ASP18 Side Event: Rights of Detainees before the International Criminal Court

18th Session of the Assembly of States Parties to the Rome Statute

Day 4 (5 December 2019)

Name of the Event: Rights of Detainees before the International Criminal Court (Side Event co-hosted by France, Senegal, and the International Criminal Court Bar Association (ICCBA))

Overview by: Hester Dek, Intern PILPG-NL

Main Highlights:

• “Contact with family is a right, not a privilege that should be earned” - Mylène Dimitri.  

• Peter Haynes underlined the absence of the defense bar on the published list of independent experts on the ICC review.

• Mylène Dimitri highlighted the restriction of contact of detainees with their families and its breach of the presumption of innocence. 

• Marie-Hélène Proulx noted the lack of contribution of states to the Trust Fund for Family Visits. 

• Jennifer Naouri highlighted the absence of provisional release granted at the ICC.  

Summary of the Event:

This panel on the rights of detainees before the ICC consisted of Jennifer Naouri, Peter Haynes QC, Marie-Hélène Proulx, and Mylène Dimitri. 

Peter Haynes QC (ICCBA President) opened the event by stating that it was a considered decision to organize this event, as “the section that represents victims is represented well enough, but that of the defense not enough”. He referred to the published list of independent experts for the review of the ICC, which represents (former) judges, prosecutors, etc. but not one person who has ever had a client, has had to visit someone in a detention center, or work under a legal aid scheme. According to Mr. Haynes, it is “not just disappointing, but foolish that the court does not find that the defense bar is worthy of consultation.” 

Mylène Dimitri (Lead Counsel for Alfred Yekatom) discussed restriction of contact of detainees with their families in relation to the principle of presumption of innocence. “If we look at their conditions, it seems like they have lost their presumption of innocence”.  She discusses the current situation, where the court can prohibit, regulate, or set conditions for contact between detainees and their families, if they think that this contact could affect the proceedings. “Sometimes the request for prohibition on contact is requested prior to arrival, portraying the message: not only do we expect you to have committed these crimes, we also expect that you can affect the outcome, we don’t trust you.” According to Ms. Dimitri this breach is a breach of the presumption of innocence and often based on pure speculation, not clear information. “The detainee is put away as someone who is so guilty that there is ground to believe he will harm the victims and hamper the investigation, whereas the situation in the country is out of his control”. She further noted that while restriction on contact recently became the rule, instead of the exception, information on this is not publicly available, making it difficult to do something about the issue.  

Thereafter, Marie-Hélène Proulx (Associate Counsel for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud) first discussed further the presumption of innocence. “There are five current detainees, only one has had a funded family visit. It is a real human drama”. She explains that the court has recognized the right to family visits, no one is disputing this, but that this right is currently not effective. Defendants rights are never a priority, raising the question how one can justify funding everything else, but leave detainees on the side. Only 5 out of 123 states have agreed to contribute to the Trust Fund for Families. 

Next, Jennifer Naouri (Associate Counsel for Laurent Gbagbo) discussed the length of trials, responding to the comment “this would all be less of an issue if the trials would not take so long.” After explaining that the length of a trial is trial-dependent, she highlights that there has been no provisional release granted at the ICC since it exists. She explains how case law allows for the Chambers to look at provisional release, but the language is so vague the judges can just decide not to grant it. Besides that, she raises the issue of a host state having to be willing to accept a detainee, and the relating responsibility. She concluded by proposing to amend the Rome Statute to remove Article 81(3). 

The floor was then opened for questions and comments. The reason for the confidentiality regarding detainees’ contact rights was first considered. Ms. Dimitri responded that this reason is unclear, stating that “confidentiality has become the rule at the ICC, and this has become part of the problem.” Another issue discussed was the question on shortening trials. The first response came from Mr. Haynes, who argued that one of the issues is the possibility for the Court to arrest someone without having confirmed the charges, which according to him should be crystalized on time. Ms. Naouri had a different view on the matter, she argued that this phase was essential, as “you can make a case out of it, you can gain a lot of time.” 

You can watch the full event here.

ASP18 Ninth Plenary Meeting: Adoption of Resolutions

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

Day 5 (6 December 2019) 

Name of the Event: Ninth Plenary Meeting: Adoption of Resolutions

Overview by: Sindija Beta and Kelly van Eeten, Junior Research Associates PILPG-NL

Main Highlights:

• Seven draft resolutions were adopted by consensus, including on the review of the procedure for the nomination and election of judges and the Review of the ICC and the Rome Statute System. 

• The ASP agreed on a budget of €145.62 million for 2020. 

• The ASP adopted a resolution to amend Article 8 of the Rome Statute to include the war crime of starvation in non-international armed conflicts.

Summary of the Event:

The ninth and final session of the 18th ASP saw the adoption of seven resolutions, as well as the report of the Credentials Committee and the report of the 18th ASP.  

First, the report of the Working Group on the Program Budget, as well as the draft resolution on the proposed program budget for 2020 (ICC-ASP/18/L.4), were adopted. While the Court’s proposed budget request for 2020 amounted to €147.42 million and the CBF recommended to approve a budget of €146.21 million, States Parties agreed on a budget of €145.62 million. After adoption, Japan on behalf of Canada, France, Germany, Italy, Japan, Spain, and the UK,  stated that they encourage prioritization of the budget and expressed hope that all organs of the Court will further work on saving, efficiency, and effectiveness. Japan finally underlined the importance of efficient and transparent and accountable implementation of the Court’s budget. Belgium, on behalf of Argentina, Belgium, Costa Rica, Finland, Ireland, Liechtenstein, Luxembourg, Slovenia, Sweden, and the Netherlands expressed its disappointment with the adopted program budget which is lower than the already scrutinized CBF proposal. Belgium noted it would have liked a budget more in line with the needs of the Court and that the approved budget does not match the support for the Court as expressed during the ASP debate. Belgium finally expressed concern regarding the Court’s liquidity. 

The resolutions on the remuneration of the judges of the ICC (ICC-ASP/18/L.9) and on cooperation (ICC-ASP/18/L.5) were adopted by consensus.  

The resolution on the review of the procedure on the nomination and election of judges (ICC-ASP/18/L.6) was also adopted by consensus. Uruguay requested to make a statement. It noted that this resolution is an opportune decision to strengthen the performance of the ICC, emphasizing the importance of geographical representation and gender balance for the Court. 

The ASP President continued with the resolution on amendments to Article 8 of the Rome Statute of the ICC (ICC-ASP/18/L.8), adopted by consensus as well. The Bolivarian Republic of Venezuela requested to make a statement, in which it expressed its concern about the language of the amendment and that the amendment can be misused to unfairly criminalize states. Venezuela expressed its disapproval of the amendment but it would not block the consensus because of its commitment to the Rome Statute. Switzerland and Australia welcomed the adoption of the resolution on amendments to Article 8 to include starvation as a war crime in non-international armed conflict. Both underlined the importance of the amendment and Switzerland encourages all States Parties to swiftly ratify and implement it.

After the draft omnibus resolution (ICC/ASP/18/L.3) was adopted by consensus, the resolution on the Review of the ICC and the Rome Statute system (ICC-ASP/18/L.7) was adopted by consensus. Sierra Leone requested to make a statement, in which it explicitly welcomed the adoption of the review resolution, adding that confidential information obtained by the independent experts should not be disclosed. 

Finally, the ASP adopted the Report of the Credentials Committee (ICC-ASP/18/L.2), in which it was noted that 26 States Parties have not provided information on their representation at the 18th ASP. The report of the 18th session of the ASP (ICC-ASP/18.L.1) was presented and adopted. It was flagged that the final document will be available on the website of the ICC.

After the adoption of all draft resolutions, the Coalition for the International Criminal Court (CICC) in a final statement expressed its strong commitment to the Court and the Rome Statute system. CICC called on the Assembly to renew dialogue with civil society on the essential needs of the Court, as well as provide the Court with adequate resources. CICC welcomed the adoption of the resolution on the review of the nomination and election of judges and emphasized the need to ensure transparent and merit based elections, as well as to reassess the representative character of the Bureau as expressed in the omnibus resolutions. 

With this statement and the adoption of seven resolutions, the ASP President closed the 18th session of the ASP a day early.

ASP18 Eight Plenary Meeting: Introduction of Draft Resolutions

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

Day 5 (6 December 2019)

Name of the Event: Eight Plenary Meeting: Introduction of Draft Resolutions

Overview by: Rachel Grand, Andreina De Leo, and Francisca De Castro, Junior Research Associates PILPG-NL

Main Highlights: 

• The facilitators of several Working Groups introduced the draft resolutions for adoption, including the Omnibus Resolution and resolutions on the budget, cooperation, the remuneration of judges, the review of the procedure for the nomination and election of judges, the review of the ICC and Rome Statute system, and on amendments to Article 8 of the Rome Statute.

• The ASP decided to consider the adoption of these resolutions later that day at 16:00. 

Summary of the Event: 

During the 8th plenary meeting, several draft resolutions were presented to the ASP. The meeting began with a discussion of the omnibus resolution, provided in document ICC-ASP/18/L.3. The facilitator for the Omnibus Resolution, Switzerland, noted that the omnibus resolution highlights the desire to have better geographical representation within the Court. The coordinator expressed hope that the resolution would be adopted by consensus. Following that, the resolution on the proposed budget for 2020, contained in resolution ICC-ASP/18/L.4, was presented. The proposed budget was introduced during the fifth plenary meeting and was further discussed during formal and informal consultations within the Working Group. 

Ambassador Luis Vassy (France) and Ambassador Momar Guèye (Senegal), co-facilitators on cooperation, presented the draft resolution on cooperation, in document ICC-ASP/18/L.5. This resolution underlines the importance of global cooperation with States Parties, NGOs, and civil society. It also includes a provision for the creation of a numeric secure platform that would enhance cooperation between states. Ambassador Momar Gueye pointed to some of the objectives of the provisions which include: the preoccupation of the States Parties on the non-execution of arrest warrants concerning 15 people, the creation of said platform with the objective of enhancing state cooperation which would start working in 2020, the importance of cooperation procedures and mechanisms with the hopes of reinforcing these procedures and the cooperation between the Court, States Parties, other states, and NGOs. Another point put forward was the protection measures for witnesses and their families in need of witness protection, amongst others. 

Mr. Luke Roughton (New Zealand), facilitator for the review of the procedure for the nomination and election of judges, introduced draft resolution ICC-ASP/18/L.6 on the review of the procedure for the nomination and election of judges, stressing the importance of the review for States Parties, confirmed by their willingness to facilitate the adoption of the resolution. He presented the amendment to paragraph 3 of resolution ICC-ASP/3/Res.6, which would modify the date of the nomination period, as well as to paragraph 12. With regard to the latter, the resolution proposes the facilitation of public roundtable discussions with the candidates. Furthermore, he noted that States Parties showed willingness to cooperate and use a constructive approach even with regard to the most controversial issues. He concluded his intervention by hoping for an adoption of the resolution by consensus.

The Vice President of the Assembly, Ambassador Jens-Otto Horslund, introduced the draft resolution on the review of the ICC and the Rome Statute, system ICC-ASP/18/L.7.  The independent expert review will begin in January and will look at all components of the Court. The resolution highlights the important role of States Parties to assist in improving the effectiveness and efficiency of the Court. This resolution was brought through lengthy and difficult negotiations. The Vice President noted that the President appreciated States Parties’ flexibility and willingness to compromise. He reiterated the hope that there will be consensus on this resolution.

A representative of Mexico, on behalf of the Chairperson of the Working Group on Amendments, delivered draft resolution ICC-ASP/18/L.8 on amendments to Article 8 of the Rome Statute. The draft resolution proposed to amend Article 8(2)(e) of the Rome Statute to include the use of starvation as a method of warfare in relation to conflicts of a non-international nature. He pointed out that his amendment is the result of several meetings with the working group on amendments. 

Ambassador Martin Sørby (Norway), Chair of the Working Group on the Revision of the Judges’ Remuneration, discussed resolution ICC-ASP/18/L.9 on the remuneration of the judges of the ICC. He recalled that during the 17th session of the ASP it was decided to establish a mechanism to review judges’ remuneration. To this aim, the Assembly requested the Working Group on the Revision of the Judges’ Remuneration to prepare terms of reference. The Working Group met several times during 2019 to carry out informal consultations aimed at reaching a final agreement. The resolution envisages the establishment of a panel of three members (Vice-President and Coordinator of The Hague Working Group, the facilitator on the budget, and one outgoing and former member of the Committee on Budget and Finance), to be appointed by the Bureau, with the task of facilitating adjustments to the remuneration of judges. The resolution was this put for consideration by the Assembly.

The ASP decided to consider the adoption of the presented resolutions later on Friday, at a plenary meeting at 16:00.

ASP18 Side Event: Justice for Victims of Rights Violations and Sexual Violence in The Gambia

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

Day 4 (5 December 2019)

Name of the Event: Justice for Victims of Rights Violations and Sexual Violence in The Gambia (Side Event co-hosted by the Netherlands, Uganda, Africa Legal Aid (AFLA), La Fondation pour l'Égalité des Chances en Afrique, and the Women's Initiatives for Gender Justice (WIGJ))

Overview by: Hester Dek, Intern PILPG-NL

Summary of the Event:

“Justice for all of those people means Jammeh has to pay for everything he has done.” 

The panel consisted of Reed Brody (Advocate for Yahya Jammeh’s Victims; Counsel, Human Rights Watch), Toufah Jallow (Former Beauty Queen who Inspired the Gambia’s Me Too Movement after Accusing ex-dictator of Rape), Martin Kyere (Sole survivor of West African Migrant Massacre in the Gambia), Fatoumatta Sandeng (Daugther of Slain Gambian Activist Solo Sandeng; Spokesperson, Jammeh2Justice Campaign), and Melinda Reed (Executive Director, Women’s Initiatives for Gender Justice). The event was chaired by Evelyn A. Ankumah (Executive Director, Africa Legal Aid). 

The panel opened with a film by Human Rights Watch called “Truth and Justice in The Gambia” (watch it here).  After Reed Brody applauded his personal hero’s (Toufah, Martin, and Fatoumatta), he discussed avenues for justice for the crimes committed during the Yahya Jammeh era; while the TRRC has had a positive impact, it is time to discuss the question of what will happen now. According to Mr. Brody, the main problem is that Jammeh fled to Equatorial Guinea, which is why the “Campaign to Bring Jammeh and his Accomplices to Justice” (#Jammeh2Justice) was launched. “There is hope that with this campaign there will be sufficient political momentum so that Equatorial Guinea will feel the need to abide by the law.” 

Another video was shown, introducing the next speaker on the panel: Toufah Jallow (watch it here). The video shows her message: “my justice includes a whole system change, so that we can prosecute this man, have our day in court”. During the panel, she spoke about the importance of addressing sexual violence by state officials. Her message was threefold. First, how many women are afraid to speak up about sexual violence they have experienced; “I wondered how many girls are looking for a way to say what has been done to their bodies. I decided to be that person, for myself, and for other young Gambians”. Secondly, that the rape that happened to her was not about sexual desire, but “a display of power, a manifestation of where I stand and he stands, to turn a no into a yes because of who I am”. She explained how perpetrators are aware of these dynamics, they think they are safe, that no one will believe the survivors. Third, that we should not forget sexual violence in the prosecution, “those counts are worthy enough to be included in what will eventually bring Jammeh to justice”.  

The next topic concerned justice for the West African migrants killed in The Gambia. “I am not saying good morning, or good afternoon. J to J (Jammeh to Justice), that is how we greet. Until he is brought to justice we will not rest.” After his introduction, Martin Kyere went on to describe what had happened in 2005, when over 50 West African Migrants were massacred in The Gambia, leaving him as the sole survivor. He explained how he travels from village to village to find the families of those who did not survive. 

Hereafter, Fatoumatta Sandeng took the floor, discussing why The Gambia needs justice. She provided three reasons. First, she explained that it is needed for the state to heal; “as victims we will never heal without justice, without justice we would never reconcile”. Second, she stated that it is needed for young people, in order for them to put their intellectuality into something else; “we need justice to divert our concentration to other things”. Third, to set an example to world leaders, African leaders, Gambian leaders: you don’t rape us, you don’t kill us, you don’t torture us without facing justice. 

Following this powerful speech, Melinda Reed took the floor, providing for a broader understanding of accountability for sexual violence. First, and as already explained by Toufah Jallow, Ms. Reed emphasized the need to enable the disclosure of sexual violence. “Survivors are the experts on sexual violence, not the academics or the legal practitioners”. She explained how accountability requires this conversation as “you cannot find what you are not looking for”. Second, she discussed the issue of hierarchy in cases of sexual violence, which is disempowering to victims. Lastly, she called for action: “let’s not let the challenge of prosecution of sexual violence stop us. We must choose to confront these challenges”.

The event was concluded with a discussion on the need of custody for trial, the effect of the TRRC, and how to get victims disclose information earlier in the trial (Habré case). Fatoumatta Sandeng concluded: “We do not know what the stance of the government is, but we know what our stance is as victims. We own this. We know where we stand.” 

ASP18 Side Event: Accountability for Grave Crimes: the ICC and Complementarity Options for Ukraine

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

Day 4 (5 December 2019)

Name of the Event: Accountability for Grave Crimes: the ICC and Complementarity Options for Ukraine (Side Event co-hosted by Human Rights Watch, International Renaissance Foundation, and the Ukrainian Legal Advisory Group)

Overview by: Sindija Beta, Junior Research Associate PILPG-NL

Main Highlights:

• Panelists recommended that Ukraine should approach the workload of cases realistically and that perpetrators of crimes on all sides should be prosecuted. 

• Panelists indicated that Ukraine needs international assistance in the prosecution of crimes committed. The ICC’s role in the national prosecution, however, should be complementary and not organizational. 

Summary of the Event:

The discussion was started by Deputy Prosecutor General of Ukraine, Gunduz Mamedov who emphasized what Ukraine has already done and will do in the future to bring to justice the perpetrators of crimes against humanity in committed Ukraine. He noted that the prosecutor’s office has detected numerous human rights and humanitarian law violations in Crimea since 2014. For the first time in history the prosecutor’s office has sent these outcomes to ICC. Mr. Mamedov acknowledged that the problem, however, is that law and enforcement bodies do not have any experience in prosecuting such crimes. He introduced the new department which was made to create a unified system for prosecution of crimes and conduction of investigations. Mr. Mamedov concluded by stating that Ukraine is actively working on the ratification of the Rome Statute and is willing to show continuous support to the ICC.  

Nadia Volkova, director of Ukrainian Legal Advisory Group (ULAG), noted that ULAG has been involved in documenting war crimes and crimes against humanity since 2015. She expressed her gratitude to the work done by the Prosecutor’s Office and that Ukraine continues with the cases. Nevertheless, Ms. Volkova flagged that the issues they have encountered require international assistance as national authorities do not have sufficient knowledge and expertise. She particularly outlined the need for investigators, judges, prosecutors, and information sharing from war crimes units in other states. 

Co-founder of Guernica 37 International Justice Chambers and former Counsel to Chief Prosecutor in Bosnia and Herzegovina, Toby Cadman pointed out that the primary responsibility of prosecuting international crimes lies with the national authorities. In his opinion, the Bosnian model for prosecuting international crimes is one of the most successful models in theory. He particularly pointed to the setting up of the process and the strategy developed. Mr. Cadman highly emphasized that the proceedings must be national and with only a supportive element from the international community. He furthermore stressed that Ukraine must realistically approach the workload they have and must be honest with the victims by saying that not all crimes will be prosecuted. Lastly, he advised the Ukrainian colleagues to develop a nation-wide strategy for how these cases will be conducted and what the involvement from the international community will be prior to commencement of the proceedings. 

Associate director of International Justice Program in Human Rights Watch, Elizabeth Everson spoke about the potential role of ICC in the process. She expressed her concern about cases where the government’s lack of political will prevents international crimes cases from being prosecuted. Ms. Everson noted that the ICC should be involved in the Ukraine case and act as a supplementary organ if the national authorities are unable or unwilling to proceed with the prosecutions. 

Finally, the speakers discussed the importance of fairness and transparency, as well as the impartiality of the prosecution in Ukraine. They agreed that criminal cases must be opened against the perpetrators of all sides – Ukrainian, Russian, as well as the separatist group. Toby Cadman reiterated the need to be selective as to whom Ukrainian authorities choose for assistance and that they must pay attention to possible language barriers.