ICC Assembly of States Parties Symposium: Overall Update and Reflections & the Afghanistan Hearing

Guest Post By Jennifer Trahan, Clinical Professor, NYU Center for Global Affairs

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Members of Civil Society Organizations at the 2019 ICC Assembly of States Parties 

Milena Sterio has already blogged about two of the side-events held, and Valerie Oosterveld has provided an update on the progress made during various days of the ASP.  This blog post will provide an update on a few issues covered during the ASP, and on the hearings held simultaneously (December 4-6) at the International Criminal Court regarding the appeal of the rejection of the Prosecutor’s application to proceed with the Afghanistan investigation.  I was able to attend both the ASP as well as segments of the Afghanistan hearing, and also serve as an amicus on the Afghanistan appeal.

The ASP, chaired by ASP President Judge O-Gon Kwon, culminated in the adoption of seven resolutions by consensus on:  amendments to article 8 of the Rome Statute (adding starvation as a war crime when committed in non-international armed conflict), cooperation, the nomination and election of judges, the proposed programme budget for 2020, the remuneration of judges, review of the International Criminal Court and the Rome Statute system, and strengthening the International Criminal Court and the Assembly of States Parties (a/k/a the “omnibus resolution”).  The Assembly also elected six members of the Committee on Budget and Finance and a member to fill a vacancy, and a member of the Advisory Committee on nominations of judges.  In addition to the General Debate, there were thematic plenary sessions on cooperation and the review of the Court, and a large number of civil society and State Party-sponsored “side-events.”  (Press release, ICC-CPI-20191206-PR1505.)

The Review Process

One of the aspects that made this ASP different from past ASPs was the creation of a review process for review of the work of the Court and the Rome Statute system.  Calls for the creation of such a process came after the launch of politically-motivated attacks against the Court, as well as a motivation to strengthen certain aspects of the ICC’s work.  After many drafts this fall of the terms of reference for an independent expert review, it was determined that the review would focus on three areas: (1) governance, (2) judiciary, and (3) prosecution and investigation.  After submissions to the ASP President of nominations of the names of over 60 experts, President Kwon selected the final list of names, with three experts nominated under each category.  This list was then approved at the final ASP session.  This review process will run in parallel with certain review efforts to be addressed directly by the ASP.  There was debate both during the ASP about how the expert review would be implemented, and at least some concern that not all states necessarily seem to fully share the goal of strengthening the ICC.  It was noticeable that some states during the ASP and this past fall were calling for a “reform” process, whereas most agreed that the process was to be a “review” process aimed at strengthening the Court.  NGOs and States Parties have also undertaken to strengthen the process for the nomination and election of ICC judges, with some modest progress made in a resolution adopted on the topic.

 The Afghanistan hearing

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ICC Prosecutor Fatou Bensouda addressing delegates at the ICC Assembly of States Parties 

Prosecutor Fatou Bensounda and ICC President Chile Eboe-Osuji had opened the ASP Plenary Session on December 2 with frank calls about the need to support the ICC as it faced politically-motivated attacks against its work, with the Prosecutor expressing her firm commitment to proceeding notwithstanding.  The timing was such that the ICC Appeals Chamber would simultaneously during the ASP conduct hearings on the appeal of the dismissal of the Prosecutor’s request that the Afghanistan preliminary examination proceed to the investigation phase.

The Pre-Trial Chamber had on April 12, 2019 determine that the Afghanistan preliminary examination met the grounds to proceed under Rome Statute Article 15—that there was a “reasonable basis to believe that the incidents underlying the [Prosecutor’s] [r]equest occurred” and “may constitute crimes within the jurisdiction of the Court” (Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’ of 12 April 2019, para. 60).  Yet, the Pre-Trial Chamber notwithstanding held that it was not “in the interests of justice” under Rome Statute Article 53 (1) (c) to open the investigation based on the Pre-Trial Chamber’s de novo assessment of the application of that phrase (paras. 91-96).

The first day of the appeals hearing (December 4) focused on two procedural questions – whether “victims” had standing to be part of the appeal, and whether the appeal was one related to “jurisdiction.”  The second two days (December 5 and 6) focused on the merits of the argument—what the phrase “the interests of justice” was meant to address, and whether the Pre-Trial Chamber properly assessed the issue, and whether it properly construed the factors by which to evaluate application of the phrase.  This blog post won’t cover all the arguments, but on the day I attended (December 6), the amici present presented extremely persuasive cases that the Pre-Trial Chamber erred in its assessment, including a strong presentation by former US War Crimes Ambassador David Scheffer.

The Appeals Chamber’s ruling is extremely significant not only as to whether the Afghanistan investigation—involving alleged crimes by the Taliban, Afghan authorities, as well as US nationals—may proceed, but some of the criteria utilized by the Pre-Trial Chamber in evaluating whether to open the investigation represent extremely unworkable ones that potentially could jeopardize whether many of the ICC’s preliminary examinations are able to proceed.  Thus, the ruling has potential importance far beyond the Afghanistan situation.  I was privileged to submit a written amicus brief—as amici were asked to present either a brief or to present oral arguments.  All the written amicus submissions addressing “the interests of justice” agreed that the Pre-Trial Chamber had erred in its assessment.

The release of the annual report on Preliminary Examinations

While Valerie Oosterveld has already blogged about the Prosecutor’s release on Thursday, December 5, 2019, of her office’s annual Report on Preliminary Examination Activities, I will just note that the report has a new section covering “Phase 1” of Preliminary Examinations.  The Report (para. 23) explains that during “Phase 1”, the OTP analyzes all communications received pursuant to Article 15 of the Rome Statute using the following criteria:

whether the allegations contained therein concerned: (i) matters which are manifestly outside of the jurisdiction of the Court; (ii) a situation already under preliminary examination; (iii) a situation already under investigation or forming the basis of a prosecution; or (iv) matters which are neither manifestly outside of the Court’s jurisdiction nor related to an existing preliminary examination, investigation or prosecution, and therefore warrant further factual and legal analysis by the Office.

This new section contains discussion of:  North Korea (dual nationals), North Korea (overseas laborers on the territories of States Parties), and Philippines (South China Sea).

At the Prosecutor’s accompanying briefing on Friday December 6, 2019, many representatives of States Parties and members of civil society were present.  Civil society members voiced several extremely heartfelt pleas for the OTP to make more progress in various of the situation countries.  While being sensitive to these interventions, the Prosecutor also explained the reality that the current budget and the limitations it imposes will force her office to “prioritize,” thereby delaying the OTP’s work in some situations.

 The impressive number and diversity of side-events & civil society engagement

While a few side-events have already been covered by prior blog posts, the sheer number of events (related to justice in Myanmar, Darfur, Syria, and many, many more) was extremely impressive.  My only regret was that (with the ASP shortened to 5 actual and 6 scheduled days), it was impossible to attend many of the side-events as a number occurred simultaneously.  The ASP has become quite a gathering place for civil society members from around the world and States Parties interested in advancing (through many different approaches) the pursuit of international justice as well as prosecution of core crimes within national court systems.

The participation of civil society in large numbers at each ASP is largely attributable to the tireless work of the Coalition for the International Criminal Court (“CICC”).  The CICC was ably convened this year by Melinda Reed as Acting Convenor following the retirement of William R. Pace.

The Rome Statute and Cyberwarfare

While many side-events deserve their own blog posts, I will call attention to one that addresses a relatively new area (for ICC followers at least).  It was a side-event held Monday December 2 entitled “The Application of the Rome Statute to Cyberwarfare:  The International Criminal Court’s Jurisdiction over the Crime of Aggression.”  The panel featured Stefan Barriga (Minister and Deputy Ambassador, Liechtenstein Embassy in Brussels) as moderator, and myself and Don Ferencz (Convenor of the Global Institute for the Prevention of Aggression) as panelists.  It was sponsored by Argentina, Austria, Belgium, Liechtenstein, and The Global Institute for the Prevention of Aggression.

The discussion focused on how a cyberattack (if it reached a certain threshold of gravity) could potentially be covered by the ICC’s crime of aggression, particularly if launched by a state actor, and how a cyberattack by a non-state actor potentially could be covered by Article 8 war crimes and Article 7 crimes against humanity.  These issues will be pursued further in meetings of the newly formed Council of Advisors on the Application of the Rome Statute to Cyberwarfare, co-sponsored by Argentina, Austria, Belgium, Estonia, Liechtenstein, Luxembourg, Spain, Switzerland, and The Global Institute for the Prevention of Aggression, and Chaired by Ambassador Christian Wenaweser, Permanent Representative of Liechtenstein to the United Nations.  Focus on the application of the Rome Statute to cyberwarfare illustrates one of the ways that the Rome Statute is potentially broad enough to address new challenges and new forms of warfare, and presents an area that should be of interest to many states that are increasingly facing such attacks.  It might even persuade some States Parties that have not yet ratified the ICC crime of aggression amendment, to see it in a potentially new light.

 Challenges ahead

With a huge number of preliminary examinations and investigations, the ICC has much work facing it, and it will be a challenge how much can be accomplished both due to budgetary limitations but also a frequently hostile political landscape.  For example, when both the Philippines and Burundi withdrew from the Rome Statute, while those countries are supposed to have continuing obligations to cooperate with the ICC, for the OTP to move forward most certainly becomes much more difficult.  While the reasoning contained within the Pre-Trial Chamber’s decision dismissing the OTP’s request to proceed with the Afghanistan investigation seems weak, if the Appeals Chamber reverses the decision and the Court proceeds, there undoubtedly will be significant hurdles to face.  Yet, at the end of the day, that seems exactly what the Court was designed to do:  to pursue difficult cases, particularly against high-level accused, where national systems are unwilling or unable to do so—remembering that there is always the initial choice for national authorities to conduct their own investigations and/or prosecutions, obviating the need for the ICC to play any role.  Additional challenges will be to ensure that at the conclusion of the review process, the ICC and ASP ensure that recommendations designed to strengthen the Court are effectively implemented.

John Bolton is right (sort of)—the ICC should not be able to prosecute Americans. How US law has major gaps in domestic accountability for war crimes.

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US National Security Advisor John Bolton. Photo Credit Gage Skidmore.

It has long been known that US National Security Advisor John Bolton is no fan of the International Criminal Court (ICC). But today marked a dramatic step up in his rhetoric, ahead of the ICC’s decision about an investigation into possible war crimes and crimes against humanity in Afghanistan. Despite the fact than any ICC investigation will probably focus on the Taliban, the US is worried that American troops stationed in the country may be vulnerable to prosecution.

Ahead of the ICC’s announcement, Bolton claimed that the US will “ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.” (However, it seems unclear if the President actually has the legal authority to do this.)

John Bolton is right about one thing: the ICC should not be able to prosecute Americans for war crimes or crimes against humanity. The fact that the ICC can reveals huge gaps in the American domestic legal system’s ability to hold citizens and foreign nations residing in the US accountable for mass atrocities.

Bolton’s pronouncements to the contrary, the ICC only has jurisdiction over crimes included in its statute committed by citizens or in the territory of states party to the Rome Statute. That is why the ICC only theoretically has jurisdiction over Americans for crimes committed in Afghanistan (and not, for instance, Yemen). Furthermore, the ICC is a court of last resort. The principle of complementarity means that the ICC can only prosecute individuals if other states are unwilling or unable to prosecute them first.

Despite Bolton’s claim that his opposition to the ICC is to protect American service members, US military personnel are arguably more protected from ICC prosecution by the principle of complementarity than other American civilians. The US military’s court martial system is generally ‘willing and able’ to hold service members accountable for war crimes and crimes against humanity. However, there is a huge gap in the American legal systems’ ability to hold American civilians and foreign nationals residing in the United States accountable for crimes against humanity and war crimes committed abroad.

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Gender-based persecution on the International Criminal Court’s radar

Sexual and gender-based crimes were high on the ICC’s agenda in 2016 – a trend which looks set to continue this year. In March 2016, the Court handed down its first conviction for rape, and in December, its first trial to feature charges of forced pregnancy and forced marriage began.

There was also a focus on sexual and gender-based crimes in situations under preliminary examination, including the crime against humanity of ‘gender-based persecution’, which has never before been prosecuted by an international criminal tribunal.

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Women in Afghanistan, one of the two preliminary examinations where the ICC Office of the Prosecutor is reviewing information on gender-based persecution (Photo credit: Shah Marai / AFP).

This focus on gender-based persecution can be seen in the ICC Office of the Prosecutor’s most recent Preliminary Examinations Report, which gives an update on the ten situations currently under ‘preliminary examination’ (an initial filtering process, in which the ICC Prosecutor reviews information on alleged crimes and decides whether a full-scale investigation is warranted).

The report confirms that the Prosecutor is on the brink of deciding whether to open an investigation into the situation in Afghanistan, which has been under preliminary examination in the since at least 2007.

This investigation, if it goes ahead, will be historic. It will be the first time that any international criminal tribunal, past or present, has looked into war crimes by US nationals. It will also be the first investigation to specifically contemplate the crime against humanity of gender-based persecution – or the first one on public record, at least.  Continue reading

La possibilité tangible de l’amorce d’une enquête relative aux crimes internationaux commis sur le territoire afghan

À l’aube de l’ouverture de la 15e session de l’Assemblée des États parties au Statut de Rome de la Cour pénale internationale (AÉP), la Procureure la Cour pénale internationale (CPI), Fatou Bensouda, a annoncé publiquement que l’examen préliminaire de son Bureau concernant la situation en Afghanistan pourrait déboucher de façon imminente sur l’ouverture d’une enquête relative aux allégations de crimes contre l’humanité et crimes de guerres qui auraient été commis par les Talibans, les services de sécurité afghans et le personnel des forces armées américaines dans le cadre du conflit armé opposant les forces progouvernementales et antigouvernementales.

Quelques jours plus tard, le Bureau du Procureur a publié le Rapport sur les enquêtes menées en 2016 en matière d’examen préliminaire (« Rapport 2016 ») dans lequel la Procureure Bensouda réitère que toutes les conditions requises pour ouvrir une enquête sont présentes et indique que « le Bureau [étant arrivé] au terme de son évaluation des facteurs énoncés aux alinéas a à c de l’article 53-1 du Statut, [il] s’apprête à décider, de façon imminente, de demander ou non à la Chambre préliminaire l’autorisation d’ouvrir une enquête sur la situation en République islamique d’Afghanistan à compter du 1er mai 2003 ».

Le premier Procureur de la CPI, Louis Moreno Ocampo, avait annoncé publiquement en 2007 l’ouverture d’un examen préliminaire en Afghanistan, qui a ratifié le Statut de Rome le 10 février 2003, donnant ainsi à la CPI une compétence sur les faits commis sur le territoire afghan ou par des ressortissants de ce pays à compter de 2003 pouvant constituer des crimes au sens de ce traité international.

Elle s’insérait alors dans le contexte du conflit en Afghanistan, amorcé dans la foulée des attaques terroristes du 11 septembre 2001, aux États-Unis. À la suite à ces attaques, une coalition de pays dirigée par les États-Unis a procédé à des frappes aériennes et à de multiples opérations terrestres en Afghanistan afin de déloger les Talibans, associés au réseau d’Al Qaeda. Ces opérations ont permis d’évincer les Talibans du pouvoir et de former un gouvernement provisoire en décembre 2001 sous les auspices de l’ONU, avant d’être remplacé en 2002 par un nouveau gouvernement afghan de transition. Les affrontements se sont néanmoins poursuivis et les Talibans et autres groupes armés opposés aux forces gouvernementales ainsi qu’à leurs alliés occidentaux ont regagné du terrain dans le sud et l’est du pays. Le conflit armé s’est par la suite intensifié et s’est étendu au nord et à l’ouest, alors qu’ont persisté de violents combats qui, entre 2007 et juin 2015, ont causé la mort de plus de 23 000 civils conformément aux chiffres révélés par la Mission d’assistance des Nations Unies en Afghanistan (MANUA)[1].

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Aid Workers Could Secure Better Protection under the Protection of Civilians Mandate

When two aid workers were shot dead in Afghanistan last month, the world’s media focused its attention on the dangers of 21st century humanitarianism and the challenges that assistance agencies face in protecting their personnel. Those challenges were underscored again this week with the tragic news of more fatal attacks on aid workers in South Sudan. International law plays an undeniably important role in the protection of humanitarian personnel, but these events call into question the extent to which international law’s provisions on protection are effective on the ground. Reframing the protection of humanitarians as a protection of civilians issue could go some way to improving protection across-the-board.

Aid worker security is of vital importance to any humanitarian mission. Insecurity in this regard not only compromises the safety of aid workers themselves, but also the safety of the populations they serve and the quality of the aid they deliver. Condemning the attacks on the above mentioned South Sudanese aid workers, Wendy Taeuber, Country Director for the International Rescue Committee (IRC) in South Sudan, commented that the ‘security and safety of … staff is paramount in order to be able to operate.’

It is a desperately sad reality that attacks on aid workers are so common. According to the Aid Worker Security Database (AWSD), in 2013-2014 alone 610 workers across the major international organizations and national agencies were killed, wounded or kidnapped in the field (so-called ‘major incidents’). That figure does represent a slight decrease in the number of victims compared to 2012-2013 statistics, but the trend over the past decade shows a deeply concerning increase all the same.

So what accounts for such an increase? One might chalk these figures up to weapons becoming more powerful and more indiscriminate (unable to be operated in a manner consistent with the legally required distinction between combatants and non-combatants) than ever before but the statistics remain fairly steady with respect to the number of victims of weapons-related incidents. For an answer, it appears we need to look elsewhere.

The general framework for the protection of humanitarian personnel under international law may provide us one explanation, but certainly not the full array of them. There are several major international legal instruments that pertain to the protection of humanitarian aid workers and each legally classifies those aid workers as civilians. The 1949 Convention relative to the Protection of Civilian Persons in Time of War (the fourth Geneva Convention) and the 1977 Protocols additional to the Geneva Conventions (Additional Protocol I and Additional Protocol II) are civilian protection treaties that oblige Parties to protect aid workers in specified armed conflict situations. Article 71(2) of Additional Protocol I, for example, requires that ‘personnel shall be respected and protected’ generally and Article 71(3) stipulates that each Party in receipt of relief consignments is obliged to ‘assist relief personnel … in carrying out their relief mission’. But despite being classified as civilians for the purposes of the conventions, aid workers are rarely treated like civilians in practice. It is in this paradox that many of the humanitarian protection issues faced today are sourced. Reframing the protection of humanitarian personnel as a protection of civilians issue (in line with international law), therefore, may provide an avenue for some improvement.

So how does the protection of humanitarians vs protection of civilians issue play out on the ground? The problems in this regard are too numerous and too complex to list in full but some key issues can be identified here. For one thing, aid workers look like aid workers and not like civilians. They are often dressed in uniforms with internationally-recognized emblems that guarantee their legal protection if nothing else (the International Committee of the Red Cross’ (ICRC) emblem of a red cross on a white background being the most prolific) and they often travel in marked vehicles with a host of resources and privileges that are not available to the general civilian population. These factors create an operational atmosphere in which humanitarians look to be more protected than they actually are. This is so even without considering that certain types of humanitarian are permitted, unlike the civilian population, to carry guns – a consideration that despite having no legal relevance here (as these humanitarians are governed by a separate branch of international law) does accentuate the differences between humanitarians and civilians. In light of these perceived differences, mission planners have ended up splitting protection of humanitarians units away from protection of civilians units, meaning the two rarely work together or share resources which in turn serves only to foster the unhelpful divide. Major advocacy groups like Human Rights Watch and Amnesty International, too, have responded by prioritizing protection of civilians in their campaigns at the cost of minimalizing protection of humanitarians advocacy. In reality, that perceived protection – emblems, resources, organization, etc. – makes humanitarians look like legitimate military and political targets for certain groups and therefore renders them open to attack in the same way as a combatant but with no means of defending themselves.

Those problems are especially acute in the national aid worker context. The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) has indicated in a 2011 report that despite overall improvements in aid agencies’ security risk management, national aid workers perceive continued inequities in security support compared with their international counterparts.

Placing protection of humanitarians more firmly under the umbrella of protection of civilians may go some way to eradicating issues with respect to operational ‘siloing’, resource allocation and international/national worker inequities. The mandate of protection of civilians encompasses a wide range of activities designed to obtain ‘full respect for the rights of all individuals in accordance with international law – international humanitarian, human rights, and refugee law – regardless of their age, gender, social, ethnic, national, religious, or other background’ (an Inter-Agency Standing Committee (IASC) endorsed definition). Since 1999, protection of civilians has received widespread attention and resources from critical institutional and humanitarian actors and has a framework for prevention and response that is far more developed than that which applies to the protection of humanitarians.

There is certainly institutional and cultural support for a more thorough system of humanitarian worker protection. The United Nations Security Council, for instance, has issued several resolutions condemning attacks on aid workers (most prolifically with respect to the treatment of humanitarian personnel in Syria) and has previously emphasized, in Resolution 1502, that attacks on aid workers constitute war crimes. Garnering this influential support and directing it towards addressing the gaps in international law with respect to how protection is framed, therefore, can only be welcomed.

Despite the fact that a review of the role of international law in the protection of humanitarian personnel would be a positive move, international law plays a frustratingly limited role in conflicts where motivations of politics and religion often have the final say. Humanitarian protection is a complex and multifaceted issue and only a coordinated effort across all risk and security areas can foster the levels of change demanded by the tragedies too often witnessed in humanitarian missions the world over.

As part of that coordinated effort, August 19, 2014, marks World Humanitarian Day, a day conceived to increase awareness of humanitarian work around the world and encourage greater dialogue on key challenges. You can show your support and find out more about the Messengers of Humanity campaign by visiting www.worldhumanitarianday.org.

G-8 on Women

This post has been co-authored with Boi-Tia Stevens, an attorney based in Washington.  She has engaged in international work on criminal justice, human rights and social justice.

In renewing their commitment to “open economies, open societies, and open governments”, the leaders at the G-8 Summit, held June 17th – 18th in Lough Erne, Ireland, highlighted the role of women in three key areas:  (1) Food security and nutrition; (2) Transition of Arab countries; and (3) Rebuilding Afghanistan.Image

Food Security and Nutrition

Food security has been a major focus of the G-8 leaders since 2009. The 2012 G-8 summit launched the New Alliance for Food Security and Nutrition — a partnership between the G-8 countries and partnering African countries and private sector companies to lift 50 million people in sub-Saharan Africa out of poverty by 2022 through support for agricultural development. The Alliance aims to accelerate the flow of private capital and of new technologies to African agriculture, while engaging and leveraging the capacity of private sector partners, including women and smallholder farmers.

In the 2013 Communique, G-8 leaders continued to recognize the critical role to be played by smallholder farmers, especially women, in advancing the goals of the New Alliance. To this end, they highlighted the need for greater flows of private capital to this sector to ensure that investments have a measurable impact on reducing poverty and malnutrition, particularly for smallholders and women, and are made responsibly and support the sustainable use of natural resources.

Researchers and advocacy organizations used the occasion of the 2013 G-8 Summit to also recognize the integral connection between gender equity and food nutrition. Recent research by public health specialists from Johns Hopkins University has suggested that the degree of malnourishment around the world is greater than previously thought. Highlighting the dire importance of nutrition for pregnant women and the first two years of a child’s life, the researchers explained that “countries will not break out of poverty unless nutrition becomes a global priority,” (Girls Globe Blog).

To this end, the G-8 2013 Communique welcomed the launch of the Global Nutrition for Growth Compact. On June 8th, 2013, sixty (60) leaders from government, private sector and international organizations signed the compact. Its goals include improving the nutrition of 500 million pregnant women and children and consequently saving the lives of 1.7 million children by 2020. The Communique highlighted the financial and policy commitments made by the Compact, and charged the Scaling-Up Nutrition (SUN) Movement with regular reports and reviews of progress toward the outlined goals.

In another article, “Poverty Matters,” Sarah Degnan Kambou, the President of the International Centre for Research on Women (ICRW) called on the G-8 to also make the connection between gender equity and food nutrition in another area as well. Women play an essential role as food producers and income earners for their families and communities. Yet, the article explains, domestic violence against women reduces their effectiveness in this role. As many as seven out of every ten (10) women will experience some form of violence in their lifetimes. In some cases, women have been so abused they are unable to work or to care for themselves and their children, Ms. Kambou wrote, “When women live free from violence they have a better chance of earning an income, and are more likely to focus their spending, and energy, on their children.” Continue reading