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

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

The first day of the 15th Session of the Assembly of States Parties of the Rome Statute of the International Criminal Court meeting consisted of the opening plenary session in which the agenda for the 15th Session was adopted together with some other administrative matters including the appointment of the of Credentials Committee and the election of members to the Budget and Finance Committee. A number of key individuals also made speeches. The United Nations High Commissioner for Human Rights, Zeid bin Ra’ad Al Hussein, emphasised that in the face of the recent withdrawals by three states: South Africa, Burundi, and Gambia, and with further withdrawals potentially in the offing, it is necessary for States Parties to defend the Court and not to abandon it. He also stated that Article 27 of the Rome Statute, which provides that the official capacity of individuals is irrelevant in determining their criminal responsibility and that a person’s official capacity, including as a head of state, does not mean that they have immunity before the Court, is one of the most important elements of the Statute and must be defended.

The President of the Court also spoke; she explained that the Court is very committed listening to the concerns engaged by African nations and was open to dialogue. She also confirmed that a retreat would take place next year in Addis Ababa to provide an opportunity for discussions with African States Parties. The Chief Prosecutor of the ICC, Fatou Bensouda, noted her disappointment that three States had withdrawn from the Statute, but said that she respected it as a sovereign act. She also emphasised that the withdrawals didn’t represent a crisis for the Rome Statute system but that it is a setback.

In the second plenary session, States began to make their opening statements. During that session the representative of the Republic of South Africa spoke. He said that despite his country’s decision to withdraw from the Rome Statute its commitment to human rights and the fight against impunity remains unwavering. He said that South Africa’s decision to withdraw was made with very careful consideration in relation to its international obligations and its role in peacemaking on the African continent. The representative went on to repeat the justifications that it has previously given for withdrawing from the Rome Statute; it stated that it was placed in the unenviable position of being caught between its obligations to the ICC under the Statute and its other obligations to provide diplomatic immunity.

He went on to say that his country’s request for a consideration of the relationship between Articles 27 and 98 of the Rome Statute was ignored and has not been taken up by either the ASP or the Bureau. He further explained that in complex and multifaceted peace negotiations, peace and justice must be viewed as complementary, and that international law must not be applied with an idealistic view. He noted that there are perceptions of inequality and unfairness in the practice of ICC, and that these don’t just emanate from the relationship between the ICC and UN Security Council but because of the focus of African situations and ignoring crimes committed in other parts of the world. He concluded by stating South Africa will not became a safe haven for fugitives especially for those that have committed atrocities and grave crimes.

In his speech, the representative of Canada, dismissed the concerns of bias raised by the withdrawing African states, noting that there have been three self-referrals and two situations in Africa have been referred to the Court by the UN Security Council. He however also explained that there are some legitimate issues raised by States; he said that Canada recognised that arresting sitting heads of state may have a detrimental impact on peace negotiations but also that those who have committed crimes could stay in office to avoid prosecution. He concluded by stating that the world needs the ICC but the ICC also needs us, the States Parties. Botswana reaffirmed its commitment to the Court but it representative also explained that her country believes that where there are legitimate concerns it is the responsibility of this Assembly to engage in dialogue. Similarly, the representative of the Democratic Republic of Congo confirmed his country’s commitment to the Court but also stated that it believes that it is now the time for the Assembly to take a careful look at the concerns raised by a number of states.

Costa Rica acknowledged that in light of the withdrawals dialogue is required but also emphasised that any such dialogue should not lead to loopholes in the Statute which could promote impunity. Finland similarly acknowledged that dialogue was required but also noted that the fundamental principles of the Rome Statute must be respected. Throughout the session there were also several references to the Court needing to be properly funded if it is going to be able to discharge its mandate effectively.

The overall theme that appeared to come out on the first day, and which will no doubt likely continue, is the need for states to robustly defend the Rome Statute and the ICC in the face of attack but that the ASP needs to listen to the concerns that have been raised by many states and to engage with dialogue with them. The need for dialogue has been raised by many states and this has been acknowledge by a number of the Court’s representatives.

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