Report from Day Two of the 15th Assembly of States Parties to the Rome Statute of the International Criminal Court

Report from Day Two of the 15th Assembly of States Parties to the Rome Statute of the International Criminal Court

Day two of the 15th Assembly of States Parties Meeting consisted of two further plenary sessions in which states continued to make their statements about the ICC. There are too many speeches to list them all here and to explain the content of each of the interventions, but the main issues that were raised will be outlined and important interventions will be identified.

As occurred on the first day, the vast majority of States Parties expressed their unwavering support for the Court as well as their commitment to its work and objectives of ending impunity, providing justice and reparations for victims, and helping to facilitate the restoration of peace. It was described by the representative of the Czech Republic as ‘an integral part of the international criminal justice system’.

Many states also emphasised the importance of continuing to work towards the universalisation of the Rome Statute and expressed their pleasure that El Salvador had recently acceded to the Statute. The Brazilian representative said that one of the ways to address the perception of bias on the part of the ICC was to expand the space in which the Court was able to operate. It was emphasised by Jordan that given the challenges that the Court is facing, states need to re-double their efforts to bring about universal membership of the Statute. There were also a number of references to, and expressions of satisfaction that, 30 States Parties had ratified the Kampala amendments which would allow further steps to be taken to activate the ICC’s jurisdiction over the crime of aggression.

A large number of states also recorded their regret, disappointment, and frustration that South Africa, Burundi, and the Gambia, decided to withdraw from the Court, and expressed hope that those states would reflect upon, and reconsider, their decisions to leave the Court.

With the withdrawals seemingly at the forefront of their minds, the majority of states, including many African States Parties, expressed the view that there needs to be constructive dialogue with African states and for the Court and States Parties to take account of and to consider the concerns and issues that they have raised. Tunisia said that ‘the recent withdrawals by three African states commend us to make a comprehensive review of the ICC-African relationship in order to move forward’. It was said on many occasions that the Assembly of States Parties meeting provides an opportunity to engage in such dialogue and many states expressed their willingness and readiness to engage in such an initiative.

However, whilst acknowledging the need for constructive dialogue, a number of states emphasised that such dialogue must be conducted within the framework of the Rome Statute system and must not undermine the integrity of the Statute or its fundamental underpinning principles. This suggests that the majority of states, whilst being open to discussing and engaging with the concerns raised by some African States Parties, are not willing to compromise on the cornerstone principles of the Statute.

 

  • A few notable interventions:
    • The representative of Burundi spoke at length during the session and cited a number of issues which influenced its decision to withdraw from the Rome Statute including: the failure of the court to allow Burundi to conduct its own investigations and prosecutions pursuant to the complementarity principle and the failure by the Prosecutor to engage with the country is a sensitive and in accordance with the provisions of the Rome Statute.
    • The representative of Kenya said African states had been confronted with hostility and negative perceptions which undermined their engagement. It was further noted that the ICC faces a test with regard to its authority and its legitimacy, and emphasised the need for a frank and open dialogue amongst states as well as the need for the Assembly to consider making changes to the Rome Statue.
    • The representative of Namibia tentatively raised his country’s concern about the legitimacy of subjecting non-States Parties to the Rome Statute’s rules concerning the non-availability of immunities by way of UN Security Council referrals, on the basis that such states have not agreed to the application of such rules.
    • China, an observer state, emphasised that the Court needs to take into account general customary international law, and particularly customary international law immunity rules, which it noted have been outlined by the ICJ, and that states need to discuss the issue of immunities, or lack thereof, before the ICC ‘in order to build a consensus’. Its representative also stated that with regard to the crime of aggression, any work that the Court does in respect of the matter should not interfere with the UN Security Council’s primary responsibility for the maintenance of international peace and security.

 

It is important to note that the concerns expressed about the ICC were not limited to a number of states. A great number of African states expressed the view that there are issues that need to be looked at and addressed. There was also very widespread expression of the need to engage in constructive dialogue with African states to address the issues that have been raised and to take a critical look at the Rome Statute and the work of the ICC. This suggests that at least some of the concerns that have been raised by states, including those states that have decided to withdraw from the Rome Statute, are legitimate, or at least potentially legitimate, and deserve proper consideration. This dispels the idea that the concerns that are being raised are purely self-serving and do not merits consideration. This is undoubtedly an important realisation for the Assembly of States Parties.

 

 

 

NGOs Meeting with the Chief Prosecutor of the ICC

On Thursday 17th November, representatives of NGOs met with the Chief Prosecutor of the ICC, Fatou Bensouda, to ask questions and to raise their concerns and issues with her. The meeting was very well attended and Ms Bensouda’s attendance was gratefully received. Ms Bensouda began the session by addressing the issue of the recent withdrawals of three African States Parties: South Africa, Burundi, and The Gambia. She reiterated the view that she has previously expressed that it is not a crisis for the court but that it is setback. Ms Bensouda also explained that States Parties and NGOs need to take leadership in addressing the issue because the court neither has the time or the resources to do so, and because the Office of the Prosecutor cannot comment on all political issues.

Ms Bensouda also raised the issue of the budget and explained that if the court is going to be the effective institution that everyone wants it to be it needs sufficient resources. She explained that a lack of sufficient resources caused problems for the Court such as having to prioritise certain cases which then led to perceptions of bias. She noted that she was very sensitive to the economic issues of states but emphasised the Court has been entrusted with a serious mandate to investigate and prosecute serious crimes, and it needs the resources to do that properly. The Chief Prosecutor also said that the Court wanted to open a third courtroom so that three trials could take place at the same time, and that this would reduce the time for cases to be completed, but that this was not possible without additional resources.

After these opening remarks the floor was opened for questions. A question was asked about how the OTP would avoid one-sided investigations and prosecutions with regard to its investigation in Georgia given Russia’s lack of cooperation and its very recent decision to un-sign the Rome Statute. The Prosecutor responded by stating that she was fully cognisant of such an issue, that the situation was an evolving one, and that her team would be exploring all of the alternative means of obtaining evidence in the absence of Russian cooperation to ensure that investigations and any subsequent prosecutions are not one-sided. She concluded by emphasising that the OTP will not just stop an investigation because of a lack of cooperation by one party.

In response to other questions Ms Bensouda explained that investigations were still ongoing in Mali and also in the DRC. She also noted that the ICC was unable to exercise jurisdiction over the crimes committed against the Yazidi minority in Iraq because Iraq was not a party to the Rome Statute and the Security Council had not referred the situation to the Court. She also confirmed that the Court would not be calling on the Security Council to refer the situation because that was not the correct function of the Court. Ms Bensouda also explained that the investigation in Afghanistan was ongoing and that further information would be provided in due course.

Finally, in response to a question as to whether the OTP would commence an investigation and also initiate prosecutions in advance of the date on which Burundi would be officially withdrawn from the Rome Statute, the Chief Prosecutor stated that she had informed the government of Burundi that there notification of withdrawal from the Court in accordance with Article 127 of the Rome Statute does not affect the preliminary investigation or their obligations under the Statute. She also explained that the OTP’s preliminary investigation was ongoing and that it would be difficult.

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