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.