, there was a massive decrease in the Kurdish population and an increase in the Arab population. Article 140 of the Constitution was supposed to return the land to the Kurds. Still, in 2003, the Iraqi government brought troops back into the area and began re-enacting similar policies from the 1960s using military force. Hymn Haseeb Qader Aljabbari warned that Kirkuk is a ticking time bomb. 

The final speaker, Azad M. Ameen Abdalrahman, told the story of how Iraqi forces killed 480 of the 500 inhabitants from his village in May 1998, in what he calls “the second Halabja.” Ameen Abdalrahman called for the international community to recognize this mass killing as an act of genocide and visit his village to see the atrocities victims went through.           

The event concluded with a brief discussion on the media, NGOs, and security agency investigators' poor treatment of Yezidi victims of sexual violence. 

ASP18 Side Event: Book Launch - Défense devant les juridictions pénales internationales

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 2 (3 December 2019)

Name of the Event: Book Launch “Défense devant les juridictions pénales internationales” (Side Event hosted by the Democratic Republic of Congo) 

Overview by: Francisca De Castro, Junior Research Associate PILPG-NL

Main Highlights:

• The book “Défense devant les juridictions pénales internationales” was written with the objective of filling a gap in available French literature on defenses. 

• The book is composed of a first part which is a comprehensive academic review on the relevant framework for international penal law, as well as a practitioners’ approach on how to build a strong defense considering the problems, traps and solutions.

Summary of the Event:

Mr. Brice Van Erps opened the discussion with an English introduction into the book, discussing the composition. The first part of the book is an academic and comprehensive review of the framework of international penal law. The second part is more of a guide for practitioners for building a solid defense in front of international jurisdictions. 

Mr. Philippe Currat presented the book in French and gave an insightful approach into the different difficulties he had encountered which led to the development of this book, including the lack of available literature in French on international penal law. Furthermore, he emphasized how difficult it is to talk about defenses, particularly relating to defenses in international courts as it is very technical. Mr. Currat touched upon the purpose of this book to serve as a guide to compile the experiences of attorneys who passed the bar in different countries. Attorneys underlined the difficulties of building a strong defense in international jurisdictions because of the different experiences from different national judicial trainings. Finally, a point that was extensively stressed was the importance for all parties of building a strong defense. They discussed that having a solid prosecution is also important for the defense and this point is equally stressed in the book. 

ASP18 Side Event: Draft Convention on Crimes Against Humanity

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 2 (3 December 2019)

Name of the Event: Draft Convention on Crimes Against Humanity (Side Event hosted by Germany)

Overview by: Emma Bakkum, Senior Research Associate PILPG-NL

Summary of the Event:

Unlike genocide and war crimes, crimes against humanity were never codified in a specific convention. The International Law Commission (ILC) is working towards exactly this: a convention on crimes against humanity. Alongside the ASP, representatives of States Parties and other interested came together to discuss the status of the draft convention on crimes against humanity.

 Sean D. Murphy (President of the American Society of International Law, US Member of the International Law Commission and Special Rapporteur for Crimes against Humanity) discussed the progress and next steps of the draft convention on crimes against humanity. He mentioned that of the States Parties to the Rome Statute 40% has no national law in place regarding crimes against humanity. While this is partly explained by the fact that the Rome Statute does not in an operative provision oblige states to adopt national law, the ILC felt that states could do more to accurately criminalize crimes against humanity in their domestic systems.

The ILC started working on the project in 2014, with the clear aim to develop a draft treaty on the prevention and punishment of crimes against humanity. In August of this year, the Report of the International Law Commission on the work of the seventy-first session (Chapter IV), presented the draft text of 15 articles, which includes a definition of crimes against humanity and an obligation on states to refrain from committing and to prevent crimes against humanity. The draft convention further includes provisions on jurisdiction, rights of victims, extradition procedures, and interstate dispute settlements. 

When the Sixth Committee of the UN (legal) debated the ILC’s report in October, many states strongly supported moving forward with a convention. However, some states expressed concern about timing. Nonetheless, Mr. Murphy expressed hope towards the adoption of a convention on crimes against humanity for several reasons. For instance, developing an international treaty would encourage and assist states in adopting national legislation, in a harmonizing way. This would furthermore alleviate the strong focus on international criminal courts to prosecute crimes against humanity in line with the complementarity principle. Mr. Murphy also noted that adopting a convention would take to a further level the issues of stigmatizing crimes against humanity. Moreover, the convention could pose a solution to some of the problems faced with inter-state cooperation, both with regard to states that are a party to the Rome Statute and those that are not. Mr. Murphy finally added that the draft convention is not so unusual or different from other treaties as the ILC replicated the type of languages found in existing treaties. 

Larissa van den Herik (Vice-dean Leiden Law School and professor of public international law at the Grotius Centre for International Legal Studies at Leiden University) spoke about the relation between this initiative and the initiative for a Multilateral Treaty on Mutual Legal Assistance and Extradition for Domestic Prosecution of the Most Serious International Crimes (MLA-treaty), as concerns about overlap between the initiatives had arisen. Ms. van den Herik stated that these two initiatives do not have to be mutually exclusive - they are not only compatible but even mutually reinforcing.

During the discussion, the best way forward with the draft convention was discussed and Joachim Bertele (Director of International Law, Federal Foreign Office Germany) left the participants of the side event with the question of what could be achieved from today until next year. 

ASP18 Side Event: Raising the Bar- Improving the Nomination and Election of Judges to the ICC

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 2 (3 December 2019)

Name of the Event: Raising the Bar – improving the nomination and election of judges to the international criminal court (Side Event co-hosted by South Africa, Uruguay, and the Open Society Justice Initiative (OSJI)). 

Overview by: Hester Dek, Intern PILPG-NL

Main Highlights:

• James Goldston emphasized that qualifications should be more important than the campaign during the election process. 

• Judge Ekaterina Trendafilova underlined the importance of judicial education: “if cases are in the hands of judges who do not know how to handle evidence, the outcome will never work”. 

• Alejandra Vicente noted that the ICC is doing better at gender parity than most UN bodies, the ICJ, and some regional human rights courts, however progress is not always sustained.

Summary of the Event:

“This debate is quite belated, it was due a long time ago” 

This side event was organized in the wake of the latest report by the Open Society Justice Initiative (OSJI) “Raising the Bar: Improving the Nomination and Selection of Judges at the International Criminal Court”. The panel consisted of James Goldston (Executive Director OSJI), Judge Ekaterina Trendafilova (President, Kosovo Specialist Chambers), Niels Blokker (Professor of International Institutional Law, Leiden University), and Alejandra Vicente (GQual Secretariat member and Head of Law, REDRESS). The event was chaired by Angela Mudukuti (Senior International Criminal Justice Lawyer, Wayamo Foundation).

James Goldston commenced by discussing the report and emphasizing that until now candidates with the strongest campaigns, rather than the strongest qualifications, have proven most likely to win.

Judge Ekaterina Trendafilova continued the discussion by stressing the importance of judicial education, questioning how one could handle difficult legal matters without sufficient knowledge of the law, as parties are always testing the competence of the judges. “Unless we turn ourselves inside to see what we can do to improve the way judges do their job, we are not going to improve the perception of an outsider of the ICC”. She stressed that “this debate is very much belated, it was due a long time ago”. She highlighted the importance of judges being educated consistently: “if cases are in the hands of judges who do not know how to handle evidence, the outcome will never work”.  

Thereafter, Niels Blokker reflected on the question “how typical is the ICC in how the judges are nominated and elected based on your research?”. According to Blokker, there is no prototype, each tribunal is unique. He emphasized the strong presence of civil society at the ICC. According to him, there isn’t enough research on the governance of international tribunals.

Next, Alejandra Vicente discussed the importance of gender parity in tribunals, treaty bodies, and special procedures. She explained that this aim is recognized in treaties, yet it is hardly realised in tribunals. She noted that many countries have only nominated men, using otherwise opaque nomination procedures. On this point of gender parity, Judge Trendafilova pointed out, however, that while gender parity is very important, eventually “you want to be chosen based on your qualifications, not your gender.” 

In assessing gender parity at the ICC, Ms. Vicente responded that the ICC is doing better than most UN bodies such as the ICJ, and some regional human rights courts. If a state wants a chance, they need to nominate women: “it does not allow states to get away with the argument ‘there are no qualified women available in my country’”. She stressed that progress should be more sustained.

Mr. Goldston then referred to the recommendation of the report that states ensure transparent, merit-based nomination processes. Besides that, he highlighted the equitable gender representation, the importance of asking nominees to demonstrate evidence of their legal knowledge, and the need to check fact-check their credentials. 

Lastly, the floor was opened for questions and comments. Questions were raised regarding remuneration for judges, employment security for judges, the requirement of high moral character, and judicial collegiality. On the first question, Mr. Goldstone answered that the issue of remuneration is not a priority at this point. On the question of high moral character, Ms. Vicente responded that previous cases of harassment should be taken into account in the nomination process. Finally, collegiality was said to be important, but with full respect for the independence of the judge.