‘Last resort:’ A final course of action, used only when all else has failed (Oxford Dictionary).

The Seventeenth Assembly of States Parties (ASP) has closed and one key takeaway is the need to have realistic expectations with respect to the role and capacity of the International Criminal Court (ICC) or ‘Court.’ This theme was woven into numerous side-events, especially those concerning complementarity and universal jurisdiction. 2018 marks the 20th anniversary of the Rome Statute. While the ICC continues to grow in its reach and impact, the institution has inherent and purposeful limitations. A fair assessment of the Court needs to be couched in terms of its intended scope, purpose, and place in the global landscape, which is highly specific. 

At the side-event “Justice, peace and security in Africa: deepening the role of the ICC,” hosted by the Coalition for the International Criminal Court and the African Network on International Criminal Justice, Phakiso Mochochoko (Office of the Prosecutor [OTP]) emphasized that the first question should never be, “Why isn’t the ICC doing something?” Such questions can and should be asked of the state and its institutions first. The ICC was never intended to be a first-responder or a sole responder.[1]The trigger mechanism for the Court’s involvement relies on the unwillingness or inability of the concerned state to investigate and prosecute those most responsible for atrocious crimes. This requires a lack of political will, a lack of capacity, or both. The scope is intentionally and inherently limited. Several side-events at the ASP reiterated that the ICC is one judicial mechanism for accountability, and one of last resort.[2]Scholars and practitioners need to focus on states, which have a primary obligation to investigate and prosecute these crimes in the interest of peace and security.

To this end, at the side-event “Complementarity and Cooperation Revisited: What role for the ICC in supporting national and hybrid investigations and prosecutions?” hosted by Luxembourg, North Korea, and Open Society Justice Initiative, Pascal Turlan (OTP) highlighted the importance of capacity building. Capacity building refers to both the legal framework and training of personnel in domestic institutions. Pascal sketched a coordinated relationship between the ICC and national mechanisms under the auspice of ‘positive complementarity.’ The ICC is willing to engage in cooperation measures such as information sharing or to engage in mutual assistance strategies in an effort to encourage national authorities to develop cases, or to assist in the investigation or prosecution of cases.[3]As noted above, if the ICC can prosecute, they can only do so against persons who bear the greatest responsibility for the alleged crimes. It would be up to national institutions to investigate and prosecute all others responsible and hold them criminally accountable. Theoretically, positive complementarity is highly useful in this regard and it should contribute to the proliferation of accountability and justice. 

Similarly, at the event titled “Commemorating the 20thanniversary of the Rome Statute,” H.E. Kimberly Prost expressed that complementarity should involve domestic, regional, and extra-territorial jurisdictions to battle impunity. She explained that this may require innovative solutions, such as those like the new court in Central African Republic and the IIIM in Syria, for example. Judge Prost said that productive dialogue cannot begin and end with a critique of the Court. Since no state can credibly oppose justice, alternative solutions need to be pursued. The capacity of states needs to be built so that the ICC becomes redundant, as intended by the drafters of the Rome Statute. Judge Prost’s contributions reflect a ‘back to basics’ approach. Complementarity is the bedrock of the Rome Statute System but is often neglected. This subjects the ICC to criticism and claims that it is not doing enough. States should look inward first to find ways to investigate and prosecute, either independently or with cooperative assistance and support from the ICC and/or other institutional mechanisms and/or organizations.  

Similar views were expressed by Karim Kham, Alain Werner and Carmen Cheung at the side-event “Closing the impunity gap: a pragmatic approach to universal jurisdiction.” Each one of these panelists explained that extra-territorial/judicial mechanisms, ad hoc tribunals, or other similar mechanisms are not mutually exclusive with the ICC. Karim said that it is important to reiterate that the ICC does not have a monopoly on justice. He explained that the goal is to close the impunity gap by whichever way(s) possible because justice is not politicized, it is ‘everybody’s business.’ 

The ICC plays an important role in the global landscape, but as pointed out by the intervention of Elise Keppler of Human Rights Watch at the side-event, “From Bemba to Rombhot: Reflections & Perspectives for the ICC in the Central African Republic,” the ‘one case, one suspect’ approach is likely insufficient for dealing with the broader realities of conflict. It is posed here that an ideal complementary schema might have national courts investigate and prosecute foot soldiers, a special/hybrid tribunal address mid-level officers and commanders, and the ICC deal with those most responsible for organizing and orchestrating the crime(s). This would be comprehensive and provide a greater possibility for accountability at all levels and sides of the conflict. Although social justice and legal justice are not the same, greater accountability and a strengthening of the rule of law at the local level can contribute to a (more) stable post-conflict environment. 

A holistic approach to justice will demand more than the ICC can provide. The Court is limited in its monetary and human resources, as well as its jurisdiction and scope. This is not to say that it has no utility or value. Rather, a more nuanced approach to complementarity can present important opportunities for justice and accountability by capacity building, strengthening domestic legal systems, and closing impunity gaps. This is an important step towards the goal of universal jurisdiction for atrocious crime. Framing critiques of the ICC within the principle of complementarity and universal jurisdiction can change the conversation in some significant and important ways. The ICC cannot do everything, nor is it supposed to. The potential role for complementary mechanisms to the ICC may be the best way to move the conversation (and the international criminal justice project) forward.   

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


[1]The Rome Statute of the International Criminal Court, A/CONF.183/9 (17 July 1998): Preamble, Article 17, “The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”  

[2]This was a strong focus at the December 5 side-event, “Commemorating the 20thanniversary of the Rome Statute,” co-hosted by the Netherlands, Uganda, and Africa Legal Aid. This was a focus of H.E Kimberly Prost.

[3]There are limitations to this, for example the ICC will not share information if the alleged suspect could receive the death penalty, or if basic rule-of-law principles such as a right to a fair trial are not firmly established in the domestic context.

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ICC Assembly of States Parties 2018: Final Day

 

ASP

[photo credit: @NLatICC via Twitter]

The final day of the ICC Assembly of States Parties was marked by highs and lows.

In positive news, Assembly attendees learned that Patrice-Edouard Ngaïssona had been arrested by French authorities pursuant to an arrest warrant issued by Pre-Trial Chamber II on December 7. The warrant alleges that Ngaïssona bears criminal responsibility for war crimes and crimes against humanity committed in the western part of the Central African Republic (CAR) between at least December 5, 2013 and at least December 2014. The Chamber was satisfied that there are reasonable grounds to believe that an internal armed conflict was ongoing in the CAR between the Seleka – a coalition of armed groups predominantly composed of Muslim fighters – and the Anti-Balaka – a predominantly Christian countermovement to the Seleka. The Chamber also found that there are reasonable grounds to believe that, from at least September 2013 until at least December 2014, a widespread and systematic attack was carried out by the Anti-Balaka against the Muslim civilian population and anyone perceived to support the Seleka. Ngaïssona was the most senior leader and the National General Coordinator of the Anti-Balaka.

In less positive news, the Assembly approved the 2019 budget of the ICC at €148,135,100. This represents a very small increase over 2018 of .49%. The Committee on Budget and Finance (CBF) had recommended a .6% increase, and therefore the approved budget is lower than the CBF recommendation by €150,000. For those inside and outside of the Court who felt that the CBF recommendation should represent a floor, this further cut was worrisome. The Court had requested a 2.4% increase. In real terms, this .49% increase does not keep pace with inflation, is a de facto budget decrease, and severely limits the number of preliminary examinations, situations and cases the Prosecutor can pursue on an annual basis. Ten states – Argentina, Belgium, Costa Rica, Finland, Liechtenstein, Luxembourg, Netherlands, Slovenia, Sweden and Switzerland – issued a strong statement of disappointment with the annual Assembly budgetary process as continually leading to the underfunding of key ICC roles.

States Parties also adopted the Omnibus resolution, which states:

“The Assembly of States Parties reconfirms its unwavering support for the Court as an independent and impartial judicial institution, reiterates its commitment to uphold and defend the principles and values enshrined in the Rome Statute and to preserve its integrity undeterred by any threats against the Court, its officials and those cooperating with it, and renews its resolve to stand united against impunity.”

States Parties additionally adopted the Report of the Credentials Committee and the Report on the 17th session of the Assembly. The dates of the 2019 ASP have not yet been decided, but the date and venue should be announced by January 31, 2019.

Today, Catherine Savard returns to blogging for the IntLawGrrls symposium, having also participated in 2017. Her three-part blog post focuses on the ICC Prosecutor’s preliminary examinations.

Catherine is Assistant Coordinator with the Canadian Partnership for International Justice and member of the Canada Research Chair on International Criminal Justice and Human Rights. She is currently pursuing a Master’s degree in international law at Université Laval (Canada) under the supervision of Prof. Fannie Lafontaine. Her research interests are international criminal, humanitarian and humanCatherine rights law. She recently represented her university at the Jean-Pictet international humanitarian law competition and will represent it again in 2019 the context of the Charles-Rousseau public international law competition. She has also been very involved with the Université Laval’s International Criminal and Humanitarian Law Clinic, for which she has completed nearly 10 research mandates. Her research focusses on modes of liability in international criminal law, sexual and gender-based violence and cultural genocide of Indigenous peoples in Canada.

A heartfelt welcome back, Catherine!

ICC Assembly of States Parties 2018: Day Six

FIDH

[photo credit: FIDH. This image graces the cover of FIDH’s recently-released report, Victims at the Center of Justice: Reflections on the Promises and the Reality of Victim Participation at the ICC (1998-2018)]

Day Six of the ICC Assembly of States Parties began with a two hour plenary discussion titled “Achievements and challenges regarding victims’ participation and legal representation after 20 years of the adoption of the Rome Statute” organized by Argentina and the United Kingdom as co-facilitators. States Parties, Court officials and civil society representatives were invited to share their views on questions such as: at what stages may victims participate, which victims may participate, what does participation mean in practice, and how does legal representation work? Themes emerging from this discussion included the ethical and legal obligations owed to victims, ensuring that victims do not feel used by the ICC, calls for the re-establishment of a focal point for victims, and the streamlining of the ICC’s victim participation process. A number of side events on victim-related issues were also held today, summarized here by the Coalition for the ICC.

Following the plenary discussion, States Parties adopted three resolutions. One resolution addressed the amendment of Rule 26 of the Rules of Procedure and Evidence – which addresses the receipt of misconduct complaints against ICC judges, the Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar – to make the Rule fit better with the mandate of the Independent Oversight Mechanism. The other resolutions focused on cooperation and remuneration of the judges. States Parties also discussed the budget, and introduced a draft resolution on the budget in the afternoon. States Parties additionally considered a draft of the omnibus resolution in the afternoon.

I extend a heartfelt welcome to Marie Prigent, who joins the IntLawGrrls symposium with a post on the Assembly, which she is attending with the Canadian Partnership for International Justice.

Marie holds a Master’s degree of International and Comparative Law from Toulouse 1 Capitole University in France. She studied international law abroad, at the Complutense University of Madrid and Université Laval in Quebec. She then joined Université Laval’sPHOTO CV International Criminal and Humanitarian Law Clinic in January 2018 and continues her work as a research intern. Her researches focused on transitional justice, amnesty laws, victims’ participation and rights of human rights defenders. Her fields of interest include criminal, humanitarian and human rights law. She will prepare for the Quebec bar exam from January 2019.

 

ICC Assembly of States Parties 2018: Day Five

UNDR

Photo credit: United Nations Archives. A group of visitors from Japan look at the Universal Declaration of Human Rights during a visit to the UN’s temporary headquarters at Lake Success in February 1950.

Today – December 10, the 70th anniversary of the Universal Declaration of Human Rights – the 2018 ICC Assembly of States Parties resumed after a one day break. The main focus of the day was on the ICC’s budget. The ICC’s Registrar, Peter Lewis, and the Chair of the Committee on Budget and Finance (CBF), Hitoshi Kozaki (Japan), both presented. The Assembly then considered the audit reports.

The organs of the ICC have jointly presented a budget request for just over 151 million Euros, while the CBF recommended a budget of 144.87 million Euros. A number of NGOs, including the Coalition for an ICC, have urged states to consider the CBF recommendations as the bare minimum  budget for the 2019 budget discussions, as opposed to the starting point from which to cut.

An important side-event took place today titled “Call it what it is: Campaign to define sexual violence”. It was organized by the Women’s Initiatives for Gender Justice (WIGJ) and co-hosted by Argentina, Australia, Canada, Costa Rica, New Zealand, Republic of Korea, Sweden, Switzerland, United Kingdom and WIGJ. Melisa Handl is contributing two blog posts today to this IntLawGrrls symposium on this topic. Melissa is attending the ICC Assembly of States Parties with the Canadian Partnership for International Justice (CPIJ).

Melisa is a lawyer from Argentina and a Ph.D. student in the Faculty of Law at the University of Ottawa (Canada). Her research interests include international law, gender, development, qualitative research, and international human rights. Melisa holds a Master of Arts in International Affairs with specialization in “International Institutions and Global Governance” from the Norman Paterson School of International Affairs (Canada). Melisa also holds a Master of Laws from the University of Ottawa with aDSC_0316 specialization in Human Rights and Social Justice. She is currently investigating whether conditional cash transfers are contributing to greater gender equality in the context of Argentina, and intends to connect a top-down approach to international human rights with the experiences of actual beneficiary women on the ground. She is part of a Canada-Mexico project which involves training Mexican judges on issues related to international human rights and is in charge of the “Violence Against Women and Gender” workshop. She is working with Professor and CPIJ Co-Researcher Penelope Simons on corporate accountability, gender, and the extractive industry and specifically, writing about gendering the United Nations Guiding Principles on Business and Human Rights from a socio-legal feminist methodology.

A heartfelt welcome to Melisa to this IntLawGrrls symposium!

Carrots, Sticks, and the ICC: Prospects for Cooperation? Part 1

The third day of the Assembly of States Parties (ASP) to the International Criminal Court (ICC) or ‘Court’ pivoted around the issue of cooperation. A side event was organized by the Institute for Security Studies (ISS) and the Embassy of Ireland titled, “Cooperation with the ICC: What the Security Council and ASP Must Do.” Panelists included Allan Ngari (ISS), Phakiso Mochochoko (Head of the Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor), Matt Cannock (Amnesty International) and H.E. Ambassador Kevin Kelly (Ireland). 

The panelists argued that non-cooperation by states severely limits the effectiveness of the ICC, and the United Nations Security Council (UNSC) and the ASP can do something about it. Matt Cannock explained that a stronger approach to cooperation is needed. The UNSC has referred two situations to the ICC – Darfur (2005) and Libya (2011) – where crimes occurred on the territory of non-States parties to the Rome Statute. In both situations, the UNSC imposed an obligation of cooperation only on the state involved(i.e. Sudan or Libya).[1]For other states who are not party to the Rome Statute, the UNSC has explicitly outlined in its referrals that there are no binding obligations in relation to the Court to cooperate, but also added language “urg[ing]all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor.”[2]Cannock framed this voluntary cooperation obligation under the current regime in terms of the metaphorical ‘carrot and stick.’ He posited that the current approach is ‘more carrot than stick’ and explained that a ‘sharpened carrot’ could yield better results. He explained that this can be achieved through UNSC and UN General Assembly follow-ups to acts of non-cooperation with the ICC. 

Allan Ngari and Matt Cannock both emphasized the need for the UNSC to impose cooperation obligations under all members states of the UN. This would be consistent with the procedure that was taken when the Council established the ad hoctribunals for the former Yugoslavia and Rwanda. The ISS provided a document at the side-event, which outlines this and other key recommendations.[3]Regarding the UNSC, some specific examples include: (1) the Council should impose cooperation obligations on all states; (2) not restrict or bar UN funding for investigations and prosecutions; (3) not seek to limit the jurisdiction of the ICC over persons relevant to the situation; and (4) it should adopt explicit language lifting any immunities that might hinder ICC prosecution, especially those involving state officials or non-states parties. With respect to the ASP, it is recommended that findings of non-cooperation be routinely responded to, and the ASP should ask the UNSC and the UN General Assembly to take appropriate measures. Both Ngari and Cannock described a relationship between the UNSC and ICC based on mutual reinforcement in order to achieve the overall goal of enhanced cooperation.     

Phakiso Mochochoko offered a different perspective and confronted the pervasive challenges that stem from the ICC-UNSC dichotomy. Focusing on cooperation with respect to arrests, he was less optimistic. The investigation and prosecution stages require little (if anything) from the UNSC. On the other hand, arrests require assistance, particularly when the referral was made by the Council. Mochochoko explained that the Prosecutor has begged and pleaded to the UNSC for help, but nothing happens. He argued that the fundamental difficulty lies with the often-cited issue that permanent members United States, China, and Russia are not members orsupporters of the ICC. This combative environment makes cooperation unlikely. While the UNSC referred the situations in Sudan and Libya to the Court, these referrals came with no substantive political support or backing. As a result, Mochochoko posited that the UNSC referrals are a ‘poison chalice,’ and the source of the attacks that the ICC is facing (i.e. effectiveness, legitimacy). Therefore, opposition from permanent members of the UNSC towards the ICC is good, since referrals will not be made. This way, the ICC can go about its work on its own, without having to rely on the UNSC.  

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


[1]See: Operative paragraph 2, UN Security Council Resolution 1593 (2005); Operative paragraph 5, UN Security Council Resolution 1970 (2011).

[2]International Criminal Court, Assembly of States Parties, Report of the Bureau on non-cooperation, ICC-ASP/17/31 (28 November 2018) available at: https://asp.icc-cpi.int/iccdocs/asp_docs/ASP17/ICC-ASP-17-31-ENG.pdf, p. 23. Regarding the obligation of states parties see: Rome Statute of the International Criminal Court, A/CONF.183/9 (17 July 1998), Article 89: States Parties are obliged to execute the Court’s pending orders for the arrest and surrender of a person. 

[3]Dapo Akande, “Cooperation with the ICC: What the Security Council and ASP must do,” Institute for Security Studies, (December 2018): www.issafrica.org: this is a preliminary document. The complete ISS report on how the Security Council can promote state cooperation with the ICC is forthcoming. 

ICC Assembly of States Parties 2018: Day Four

Yesterday, the fourth day of the ICC’s Assembly of States Parties, was focused on consulations on the annual ‘omnibus’ resolution, which is titled “Strengthening the International Criminal Court and the Assembly of States Parties”. This resolution is usually quite lengthy, as the 2017 resolution shows – and covers a wide range of issues. It addresses the goal of universal ratification of the Rome Statute, and invites states not yet parties to the Rome Statute to ratify. It also reiterates the obligations of States Parties under the Agreement on the Privileges and Immunities of the ICC. It calls upon States Parties to cooperate – legally, politically and diplomatically – with the Court, including on arresting individuals for whom a warrant of arrest has been issued. Other issues it tends to cover are: the relationship of the ICC with the United Nations and other international organizations, the relationship with the Netherlands as host state, the activities of the Court (such as the Prosecutor’s implementation of her office’s Policy Paper on Sexual and Gender-Based Crimes), upcoming elections, working methods, issues related to victims, staff recruitment, complementarity, the Independent Oversight Mechanism, the budget, amendments and participation in the Assembly. Negotiations on this resolution will continue on Monday, December 10th.

A number of side-events also took place on the fourth day of the Assembly, including sessions on the prosecution of war crimes in Iraqi Kurdistan, the situation in Georgia, the role of Latin America and the Caribbean in the adoption of the Rome Statute, transitional justice in Mexico, and the link between the ICC and environmental law.

With this post, I introduce Sarah Nimigan, who is blogging for IntLawGrrls today. She is currently at the Assembly as a delegate of the Canadian Partership for International Justice. Sarah is a Ph.D. candidate in the Department of Political Science at the University of Western Ontario (Canada) with specialization in Transitional Justice and Post-Conflict Reconstruction. Her dissertation addresses the problems facing the International Criminal Court through the African experience. More specifically, her research traces theSarah Nimigan active role taken by various African delegations in negotiating the Rome Statute from 1993-1998 to better explain and situate the criticisms levied against the ICC today. She holds an LL.M. in International Human Rights Law from the University of Exeter (United Kingdom) and a Master of Arts in Political Science with specialization in Migration and Ethnic Relations. Both her LL.M. and M.A. degrees focused on sexual and gender-based crimes within the contexts of international criminal law and transitional justice.

Heartfelt welcome to Sarah!

ICC Assembly of States Parties 2018: Day Three

Slovenia Signing ICC

Day three of the 2018 ICC Assembly of States Parties focused on state cooperation and the 20th anniversary of the Rome Statute.

The day opened with a special plenary meeting on the topic of “20 Years After Rome: Back to the Major Challenges of Cooperation”.  The discussion focused on cooperation related to arrests, financial and other types of investigations, and enforcement of sentences. Slovenia signed its agreement on enforcement of sentences with the ICC at the plenary [above, photo credit: CICC]. Many states made three minute interventions during this plenary, including Austria for the European Union, Belgium, Brazil, Chile, Costa Rica, Czech Republic, Ecuador, El Salvador, Japan, Mali, Mexico, Netherlands, Norway, Palestine, South Korea, Spain, Uganda, Uruguay, United Kingdom and Venezuela. Spain pledged to enter into additional cooperation agreements with the ICC.

The afternoon plenary was titled “Rome Statute 20 years – Addressing current and future challenges”. The plenary began with a video on the 20th anniversary, available here. This was followed by a panel discussion with representatives of the African Union, Chile, the Coalition for an ICC (CICC), Costa Rica and Romania, and Prof. John Dugard of Leiden University. This was followed by state interventions. As noted by Bill Pace of the CICC, and echoed by others, some of the innovations of the Rome Statute are under threat today.

The General Debate also resumed today, with seven civil society speakers taking the floor to make statements, including Human Rights Watch.

The day was packed with 12 side events, and a reception hosted by the CICC and the City of The Hague. For an excellent summary of these side-events, please see the CICC’s summaries here.

Marie-Laure Tapp joins the IntLawGrrls symposium today with a two-part blog post on domestic prosecutions of individuals for war crimes and crimes against humanity in the Syrian conflict.

Marie-Laure is a lawyer and LL.M. Candidate (International and Transnational Law) at Université Laval. She holds a B.A. in Political Science and International Development from McGill University and degrees in Civil Law and Common Law, also from McGill University. She completed her articles at the International Committee of the Red Cross (ICRC) in Geneva and subsequently worked as a volunteer legal advisor in Mali with Lawyers Without Borders Canada and in Nepal with the International Institute for Democracy and Electoral Assistance. She was involved with Université Laval’s

Marie-Laure Tapp

Marie-Laure Tapp

International Criminal and Humanitarian Law Clinic and works as a translator and team supervisor for the translation of the Updated Commentary on the Second Geneva Convention, a partnership between Université Laval and the ICRC Delegation in Paris. Her main areas of interest (which are numerous) are the respect and dissemination of international humanitarian law and, on the international criminal law front, the principle of complementarity and universal jurisdiction. She is also very much interested in human rights investigation and advocacy. She has also been involved in several human rights education and access to justice initiatives over the past 10 years.

A heartfelt welcome to Marie-Laure to this IntLawGrrls symposium!