ICC Assembly of States Parties Symposium: Economic Acts as Criminal Acts

Throughout the 18th ICC Assembly of States Parties, IntLawGrrls is welcoming members of the Canadian Partnership for International Justice as guest bloggers, reporting directly from The Hague. Today, IntLawGrrls welcomes Morgane Greco, an International Studies Master’s degree student from University of Montreal.

MorganeMorgane holds a Bachelor of Public Law and a Bachelor of Political Science from Lyon II University in France. Thanks to the ERASMUS+ Program, Morgane also spent one semester in Nicosia at the University of Cyprus, where she studied the Cypriot post-conflict society. She is currently articling at the United Nations’ Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict in New York and writing a Master’s thesis about sexual violence in the Eastern part of the Democratic Republic of the Congo.

Morgane’s post discusses a December 3rd side-event on “The prosecution of economic and financial crimes: towards an extension of the ICC’s jurisdiction?”. Organized by the

Side-Event Dec 3

(Twitter @AFP-CU)

Association française pour la promotion de la compétence universelle, it featured Mr. Oliver Windridge, lawyer and senior advisor for the UK-based organization The Sentry; Ms. Suncana Roksandic Vidicka, assistant professor at Zagreb University; and Mr. Richard J. Rogers, lawyer and founding partner of the organization Global Diligence. Ms. Elise Le Gall and Laureen Bokanda Masson, attorneys-at-law at the Association française, moderated the discussion.

Panelists addressed whether goals of international law and justice can be achieved if serious and widespread economic criminal acts occurring in pre-conflict, conflict or post-conflict contexts are not prosecuted. They also discussed whether serious economic criminal offences can constitute crimes under international criminal law, and what would be the most appropriate economic offence(s) to be considered as crime(s) under international law.

Grand corruption is a threat to world peace and security…

Definitions of grand corruption

According to Transparency International, grand corruption is “one of the great unresolved legal challenges of our day.” In the United Nations Convention Against Corruption (UNCAC)’s foreword, the Former United Nations Secretary General, Mr. Kofi Annan defined corruption as “an insidious plague that has a wide range of corrosive effects on societies.” It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and enables organized crime, terrorism and other threats to human security. The UNCAC’s foreword also explains that corruption is a key element in economic underperformance, and a major obstacle to poverty alleviation and economic development. Transparency International stresses that grand corruption corresponds to the abuse of high-level power that benefits the few at the expense of the many. The Sentry also defines the term of grand corruption as “a broad range of offenses, including bribery, embezzlement, trading in influence, misappropriation of state funds, illicit enrichment, and abuse of office committed by high-level public officials or senior officers of state-owned entities.”

At the side-event, Mr. Richard J. Rogers precised that such corrupted states are “kleptocracies”, which means, according to the Cambridge Dictionnary, “a society whose leaders make themselves rich and powerful by stealing from the rest of the people”. This definition entirely corresponds to Mr. Rogers’ words, who explained that such states tend to be involved in national and international networks aiming at moving money around and getting wealthier, while the population lives in poor conditions. Ms. Suncana Roksandic Vidicka further explained that grand corruption cannot be characterized as a Third World phenomenon, because the problem is global, depending often on multinational corporations that knowingly exploit, support and profit from kleptocracy, often making huge off-the book payments to corrupt leaders in exchange for deals granting access to natural resources or arms markets.

Characteristics of grand corruption white-collar crime

Grand corruption works thanks to deeply developed national and international networks, and is facilitated by new technologies of information and communication. Such white-collar crimes cause serious and widespread harm to individuals and societies, and also often goes unpunished. Ms. Suncana Roksandic Vidicka pointed out that some companies and business groups are way richer than states, making them highly powerful actors. In its 2011 report titled “The rule of law and transitional justice in conflict and post-conflict societies” the UN Secretary-General explained that transnational organized crime is often rooted in conflict and post-conflict settings, constituting an emerging threat to peace and security, development and the rule of law. Moreover, as Ms. Vidicka enlightened, global corruption is also allowing warlord to sustain longer on power.

… partly responsible for conflict-related sexual violence in the Democratic Republic of the Congo…

 With 80 million hectares of arable land and over 1,100 listed minerals and precious metals, the Democratic Republic of the Congo has the potential of becoming one of the richest economic powers on the continent, and a driver of African growth. Nevertheless, the reality is drastically different. This is the paradox of the Democratic Republic of the Congo.

A state rich in natural resources

As mentioned by the Enough Project report, the Democratic Republic of the Congo’s natural wealth reaches an estimated $24 trillion. Yet, the country has been plagued with armed conflict, political violence, and grand corruption for decades. Serious human rights violations are symptoms of Congo’s long tradition of violent kleptocratic regimes that have repressed civilians and hijacked the state for personal wealth and power purposes. Four minerals have fueled and continue to help sustain armed violence in Congo. During former President Joseph Kabila’s tenure, up to $4 billion per year went missing or were stolen due to the manipulation of mining contracts, budgets, and state assets. This follows the trend set by many Congolese officials through history, including King Leopold and the Belgian colonial authorities, Mobutu Sese Seko, and Joseph Kabila’s father Laurent Desire. These leaders’ international partners have also significantly benefited from this corruption.

One of the poorest countries in the world

In September 2019, the International Monetary Fund had qualified the DRC as one of the poorest countries in the world despite a large endowment of natural resources, while reminding that it has been prone to violent conflict over the years. Throughout the first decade of the 2000s, armed conflict and sexual violence in DRC were increasingly linked to exploitation and trade in “conflict minerals.” In 2000, the United Nations Security Council authorized the establishment of an “Expert Panel” to investigate the links between “illegal exploitation of natural resources” and armed conflict. As Professor Séverine Autesserre argues, such preoccupations with conflict mining and sexual violence became woven into a single narrative of the DRC conflict as caused by “the illegal exploitation of natural resources,” the most significant consequence of which was the “sexual abuse against women and girls.” While mining can be identified as one of the main causes of the Congolese conflict, it should be reminded that this situation is complex and cannot be limited to mineral resources only.

… and should be prosecuted at national and international levels.

At the ASP side-event, all panelists raised important questions related to the prosecution of white-collar crimes. They outlined the existing mechanisms addressing grand corruption and pointed at specific issues hindering the effective prosecution of economic and financial crimes.

Existing mechanisms addressing grand corruption

Some international regulating organizations already exist to deal with these delicate issues: we can cite as an example the organization Financial Action Task Force, which fight money laundering and financing terrorism, pursuant to the 2005 UN Convention Against Corruption.

States have also created mechanisms to address the issue. The United States Department of the Treasury or United Kingdom sanction regime can also target those responsible for human rights violations and corruption. National law enforcement can play a great role, as in the United Kingdom, where account freezing orders can be delivered to stop money from being transferred between accounts.

The difficult prosecution of severe economic and financial crimes

According to Mr. Richard J. Rogers, kleptocrats, understood as leaders who makes themselves rich and powerful by stealing from the rest of the people, fear to get in court if they lose power. While kleptocrats are in power, judges and prosecutors can be reluctant to carry judicial proceedings against them as the judicial body is often corrupted as well.

Ms. Suncana Roksandic Vidicka explained that a majority of illicit operations and economic and financial crimes are only prosecuted at national level. She cited some cases about corporate responsibility in war crimes, such as Khulumani (United States), Sanader (Croatia), Kiobel v. Royal Dutch Petroleum (United States), Lafarge (France), Lundi Petroleum (Sweden), and Guus Kouwenhoven (Netherlands). The assistant professor also pointed out that national authorities can interfere in proceedings carried out at the national level, thus hindering the effective prosecution of these crimes.

 CONCLUSION AND SIDE EVENT OVERVIEW

As emphasized by Ms. Suncana Roksandic Vidicka, corruption is used by state officials to hold on to power. These officials are more likely to be prosecuted when they lose power, as illustrated by the case of former Sudan leader Oman Al-Bashir. In order to hold more individuals in power accountable for those crimes, and to break the illicit networks, civil society needs to advocate for corporate transparency before pressure groups such as the African Union and the European Union. Additionally, the civil society have to push for prosecution both at national, regional and international levels. To that end, Ms. Suncana Roksandic Vidicka presented some proposals of economic and financial offences that could eventually become part and parcel of international law. Such acts could notably constitute serious violations of the 1966 International Covenant on Economics, Social and Cultural Rights, crimes against future generations, economic oppression, indigenous spoliation, illegal enrichment, or grand corruption.

Lawyer Mr. Olivier Windridge seeks accountability for all crimes that have economic and financial aspects. According to him, the world needs a first successful case dealing with economic and financial crimes, at international level. In that respect, fighting white collar crimes before the ICC would be a great step ahead.

 The author’s attendance at the 18th Assembly of States Parties to the International Criminal Court is supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

CPIJSSHRC

ICC Assembly of States Parties Symposium: Day Three

ASP photo

Photo credit: CICC

The agenda for Day Three of the International Criminal Court (ICC) Assembly of States Parties (ASP) included discussions on the 2020 ICC budget, a plenary session on the theme of “Review of the Court” and informal consultations on the annual omnibus resolution, “Strengthening the International Criminal Court and the Assembly of States Parties”.

The budget discussions are always challenging, as the Court is caught between increasing demands for more investigations and prosecutions, and the concerns of states paying assessed contributions to cover the budget. For 2020, the Court is proposing a budget increase of 1.6 per cent over the 2019 budget (€148 million). The Committee on Budget and Finance is recommending a 2020 budget increase of 0.81 per cent. Day Three saw presentations by the ICC Registrar, Peter Lewis, and the Chair of the Committee on Budget and Finance, Mr. Hitoshi Kozaki of Japan. Audit reports were then considered, and consultations followed. Budget consultations among states will continue throughout the week.

The plenary session on “Review of the Court” included statements by the ICC President, Prosecutor and Registrar on the performance of their respective organs, followed by seventeen states and four representatives of civil society. States welcomed the establishment of an Independent Expert Review body to consider and report in 2020 on ways in which the Rome Statute system can be improved. Civil society representatives called for the review process to be transparent and inclusive.

States continued consultations on the omnibus resolution.

It was another busy day for side-events at the ICC ASP, which covered diverse themes. Topics included the rights of indigent detainees to family visits, the war crime of starvation, head of state immunities, the role of European states in strengthening the Rome Statute system, the challenges of pursuing universal ratification, the protection and participation of victims, and the value of a harm-based and victim-centered approach to reparative justice. Events also considered the situations in Colombia, South Sudan, Iraq, and Guinea.

Tomorrow, Day Four will continue with a discussion on cooperation and continued consultations on the omnibus resolution.

ICC Assembly of States Parties Symposium: A Recap of Two Excellent Side Events

As a delegate of the Public International Law and Policy Group, I recently attended the 18th Assembly of States Parties (ASP) to the International Criminal Court (ICC).  In addition to general debates among states parties regarding issues such as funding, election of new judges, and the general well-being of the court, various interesting side events took place, sponsored by states and NGOs.  This post will briefly highlight two such side events – the first on The Hague Principles on Sexual Violence, and the second on Timing and Duration of Decision-Making at the ICC.

The first side event, “The Hague Principles on Sexual Violence – Translating the lived experience of sexual violence survivors into law and policy,” was sponsored by Women’s Initiative for Gender Justice (WIGJ) and by Argentina, Australia, Austria, Belgium, Canada, Chile, Costa Rica, Finland, France, Ireland, Luxembourg, New Zealand, Norway, the Republic of Korea, Romania, Senegal, Slovenia, South Africa, Sweden, Switzerland, the United Kingdom, and Uruguay.

The panel was moderated by Melinda Reed from WIGJ, and panelists included Fatou Bensouda, Prosecutor of the ICC, Patricia Sellers, Special Advisor on Gender to the Office of the Prosecutor, Toufah Jallow, Toufah Foundation, Wayne Jordash, Global Rights Compliance, and Howard Morrison, ICC Judge.  Opening remarks were delivered by the Swedish Director-General for Legal Affairs, H.E., Mr. Carl Magnus Nesser, and closing remarks were delivered by the Ambassador of Australia to the Netherlands, H.E. Mr. Matthew Neuhaus.  Prosecutor Bensouda briefly spoke about her office’s efforts in prosecuting sexual violence offenders, and she emphasized the importance of the Ntaganda case, and this defendant’s conviction for crimes of sexual violence.  Judge Morrison spoke about the difficulty of prosecuting and judging cases involving survivors of sexual violence, who may be unwilling to come forward and testify because of their culture and/or because of the inherent necessity of reliving the trauma which court testimony would entail.  Special Advisor Seller highlighted the importance of case law in understanding how to prosecute future crimes of sexual violence, and Wayne Jordash described some of the difficulties associated with the international prosecution of crimes of sexual violence, as well as the failure to prosecute sexual crimes in the Lubanga cases.  The most poignant moments of this panel, however, included remarks by Toufah Jallow, a young Gambian woman who recently came forward and accused the former Gambian president of rape and sexual violence.  Ms. Jallow, who presently lives in Canada, spoke candidly about the assault, violence, and rape which she suffered at the hands of the then-Gambian president, who, according to Ms. Jallow, used sexual violence against her in order to punish her because she had rejected his offer of employment.  Ms. Jallow emphasized the necessity to use concrete language when describing circumstances of sexual assault, as well as the need to overcome cultural barriers and speak out against rape and sexual assault.  Ms. Jallow described how her own mother, who still lives in the Gambia, presently needed security, and how her mother may still believe that “a good African woman is supposed to remain silent” – event if subjected to rape and sexual violence.  Ms. Jallow confirmed that she has already testified before the Gambian national truth commission, where she has repeated the same accusation against the former president.  Finally, Ms. Jallow urged everyone to consider survivors of sexual violence as activists, and not simply as victims.

Finally, several panelists spoke about The Hague Principles on Sexual Violence, which can be found here: https://4genderjustice.org/wp-content/uploads/2019/11/The-Hague-Principles-on-Sexual-Violence.pdf 

According to some of the panelists, these Principles will hopefully become an important tool in prosecuting crimes of sexual violence.

The second side event, “It’s about time – revising the timing and duration of decision-making at the ICC,” was sponsored by the Wayamo Foundation and Austria, Finland, Germany, the Netherlands, Norway, and the United Kingdom.  Speakers included Christian Wenaweser, Permanent Representative of Lichtenstein to the United Nations, Elizabeth Evenson, Associate Director, Human Rights Watch, Lorraine Smith Van Lin, Post-conflict justice advisor, REDRESS, Shehzad Charania, Director of the UK Attorney General’s Office and International Law Advisor to the Prime Minister’s Office, and Mark Kersten, Senior Consultant, Wayamo Foundation, as moderator.  Panelists addressed the ICC’s perceived inefficiency – the court’s seemingly long disposition of various investigations and cases.  The panelists acknowledged that the ICC has handled a relatively small number of cases since its inception, and that some investigations and cases have taken a long time.  At the same time, the panelists nuanced these remarks by noting that the court was an international adjudicative body with a wide mandate and complex cases, and that because of these unique characteristics, the ICC could not be easily compared to a domestic jurisdiction which may handle cases much more speedily.  The panelists also warned that efficiency should not trump due process rights and that cutting corners within investigations, for the sake of speeding up proceedings, would not be a desirable result.

In addition to the above-described events, this year’s ASP will feature dozens of equally fascinating side events and more general debate among states parties.  Stay tuned.

 

 

 

 

 

 

ICC Assembly of States Parties Symposium: Day Two

FIDH SG at ICC ASP18

Drissa Traoré, FIDH Secretary General, presenting FIDH’s statement to the ICC ASP18, Dec. 3, 2019. Photo Credit: FIDH

The schedule for Day Two of the International Criminal Court (ICC) Assembly of States Parties (ASP) was packed, with a continuation of the General Debate, informal consultations on the draft resolution “Review of the International Criminal Court and the Rome Statute system”, and informal consultations on the 2020 budget on the schedule.

The General Debate continued from Day One, with statements by States Parties to the Rome Statute, observer states and representatives of civil society. Several themes continued from the day prior, including expressions of state and civil society concerns about threats directed against the ICC and the challenges the ICC is facing. Many called for all States Parties to step up their diplomatic support for the Court and to take action.

Another key theme stressed by many speakers is the need for States Parties to nominate and elect the most highly qualified individuals to serve as ICC judges in the 2020 judicial elections. For example, Melinda Reed, Acting Convenor of the Coalition for the ICC (representing over 2500 organizations from 150 countries) stated: “States parties have a critical responsibility to ensure the best leadership of the court and the Assembly, and we urge you to ensure the nomination and election of highly-qualified and independent candidates through fair, transparent, and merit-based nomination and election processes. This Assembly has before it a draft resolution on judicial elections which can greatly contribute to improving the elections process. We call on you to adopt the resolution without hesitation.”

Additionally, more states joined calls for the amendment of the Rome Statute to include the war crime of starvation as a method of warfare in non-international armed conflict,

States also welcomed the initiative to implement an independent expert review of the ICC by highly qualified experts.

Civil society organizations from all regions of the world presented statements, making recommendations on a host of issues, including the budget. For example, Drissa Traoré, FIDH Secretary General, indicated: “Supporting the Court also comes through the adoption of a budget that meets the ICC’s real needs so it can effectively carry out its mandate in favour of the main beneficiaries: the victims of the most serious crimes and affected communities.”

It was a busy day for side-events covering a wide variety of issues such as the Draft Convention on Crimes Against Humanity, complementarity in Uganda, interim release of accused, decision-making within the ICC, intermediaries, the prosecution of economic and financial crimes, state and regional cooperation with the ICC, prosecutions in other fora, and standardizing processes for international criminal investigations. Additionally, Argentina, Belgium, Mongolia, the Netherlands, Senegal and Slovenia co-sponsored an event on their joint Mutual Legal Assistance Initiative, “Towards the convention on International Cooperation in the Investigation and Prosecution of the Crimes of Genocide, Crimes against Humanity and War Crimes.”

IntLawGrrls’ coverage of the ICC ASP will continue on Day Three, which will see negotiations on the Court’s budget, the omnibus resolution, and the review of the Court.

 

ICC Assembly of States Parties Symposium – The ICC: A potential avenue for accountability for ecocide?

During the December 2-7 meeting of the ICC Assembly of States Parties (ASP), IntLawGrrls is featuring blog posts by members of the Canadian Partnership for International Justice as part of its ICC ASP Symposium. Today we welcome Ania Kwadrans, who sends us this post from the Assembly.Ania Kwadrans

Ania Kwadrans is a Senior Policy Advisor at University of Ottawa Refugee Hub, providing strategic and policy guidance on local, national, and global issues affecting refugee rights. Before joining the Refugee Hub, Ania worked with Amnesty International, engaging in strategic litigation on human rights cases before courts of all levels, including the Supreme Court of Canada, and advocacy before Canadian Parliamentary Committees as well as United Nations treaty bodies. Ania holds a J.D. degree from Osgoode Hall Law School, is called to the Ontario bar, and is currently undertaking graduate studies in International Human Rights Law at the University of Oxford.

“For many decades the human species has been at war with the planet. And the planet is fighting back. … Our war against nature must stop. And we know that this is possible.”

These evocative words of the UN Secretary General Antonio Guterres delivered at a pre-COP25 press conference, 1 December 2019, suggest a connective line between environmental destruction and the very types of crimes that “threaten the peace, security and well-being of the world” falling within the ambit of the Rome Statute of the International Criminal Court (Rome Statute).

Indeed, it is now widely understood that the activities of resource extraction industries shaping and feeding humanity’s culture of overconsumption have not only been destructive to the immediate environments in which they take place, but they have also set the world on a path toward devastating climate change. Despite the recognition in the Paris Agreement, in 2015, by a majority of States, that “climate change is a common concern of humankind” and that as a result global temperature rises need to be limited to 1.5 degrees above pre-industrial levels to “significantly reduce the risks and impacts of climate change”, the world had already reached temperatures approximately 1 degree Celsius above pre-industrial levels, according to the 2018 Intergovernmental Panel on Climate Change’s Special Report. The Special Report warned that this is putting Earth on a path to reach the critical 1.5 degree threshold by 2040, unless profound societal changes are implemented to eliminate our reliance on greenhouse gas emissions. It comes as no surprise, therefore, that in her 9 September 2019 address to the Human Rights Council, UN High Commissioner for Human Rights Michelle Bachelet called climate change “a rapidly growing and global threat to human rights”, the human implications of which are “catastrophic.” She noted: “We are burning up our future – literally.”

Within this context, on the first day of the 18th Assembly of the States Parties (ASP18) to the International Criminal Court, the State of Vanuatu, Ecological Defence Integrity, Green Transparency, the Heinrich Boll Foundation, and the Institute for Environmental Security hosted a side event entitled “Investigating & Prosecuting Ecocide: The Current and Future Role of the ICC.” The event explored current and future opportunities for the International Criminal Court (ICC) to address the climate crisis and rapid environmental degradation we are seeing around the globe.

The type of environmental destruction and its impacts on the sustainability of living beings on Earth was referred to during the event by the term “ecocide.” Polly Higgins, a British lawyer who dedicated her life’s efforts to the recognition of ecocide, defined the term as “the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.”[1] When, however, human activities are at the root of such extensive destruction to our world’s ecosystems, Higgins argued that such actions can attract international criminal responsibility. Higgins argued that this can be the case when:

[a]cts or omissions committed in times of peace or conflict by any senior person within the course of State, corporate or any other entity’s activity which cause, contribute to, or may be expected to cause or contribute to serious ecological, climate or cultural loss or damage to or destruction of ecosystem(s) of a given territory(ies), such that peaceful enjoyment by the inhabitants has been or will be severely diminished.[2]

Further, such impacts must be “widespread and long-term or severe” in order to meet the requisite gravity threshold.[3]

In 2016, the ICC Office of the Prosecutor published a Policy paper on case selection and prioritisation, in which the Prosecutor set as policy giving “particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land” (para. 41). The side event explored what impact this policy has had on the ICC’s functioning since 2016, and what opportunities it and the Rome Statute might present to bring perpetrators of ecocide to justice and taking actions to reverse course and save our dying ecosystems.

At the side event, the audience was first welcomed by John H. Licht, Ambassador of Vanuatu to the United Kingdom and European Union. He was then followed by Natan Brechtefeld Teewe, former Minister of Justice for Kiribati. He emphasized how Kiribati, a small island nation extremely vulnerable to climate change, and the newest State Party to the ICC, could benefit from the ICC’s assistance in investigating and prosecuting environmental offences. The following speaker to provide preliminary remarks was Losaline Teo, Crown Counsel of Tuvalu, who similarly described the effects of climate change her own small island state was already feeling: rising air temperature, more intense and frequent storm surges, declining rain falls, soil salination destroying root crops, and loss of fish stock, the country’s main source of revenue. Like Mr. Teewe, she argued that Tuvalu needed international assistance in order to have the capacity to fight impunity for actions that cause climate change. These three sets of introductory remarks effectively reminded the audience of the real and imminent threats to existing human populations caused by human-induced climate change.

After these introductory remarks, Valérie Cabanes of the Global Alliance for the Rights of Nature noted that multinational resource extraction companies should have been aware of the impacts of their activities since the late 1980s, when the Intergovernmental Panel on Climate Change was established to examine the consequences of climate change. Yet, these companies have only intensified their research and exploitation activities, which are heavily subsidized to the tune of $5.2 trillion (in 2017). This amount represents approximately 6.5 percent of the global GDP. Ms. Cabanes noted that a draft Ecocide Convention has been in consideration in various forms since 1973 which envisages the establishment of an international environmental court, but argued that a much simpler and quicker avenue to achieve the same objectives of recognizing ecocide as an international crime would be to amend the Rome Statute to extend its jurisdiction over this as the fifth atrocity crime.

The following speaker, Richard Rogers of Global Diligence, argued that while States Parties should pursue an amendment to the Rome Statute to introduce a new crime of ecocide, there are meaningful actions that can also be taken within the bounds of the current treaty provisions. He noted that the case of land grabs in Cambodia are exemplary of actions that cause significant damage to the environment, including through widespread deforestation, that also are realized through the perpetration of potential crimes against humanity such as forcible transfer (Rome Statute, art. 7(1)(d)). Human rights defenders are often detained or even killed when attempting to defend their lands. While it is an indirect route to address environmental crimes, he noted that it is nevertheless a start, given that some of the worst environmental degradation flows from illegal land grabs, particularly on indigenous lands. In October 2014, Mr. Rogers filed a case at the ICC on behalf of Cambodian victims evicted from their lands. Despite the OTP’s 2016 policy note, this case has not been prioritised, leading Mr. Rogers to challenge the ICC and the Prosecutor to follow her office’s own policy and to prioritise this situation because of the significant environmental damages involved.

Mr. Rogers was followed by Rodrigo Liedó, of FIBGAR, who focused his remarks on the 2016 OTP policy paper, and argued that on the one hand, it only has a potential impact on the assessment of the gravity of the crime in question. The fact that this policy guidance has not been relied upon since the issuance of the policy paper indicates that its value might be overestimated. However, he ultimately concluded that it should be seen as a promising step toward a more complete assessment of environmental harms as components of international crimes. The ICC is in a process of revision and reform, an opportune timing according to Mr. Liedó, to consider the codification of a new crime of ecocide.

The final speaker for the session was Jojo Mehta, from Ecological Defence Integrity. Ms. Mehta described her organization’s global campaign: “Stop Ecocide: Change the Law”. The mission of the campaign is the introduction of the crime of ecocide into international criminal law. She argued that the ICC is an advantageous arena for such action because, victims have equal voices to states within it. Moreover, in her perspective, only a 2/3 majority is needed to put ecocide on the agenda for potential discussion of an amendment to the Rome Statute and this is feasible in 2020 if key States are willing to step forward. Ms. Mehta emphasized that recognizing ecocide as a Rome Statute crime would give civil society political leverage around which to mobilize, and it would also create moral leverage by drawing a red line between actions affecting our environment that are acceptable and actions which are not. According to her, even initiating the conversation will begin to shift the discussion and start putting a timeline in place toward full recognition.

The speakers concluded with reflections that a two-pronged approach should be followed: leveraging the OTP’s 2016 report and existing crimes within the jurisdiction of the Rome Statute to seek accountability for environmental crimes to the extent possible; while pursuing the introduction of a new crime of ecocide via amendment to the Rome Statute. As the former Secretary-General Ban Ki-moon appealed to UN Member States to “defend the science that shows we are destabilizing our climate and stretching planetary boundaries to a perilous degree”, could the international criminal mechanisms established by the Rome Statute provide one possible way of mounting this defense?

[1] As cited in Anastacia Greene, “The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative?” (2019) 30:3 Fordham Law Review 1 at 2.

[2] Ibid at 2-3.

[3] Ibid at 3.

The author’s attendance at the 18th Assembly of States Parties to the International Criminal Court is supported by the Canadian Partnership for International Justice, funded by the Social Sciences and Humanities Research Council of Canada.

CPIJSSHRC

 

 

ICC Assembly of States Parties Symposium: Day One

ICC Prosecutor at ICC ASP18

ICC Prosecutor Fatou Bensouda, Dec. 2, 2019 – Photo Credit: ICC

Welcome to IntLawGrrls’ symposium on the annual meeting of the International Criminal Court (ICC) Assembly of States Parties (ASP). The 18th session of the Assembly runs from December 2-7 in The Hague, Netherlands.

This year’s ASP will hold a plenary discussion on inter-State and regional cooperation initiatives for the effective implementation of the ICC’s mandate. It will also consider threats and challenges to the ICC, ways to strengthen the Rome Statute system, the 2020 ICC budget, preparations for the ICC elections of six new judges and a new Prosecutor taking place at next year’s ASP, victims’ rights, and potential amendments to the Statute, among other issues.

ASP President O-Gon Kwon opened the ASP, noting that “[t]his year the Assembly faces key decisions on the way forward in view of the anticipated review of the Court, one that would ultimately strengthen the Court and enable it to successfully confront the challenges that it faces today.” He also congratulated the newest state to accede to the Rome Statute, Kiribati, which deposited its instrument of accession on November 26. It will become the 123rd State Party.

ICC President Chile Eboe-Osuji began his speech in a very direct manner, stating that “During the past 15 months, the ICC has been subjected to unprecedented threats in a very public way, from leading officials of the incumbent Government of a powerful country”, referring to the September 2018 speech by former US National Security Adviser John Bolton. Bolton threatened ICC officials with various sanctions to deter them from opening an investigation into the Afghanistan situation and potentially implicating US citizens. That threat was subsequently reiterated by US Secretary of State Mike Pompeo, who announced the cancellation of the Prosecutor’s standing travel visa to the United States. Eboe-Osuji said: “These threats were made in a very plain and unvarnished attempt to subvert the ‘course’ of action of a legitimate multilateral judicial institution.” He continued, “notwithstanding that the Court will do its work undeterred, I must urge, in the most fervent terms, that YOU, the States Parties to the Rome Statute, must do all that it takes – and be prepared to do more – to counter these threats, in all their ramifications.” The Prosecutor’s appeal on her request to open an investigation into the Afghanistan situation will be heard at the ICC this week.

ICC Prosecutor Fatou Bensouda presented an overview of her Office’s successes and challenges from the past year. The successes include the opening of an investigation into the situation in Bangladesh/Myanmar, while the failures include the acquittal of Gbagbo and Blé Goudé and the judges’ denial of her request to open an investigation into the situation in Afghanistan (currently on appeal). Referring to international divisions, she stated that “it is precisely at times like these when international criminal justice and indeed efforts to address gross human rights violations are under assault; when we are witnessing a clash and crisis of fundamental values, the courage and conviction must guide our actions to protect our common values and goals as defined under the Rome Statute”. She noted that attacks against the ICC will undoubtedly rise as the Court increases its work in more situations.

The General Debate also began today, with statements from numerous states. Echoing ICC President Eboe-Osuji’s theme, many states highlighted the need for States Parties to robustly defend the ICC against external threats to its work and its independence. States also referred to measures aimed at reviewing the Court’s performance as being essential steps in reinforcing the Court’s effectiveness. A number of states discussed the specific challenges facing the Prosecutor when investigating and prosecuting sexual and gender based crimes.

Some of the speakers today also called for the adoption of an amendment to the Rome Statute to include starvation as a war crime in situations of non-international armed conflicts. This amendment would mirror the same crime aready listed in the context of international armed conflicts.

Many states were focused on the 2020 elections of the next Prosecutor and six new judges, calling for transparent and objective processes to nominate and elect the most highly qualified individuals to lead the Court. Both Georgia and the United Kingdom announced judicial candidates for those elections.

One side event to take note of today was the launch of “The Hague Principles on Sexual Violence”, which aim to translate the lived experience of sexual violence survivors into law and policy. These were created as a result of consultations throughout 2019 with more than 500 survivors, over 50 civil society organisations, legal practitioners, academics, and policy makers.

Members of the Canadian Partnership for International Justice present at the ASP will join this symposium each day to provide their views on ongoing developments at the Assembly.

 

 

 

CFP: American Society of International Law International Criminal Law Interest Group Workshop

The ASIL International Criminal Law Interest Group invites proposals for its annual Works-in-Progress workshop, which will be held on January 31, 2020 at the Cleveland-Marshall College of Law in Cleveland, Ohio.  All interested participants should submit an abstract (500 words maximum) by December 20, 2019, via email to ASIL International Criminal Law Interest Group Co-Chairs, Andrew Boyle (jandrewboyle@gmail.com) and Milena Sterio (m.sterio@csuohio.edu).  Please also include a sentence about the stage the paper is expected to be in January (e.g., reasonably complete draft, early work in progress, etc.).  The workshop will include both works-in-progress as well as full drafts.  Papers may address any international criminal law topic, and this Call for Proposals is open to everyone in the international criminal law community.  Preference will be given to ASIL members who are also members of the ASIL-International Criminal Law Interest Group.  Paper presenters will be asked to circulate their drafts (or a summary of the project if it is still in an early stage) to workshop attendees no later than January 20, 2020.

Those interested in serving as a commentator for a paper should also send an email to the Co-Chairs, Andrew Boyle and Milena Sterio, by December 15, 2020.  Commentators will be asked to prepare five to eight minutes of comments on one of the papers. Those interested in presenting should let it be known if they are willing to serve as commentators as well. All Cleveland-Marshall College of Law faculty, staff, and students may attend for free. Participants who are not ASIL members or Cleveland State University affiliates will be required to pay a $40 registration fee (includes workshop and meals) for the conference. All meals will be provided, but participants are responsible for their own travel and hotel expenses.

For any questions, please contact Co-Chairs, Andrew Boyle (jandrewboyle@gmail.com) or Milena Sterio (m.sterio@csuohio.edu).