Along with other Intlawgrrls, I attended the 17th session of the Assembly of States Parties (ASP) of the International Criminal Court at The Hague, as a delegate of the Public International Law and Policy Group. This post, which will contribute to the Intlawgrrls Symposium about this year’s ASP, will focus on events, sessions and discussions which took place during the second half of the ASP, from December 10-12.
Several themes emerged during this year’s ASP. The first (perhaps unofficial) theme included the selection process to be adopted for the search of the next ICC prosecutor. As many of our readers know, the current prosecutor, Fatou Bensouda, will complete her term as the court’s top prosecutor by June 2021. Prosecutor Bensouda’s shoes will be large to fill, and I witnessed numerous official and unofficial discussions regarding the search process for her replacement, including a briefing by the ASP President Kwon to the NGO delegates. It is fair to say that no definitive conclusions have been reached by anyone at the ASP regarding the timing of the search, or the composition of the search “committee.” At the NGO briefing by ASP President Kwon, I publicly reminded President Kwon to remain mindful of the need for gender diversity when considering candidates advanced by various state parties to the court. Many of our readers may recall that, unbelievably, the list of judicial candidates for the residual mechanism of the Yugoslavia and Rwanda tribunals, recently released by the U.N. General Assembly, included no female candidates (see Intlawgrrl Leila Sadat’s post on this). I politely reminded President Kwon of this fact and asked him to remain committed to ensuring respect for gender diversity in this important search process.
The second theme of the ASP included the role of victims in ICC proceedings. Several side events focused on the role of victims (“Realizing Victims’ Right to Reparation at the International Criminal Court,” “Victims at the Heart of Justice: Reflections on Victims’ Participation at the ICC”), and a plenary on December 11th was on “Achievements and challenges regarding victims’ participation and legal representation after 20 years of the adoption of Rome Statute.” At this Plenary, several recommendations emerged, ranging from the need to have concrete organs and offices at the ICC dedicated to working with victims, to the idea of engaging local legal professionals and pro bono bar association to help with the representation of victims at the court, as well as soliciting victims to help the court on the operational and logistical levels in the field. Criticisms emerged as well – one commentator argued that victims’ “success” at the court should not be tied to particular criminal defendants, and that the ICC should focus on providing justice for the victims and not on reparations (because most criminal defendants appearing before the court are indigent and because any monetary reparations that the court could provide to victims will be very modest).
Last but not least, a third theme of the ASP included cooperation between the court and national jurisdictions, as well as other tribunals. A side event on December 11th focused on “Complementarity and Cooperation Revisited: What role for the ICC in supporting national and hybrid investigations and prosecutions?” Several other side events discussed cooperation issues as well and have already been highlighted by previous Intlawgrrls posts. In sum, the “consensus” regarding the topic of cooperation at these various events and discussions seemed to be that national jurisdictions will have to play the most significant role in the prosecution of atrocity crimes, and that capacity building of national jurisdictions will remain crucial in the decades to come. ICC is a court of last resort- built on complementarity principles, limited in its resources, constrained through jurisdictional requirements, and designed to prosecute a small number of defendants. ICC can and should, however, continue to engage in cooperation with national jurisdictions, as well as with other tribunals and investigative bodies (such as the relatively new Syria Mechanism), in order to ensure that the impunity “gap” is continuously narrowing. While cooperation between the ICC and some national jurisdictions can be difficult – in particular, in cases where national jurisdictions fail to ensure due process and fair trials, and where ICC actions can actually endanger particular witnesses, victims, and/or defendants – it remains crucial to encourage cooperation where possible, and to build solid relationships between the court and national authorities.