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

ASP Photo 1

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

ASP Photo 2

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.

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.

 

 

 

 

 

 

The Crime of Aggression: Still a live issue

Liechtenstein hosted a panel this morning at the Assembly of States Parties (ASP) titled “The ICC’s Jurisdiction Over the Crime of Aggression”. This panel sought to discuss the significance and broader context of the crime of aggression. Panelists included IntLawGrrl Jennifer Trahan, Professor at the Center for Global Affairs at New York University, David Donat Cattin, Secretary-General of Parliamentarians for Global Action, and Donald Ferencz, the Convenor of the Global Institute on the Prevention of Aggression. This panel complemented many of the comments that States made at the General Debate session held yesterday that continued after this panel on the activation of the crime of aggression.

Many States Parties made supportive statements on the activation of the crime of aggression during the General Debate on Day 1 that continued after Liechtenstein’s panel today on Day 2. Austria spoke on behalf of the European Union (EU) in support of the activation of the crime of aggression, and all EU member states commented that they supported Austria’s statement. Most notably, however, France was quite critical of the Kampala Amendments as promoting division amongst States Parties when the focus should be universality. China as well was critical of the Amendments, stating that the International Criminal Court (ICC) should not undermine the Security Council, as it is this body that is responsible for upholding international peace and security. Given that China is a permanent member of the Security Council and is not a party to the ICC, this comment is not surprising. Many states commented that they are in the process of ratifying the Amendments, which was a welcome announcement, including Paraguay and Greece.

During the panel, Jennifer Trahan began the discussion with an analysis of the text of Article 8bis of the Rome Statute which enumerates the crime of aggression. As discussed in my previous post, Trahan stated that the language in Article 8bis derives from the London Statute of the Nuremberg Tribunal and that the crime of aggression is not meant to encompass all violations of Article 2(4) of the UN Charter, but manifest violations. Manifest violations, she clarified, are those that are super clear and not in a grey zone. She also discussed the novel jurisdictional regime that exists within the crime of aggression with regard to state and proprio motu referrals compared to the other three international crimes:  non-States Parties to the Rome Statute are completely excluded from the Court’s jurisdiction over the crime of aggression; not all States Parties are automatically covered by 15bis jurisdiction; and there is an opt-out method for States to opt out of the Court’s jurisdiction over the crime.

ASP

Photo credit: coalitionfortheicc.org

David Donat Cattin held a very positive view on the activation of the crime of aggression and discussed some of the progress being made for further ratifications. He referenced the Austrian delegate’s support for the activation of the crime of aggression on behalf of the EU and hoped that this statement would have an impact on other EU member states to encourage their ratification. He also mentioned that the Dominican Republic will be voting on whether to ratify the amendment in the next year. He added that the Central African Republic is likely to join because they are subjected to foreign interference on all sides. He also mentioned that South Africa highlighted the historic significance of the Kampala Amendments at the General Debate, so this may indicate its ratification in the next year.

Donald Ferencz completed the panel with some very engaging comments that started with this statement: “the rule of law is for the little people”. He commented that a state like Liechtenstein, who has ratified the Amendments, is likely not about to commit the crime of aggression, but two permanent members of the Security Council who are also States Parties to the Rome Statute (referencing the UK and France) have not ratified the Amendments. This sends the message that this law/crime is not for bigger states like the UK and France, but is for the smaller states, who are unlikely to be the ones committing the crime in the first place. This was quite an interesting comment in light of France’s statement regarding the Kampala Amendments promoting division at the General Debate yesterday.

One quite interesting debate that evolved out of the panel concerned how to hold state officials liable for the crime of aggression when the state is not a party to the Rome Statute, with specific reference to the Russian invasion of Ukraine. This question was first brought up by Sabine Nolke, Canadian Ambassador to the Netherlands. A few intervenors were of the view that, in the case of Russia, war crimes committed in Ukraine (because Ukraine is a party to the Rome Statute) can be prosecuted and the Court could consider the fact that Russia committed an act of aggression as an aggravating factor in the prosecution of war crimes and in sentencing. Nolke and members of the panel, however, cautioned against this view because it suggests that war crimes committed in non-aggressive wars are less grave or less prosecutable. She and the panelists stressed that war crimes are war crimes no matter the context, and they should not be treated differently based on whether or not there is an aggressive war.

States’ comments during the General Debate and the discussion during this panel indicate that, although there seems to be a large degree of support for the activation of the crime, ratification is still a live issue and questions of jurisdiction are far from settled.

This blogpost and the author’s attendance to the 17thAssembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

Partnership logo

SSHRC-CRSH_FIP

The Crime of Aggression: 1 Year Later

ICC

Photo credit: BBC: https://www.bbc.com/news/world-africa-29548753

This year’s Assembly of States Parties (ASP) marks the first time the Court and States Parties will discuss the crime of aggression since its activation last year, and it will be interesting to hear what States Parties have to say about it. One issue that may be addressed includes the relationship between the Court and the Security Council given that the Security Council must first determine that an act of aggression has occurred before the Court can prosecute the crime of aggression (there is, however, an exception to this if 6 months have passed since the Security Council was made aware that an alleged act of aggression has occurred and has not made a determination). The implementation of the Kampala Amendments is another potential issue because there has been debate surrounding whether the amendments should be universally implemented for all States Parties to the Rome Statute or only for those that ratify the amendment. A third potential issue of discussion is how the Court will fund the addition of this crime to its jurisdiction given the already constrained budget.

The crime of aggression is the fourth crime enumerated under the Rome Statute of the International Criminal Court. Twenty years ago, States could not agree upon the definition of the crime of aggression when the text of the Rome Statute was negotiated, thereby excluding crimes of aggression from the Court’s jurisdiction.

The definition was finally agreed upon in 2010 through the Kampala Amendments, but negotiating States decided that the Court would still not have jurisdiction over the crime of aggression until one year after 30 member states had ratified the Amendments and it was promulgated by the Assembly of States Parties (ASP).

As Palestine was the 30th State to ratify the Amendments in June 2016, the ASP agreed to activate the Court’s jurisdiction over the crime of aggression during their meetings in December of 2017. The Court’s jurisdiction officially became active on July 17, 2018.

The key issue and reason for the delay in agreeing to the text of the crime was the lack of agreement on whether the Court could exercise jurisdiction for the crime of aggression over the nationals of States Parties to the Rome Statute who had not ratified the Amendments. The wide view on this issue is that the Court has jurisdiction when the crime occurs on the territory of a State which has ratified the Amendment. Still, there are those, including Canada, that believe that the Court would not have jurisdiction over state referrals or proprio motu investigations when the alleged crime is committed by nationals of non-ratifying States or on their territory.

The crime of aggression essentially allows for individual criminal responsibility for violations of Article 2(4) of the Charter of the United Nations. Article 2(4) prohibits “the threat or use of force against the territorial integrity or political independence of any state”. However, not all violations of the prohibition on the use of force will constitute a crime of aggression: only the most serious and dangerous forms.

The Rome Statute is the first modern criminal tribunal to include the crime of aggression, but the International Military Tribunals (IMT) in Nuremberg and Tokyo included prosecutions and convictions for crimes against peace, which criminalized those involved in waging wars of aggression or wars in violation of international treaties. The language of the crime of aggression was borne out of and based on the Charter of the IMT.

The crime of aggression has not been prosecuted yet and there is no precedent for the Court to follow. It will be interesting to see how the Court interprets the crime once the first charges are made, and if it takes any guidance from the IMTs or develops its own interpretation.

Stay tuned for updates!

This blogpost and my attendance to the 17th Assembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

Partnership logo

SSHRC-CRSH_FIP

L’adoption par consensus de la résolution en vue de l’activation de la compétence de la Cour pénale internationale à l’égard du crime d’agression

20171214_223012.jpg

Plusieurs représentants des Etats Parties en consultation avec les Vice-Présidents lors de la session plénière visant à l’adoption de la résolution relative à l’agression.

L’activation de la compétence de la Cour pénale internationale (CPI) à l’égard du crime d’agression a fait l’objet de longues négociations tout au long de la 16ème Assemblée des États Parties (AÉP) qui a eu lieu au siège des Nations Unies, à New York, du 4 au 14 décembre 2017. Après de vifs débats et discussions, la résolution ICC-ASP/16/L.10* en vue de l’activation de la compétence de la Cour à l’égard du crime d’agression a été adoptée par consensus, tard dans la nuit du 15 décembre. Cette contribution vise à rendre compte de quelques positions des États qui ont été exposées tant dans le débat général que lors de l’adoption par consensus de la résolution.

Dans le cadre du débat général, les Pays-Bas ont réitéré leur engagement et leur soutien à la Cour en soulignant que la lutte contre l’impunité était la pierre angulaire du système institué par le Statut de Rome. En ce qui concerne le crime d’agression et l’activation de la compétence de la Cour, les Pays-Bas ont fait valoir que les amendements de Kampala constituent une victoire historique contre l’impunité et que cette AÉP a la chance de pouvoir, à nouveau, écrire l’histoire en consolidant le message porté par Nuremberg, soit celui du triomphe contre la barbarie et de l’égalité devant de la loi. Le Liechtenstein et la Slovénie ont exprimé des positions dans le même sens.

Les Philippines, tout en réaffirmant que la CPI est une Cour de dernier ressort, ont souligné la nécessité de renoncer à la guerre comme moyen de conduite de la politique en soutenant l’activation de la compétence de la Cour à l’égard du crime d’agression et de la guerre afin de se conformer aux obligations découlant de la Charte des Nations Unies, dont l’article 2, § 4, prohibe l’usage de la force dans la conduite des relations diplomatiques.

Le représentant du Costa Rica a rappelé qu’à un an du 20ème anniversaire du Statut de Rome, le fondement de la CPI a été le fondement de l’empire du droit, présentant la Cour comme une institution de valeur exceptionnelle et non comme une organisation internationale de plus. En effet, la figure de la Cour s’avère indispensable aujourd’hui et dans le futur pour sanctionner, en dernier ressort et dans le respect du principe de complémentarité, les crimes internationaux les plus graves. Ainsi, pour le Costa Rica, l’activation du crime d’agression, la garantie de l’indépendance judiciaire de la Cour et du respect du Statut de Rome doivent avoir un caractère dissuasif en vue de la protection des États qui n’ont pas les moyens de repousser une agression armée. C’est pour cela qu’une CPI renforcée répond au besoin de garantir la paix et la sécurité internationales, le Statut de Rome devant être l’instrument suprême pour éradiquer le crime d’agression conformément à la Charte des Nations Unies.

La Suisse a rappelé aux États les engagements pris au titre de la Charte des Nations Unies et a souligné le besoin de renforcer l’interdiction du recours à la force dans les relations interétatiques, en félicitant le Panama qui a été le 35ème État à ratifier les Amendements de Kampala. Si, en 1998, les États sont parvenus à un accord pour inclure dans la compétence de la Cour « le crime des crimes » et qu’en 2010, un accord a été trouvé en vue de la définition de l’agression, il apparaissait essentiel, en 2017, de déterminer l’étendue de la protection des victimes potentielles d’une agression. La représentante suisse a mis l’accent sur la dépendance des petits États du respect de l’ordre international, face à des États puissants qui ont les moyens d’assurer leur propre défense et de faire valoir leurs intérêts, en rappelant que cette décision historique de l’activation revenait à privilégier l’État du droit ou le règne du pouvoir.

Le Botswana, premier État africain à avoir ratifié les Amendements de Kampala, a apporté également son soutien à l’activation du crime d’agression en estimant que l’entrée en vigueur de la compétence de la Cour constituerait un énorme pas dans la progression de la justice pénale internationale grâce à la criminalisation de l’usage de la force illégal pouvant être sanctionné de manière pénale. Dès le débat général, l’État indépendant des Samoa a exprimé sa déception et son découragement de voir le peu de soutien de la part des États à l’égard du crime d’agression et leur volonté de négocier a minima l’activation de la compétence de la Cour à travers les négociations et les discussions.

Les divergences entre les États petits en faveur d’une pleine et entière activation de la compétence de la CPI à l’égard de l’agression, et les États puissants favorables à une activation limitée, se sont reflétées au moment des discussions visant à l’adoption de la résolution finale, bien que tous les États aient manifesté leur souhait en vue d’une adoption par consensus, redoutant le recours au vote.

Tout au long de l’AÉP, les réunions des groupes de travail ont été fermées au public et les débats de la journée de clôture se sont déroulés à huit-clos. Les deux propositions de résolution soumises par la représentante de l’Autriche, en charge de mener les négociations, ont toutes les deux été rejetées par les États. C’est finalement la Vice-Présidence qui a soumis la proposition de résolution finale en soulignant que ce texte n’était pas ouvert à une renégociation. Le texte a été simplement revu en raison d’une erreur substantielle dans un des paragraphes opérants. Cependant, avant son adoption par consensus, de nombreux États ont laissé transparaître leurs inquiétudes, fait valoir plusieurs points de vue et ont tenté de modifier la version finale du texte.

La position de l’État de Palestine exprimée dans le débat général résume assez bien le point de désaccord fondamental, à savoir l’exclusion de la juridiction de la Cour à l’égard du crime d’agression si celui-ci a eu lieu sur le territoire ou à l’égard des nationaux d’un État Partie au Statut de Rome qui n’a pas ratifié les amendements de Kampala et a choisi l’opt-out. Le représentant de la Palestine a pointé le fait qu’il s’agissait d’accorder l’immunité des nationaux et territoires de certains États, en instaurant le régime le plus restrictif pour un crime international. Il était particulièrement en faveur d’une activation consensuelle mais non d’une activation négociée en imposant le consentement nécessaire pour que les nationaux d’un État puissent être traduits devant la CPI et non d’une manière qui n’assure pas une protection suffisante aux États vulnérables. C’est pourtant seulement de cette manière et avec une telle clause que le consensus a pu être trouvé parmi les États, clause figurant au § 2 de la résolution finale ICC-ASP/16/L.10*.

Les défenseurs de cette clause dont le Canada, le Mexique, l’Espagne, le Venezuela, la France, le Royaume-Uni et le Japon souhaitaient également que le § 3 de la résolution réaffirmant les articles 40, § 1, et 119, § 1, du Statut de Rome relatifs à l’indépendance judiciaire des juges de la CPI soit déplacé de cette partie opérative au dernier paragraphe du Préambule. Ces États ont tenté d’imposer cette modification comme nécessaire pour parvenir au consensus. Néanmoins, plusieurs interventions des représentants des États opposés à cette ultime modification et renégociation de la résolution présentée comme finale par la Vice-Présidence de l’Assemblée, ont souligné l’indispensable indépendance judiciaire dont les juges doivent disposer dans l’exercice de leurs pouvoirs et ont fait valoir leur incompréhension à l’égard de la réticence de réaffirmer avec force ce principe fondamental dans le domaine de la justice. Ainsi, après plusieurs discussions et derniers temps de réflexion, cette demande de modification a été rejetée par le Vice-Président et la résolution a pu être adoptée en l’état, par consensus.

 

La publication de ce billet et la participation de Silviana à la 16e Assemblée des États Parties dans le cadre du Partenariat canadien pour la justice internationale ont été financées par le Conseil de recherches en sciences humaines du Canada

Partnership logo

SSHRC-CRSH_FIP

Preliminary examinations: A closer look at one of the most important parts of the ICC Office of the Prosecutor’s work

Sara Wharton and Rosemary Grey

Preliminary examinations are in the limelight following the release of the ICC Office of the Prosecutor (OTP’s) 2017 Report on Preliminary Examination Activities, which was presented today at the 16th session of the ICC Assembly of States Parties in New York.

Additionally, recent developments in several situations under preliminary examination have garnered attention, including the Prosecutor’s decision to seek authorisation to open investigations in Afghanistan and Burundi and affirmation of her 2014 decision not to proceed with an investigation into war crimes allegedly committed by members of the Israel Defence Forces on the vessels of Comoros, Cambodia, and Greece.

In this period of heightened interest in ICC preliminary examinations, we want to take the opportunity to share some findings of our forthcoming study, which tracks and compares data across all 25 preliminary examinations that have been publicised to date.[1]

Continue reading

16th Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Opening Plenary Main Themes

The Opening Plenary of the 16th Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court (ASP) took place earlier this morning in New York. The ASP is the management oversight and legislative body of the International Criminal Court (ICC). Several themes emerged from the opening plenary which are worthy of note. This blog post will highlight three main themes from the first plenary of the ASP. First, the President of the ASP highlighted the need for States Parties of the ICC to cooperate with the ICC. Second, as reiterated by the current President of the ASP as well as the new President-elect of the ASP, the ICC is a distinct kind of court which has not yet reached its full potential. Third, the Prosecutor of the ICC emphasized the need to foster a culture of accountability to prosecute perpetrators of international crimes.

24312924_10105688571713762_2387143297154085671_n

President Sidiki Kaba addressing the 16th Session of the Assembly of States Parties.

1. Cooperation from States Parties essential to workings of the ICC

The President of the ASP, Mr. Sidiki Kaba, in his address to the ASP, called for the continued cooperation between States Parties and the ICC in order to boost the effectiveness of the Court. This is especially important where some African States have begun to signal their intention to withdraw from the ICC. The meeting of the ASP at its 16th session is an important juncture in time when the work and value of the ICC should be safeguarded especially through increased cooperation from States Parties. Mr. Kaba reiterated that the ICC only steps in when there is a clear lack of will or an inability by a country to prosecute its nationals in accordance with the complementarity rule. This means that cooperation from States Parties is essential in order for the workings of the ICC to be effective. In addition, training should be provided to judges, lawyers, security officers and others in order to safeguard the complementarity rule. Furthermore, national determination processes must meet the highest international standards and norms. Finally, in order to ensure reparations for victims of international crimes, support for the ICC Trust Fund for Victims is necessary to support victims.

2. ICC can still reach its full potential

In his address to the ASP, Mr. Kaba further reiterated that the ICC is a distinct kind of court, where independence is essential in order to safeguard its credibility and legitimacy. The judicial independence of the ICC should not be an impediment to its efforts, which has been his main priority during the tenure of his presidency. Mr. Kaba stated that there are certain areas which the ICC should work, including the need to focus upon the legal representation of victims, and the emphasis required for reparations for victims for international crimes and the availability of legal aid for victims. As President, Mr. Kaba sought to promote a cohesive judicial culture which is vital in order to accelerate judicial proceedings and to facilitate the understanding of the parties and victims involved. Another key area is making sure that officials of the ICC uphold their integrity. Mr. Kaba announced the mapping of all relevant existing goals of ethics relating to the duties of elected officials while they are in office and after their departure. Mr. Kaba also stated that the ICC has increased its outreach efforts to victims of international crimes and that the participation and reparation of victims are central to the role of the ICC.

At the 16th session of the ASP, Mr. Kaba announced the election of Judge O-Gon Kwon from the Republic of Korea by acclamation as the next President of the ASP effective for the 17th, 18th and 19th sessions of the ASP until 2020. Judge O-Gon Kwon has vast experience in law at both national and international levels including serving as a judge for 22 years and holding senior positions in the government of the Republic of Korea. Judge O-Gon Kwon, in his address to the ASP, emphasized the need for cooperation between the States Parties and the ICC. Judge O-Gon Kwon stated that the Kampala Amendments of the Rome Statute on the crime of aggression was adopted by consensus and therefore is a milestone for the ASP. Judge O-Gon Kwon reiterated that international criminal justice is very much a work-in-progress – a project very much in its infancy. Further, it is critical that the ICC maintain its neutrality, impartiality and independence which requires the careful balancing of viewpoints. It is vital to liaise and facilitate cooperation between the States Parties and the ICC and this cooperation is indispensable for a well-functioning court. As the new President of the ASP, Judge O-Gon Kwon announced that he will reach out to those States that have not yet ratified the Rome Statute of the ICC and will work closely with the ICC and civil society to promote universality.

3. The Office of the Prosecutor is steadfast in its commitment to the Rome Statute

The Prosecutor of the ICC, Ms. Fatou Bensouda, began her address to the ASP by stating that the ICC is a firmly rooted but still evolving institution and has a potential for global impact. The Office of the Prosecutor of the ICC is working jointly towards a culture of accountability for crimes of mass atrocities. The commitment of States Parties will be the key to determining the trajectories of this path. The investigations of Afghanistan and Burundi are indicators of the steadfast commitment of the Office of the Prosecutor of the ICC. Ms. Bensouda emphasized that Burundi’s withdrawal from the ICC has no effect on its continuing obligation to cooperate with the ICC or the period during which Burundi was an ICC State Party of the ICC. Ms. Bensouda ended her address to the ASP by reiterating that what is needed today is the strengthening of the ICC, and it would be up to the States Parties as custodians to stand firm to safeguard its values.

As the 16th session of the ASP continues, more themes such as these will emerge, highlighting the importance of the work of the ICC as well as that of the Office of the Prosecutor. Main plenary sessions will be complemented by side events hosted by nongovernmental organizations.

Follow the IntLawGrrls symposium for periodic posts on the ASP as it is happening!

This blogpost and my attendance to the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.

 

Partnership logoSSHRC-CRSH_FIP