Chiaroscuro at the Assembly of States Parties to the Rome Statute of the International Criminal Court

Chiaroscuro at the Assembly of States Parties to the Rome Statute of the International Criminal Court

by Jutta F. Bertram-Nothnagel

The Assembly of States Parties to the Rome Statute of the International Criminal Court met for its 14th session in The Hague, 18-26 November 2015. The Assembly provides management oversight to the Presidency, the Prosecutor and the Registrar of the International Criminal Court with regard to the Court’s administration. The Assembly’s tasks, spelled out in article 112 of the Rome Statute, include also the decision on the budget, consideration and action with regard to the reports of the Bureau, and questions of non-cooperation by States with the Court. The annual sessions of the Assembly, held either in New York or The Hague, are preceded throughout the year by meetings of the Assembly’s subsidiary bodies, such as the Bureau, the New York Working Group, the Hague Working Group, the Working Group on Amendments, and the Committee on Budget and Finance. In accordance with article 112(4), of the Rome Statute, the Assembly has also established an Independent Oversight Mechanism “for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy”. (See ICC-ASP/12/Res.6.) States that have not ratified but merely signed the Rome Statute, - or signed the Final Act of the 1998 Diplomatic Conference that adopted the Statute -, may participate in the Assembly as non-voting observers.  Other States may be invited as well. The UIA regularly attends the sessions of the Assembly and many of the inter-sessional meetings as a non-governmental participant.

At the 14th session, the plenary of the Assembly dedicated half-day debates to cooperation, the efficiency and effectiveness of the Court, and to complementarity. (The jurisdiction of the Court is complementary to primary national jurisdiction.)  A myriad of other meetings and side events focused on such topics as the situations in Syria and Burundi, the Court’s relationship with Africa, the confirmation of charges, digital evidence, financial investigations, the development toward a multilateral treaty for mutual assistance and extradition for domestic prosecution of atrocity crimes. Maybe the most dominant markers of the 14th session were supplementary agenda items that had been requested by Kenya and South Africa (ICC-ASP/14/35 with Annex I and II). More about these below. Altogether, the session was characterized by an astonishing contrast between highly positive and highly negative developments.

On the positive side:

The Court’s own premises have been completed. In the course of December, the Court is moving into its new home set in the dunes at the edge of The Hague. The non-governmental Coalition for the International Criminal Court [CICC], together with the City of The Hague, held a reception at the new address, with speeches by among others the President of the Court, the Prosecutor and the Registrar.  Especially for those who remember when the Court seemed merely a distant vision, the physical realization of the Court’s array of buildings held special meaning. 

In another confident move forward, the Assembly of States Parties agreed to delete Article 124 of the Rome Statute. The provision permitted a State to declare upon ratification of the Rome Statute that it does not accept the Court’s jurisdiction over war crimes for a period of 7 years.  The provision was originally intended to advance universal ratification of the Rome Statute. Only two States, Colombia and France, have ever made use of the opt-out under article 124.  In the meantime, the provision has been no longer considered sufficiently useful. In accordance with article 121(4) of the Rome Statute, the deletion will enter into force for all States Parties once seven eighth of them have ratified the amendment. The UIA, its collective members, and other bar associations can contribute to the entry into force of the deletion by encouraging governments to consider ratification.

At a meeting on the crime of aggression, Finland and Lithuania announced that their processes towards ratification of the Kampala amendments on this crime and on certain war crimes concerning the use of illegal weapons were close to completion. 24 States have already ratified the provisions on the crime of aggression. Two events determine the special starting point for the Court’s exercise of jurisdiction over this crime: The accomplishment of 30 ratifications (plus one year) and an activating decision by the Assembly of States Parties “as soon as possible” after 1 January 2017. It is quite likely that 30 ratifications will be reached in the course of 2016.

Progress towards a new Association of Counsel or Bar Association for the ICC, most likely composed of List Counsel and List Counsel Associates at the ICC, was generally seen as another promising development. Julie Goffin has closely followed this topic on behalf of the UIA. The establishment of such a new ICC Association of Counsel will be an important pillar for due process at the Court. At the same time, the UIA has argued that the creation of this association does not make it superfluous to maintain an independent office for the defense within the Court. For the work of Counsel before the Court, it will be also important that more States ratify the Agreement on Privileges and Immunities of the International Criminal Court.  Article 18 of the Agreement provides a list of protections for Counsel. The Agreement is also open to States that are not Parties to the Rome Statute.

Next to the light-filled moments of the 14th session, shadows loomed large:

To a troubling degree, the session was filled with tension and an unusual amount of acrimony around an agenda item that had been sponsored by Kenya yet perceived by many other States Parties and even more nongovernmental organizations as a threat to the independence of the Court. Kenya pursued two quests:

One was related to a Petition to the UN Security Council and the Presidency of the Assembly signed by 190 Kenyan Parliamentarians. The Petition asked for the appointment of “a mechanism to audit the Prosecutor’s witness identification and recruitment processes in the in the case of Prosecutor v. William Samoei Ruto and Joshua Arap Sang ... to establish the impartiality of the process and determine the current allegations and revelations of procuring and coaching of witnesses to implicate the accused ...” and the suspension of the cases of the two Kenyans “while awaiting determination of this independent audit.”  The Kenyan delegation to the 14th session of the Assembly included over 60 Kenyan Parliamentarians. Kenya urged that an ad hoc mechanism of five independent jurists should be set up to verify the allegations against the Prosecutor.

The other quest concerned the application of Rule 68 of the Rules of Procedure and Evidence. On 27 November 2013, during its 12th session, the Assembly had adopted amendments to Rule 68 that would permit, under a rather complex set of parameters and conditions, the use of prior recorded testimony (ICC-ASP/12/Res.7). On 29 April 2015, the Prosecutor filed a request to admit prior recorded statements in the case Prosecutor v. William Samoei Ruto and Joshua Arap Sang. Trial Chamber V decided on 19 August 2015 to admit such statements. The matter is under appeal. Kenya argued before and during the 14th session that the amendments should not be applied retroactively to situations commencing before the date of their adoption. Kenya pointed in this regard to articles 51(4) and 24 of the Rome Statute and particularly to assurances against retroactivity given during the 12th session. (According to article 51(4), “[a]mendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted.” Article 24(2) provides: “In the event of a change in the law applicable to a given case prior to a final judgment, the law more favourable to the person being investigated, prosecuted or convicted shall apply.”) In a note verbale to the President of the Assembly Kenya stated on 4 September 2015: “Moreover, specifically and crucially, Kenya was expressly informed that there would be no attempt to apply the amended Rule 68 in the trials underway before the Court and more particularly so, in the trials relating to the situation in the Republic of Kenya.” The note verbale criticizes the Court’s action as a “legal and moral hazard” that “undermines the legislative oversight of the Assembly”.  Kenya wanted “all necessary steps to ensure that the sanctity of consensus and decisions of the Assembly are respected by all.” Many other State Parties as well as many non-governmental organizations argued that the matter should be left to the Court to decide. Kenya softened its argument in the course of the debate somewhat, arguing that it merely wanted an affirmation of the original legislative intent in 2013 (rather than an Assembly decision, including about detail in the interpretation of non-retroactivity).

Towards the end of the session, the question boiled down to if and how the issues should be taken up, e.g. whether they should be only reflected in the records of the session or taken up in the manner of a decision, e.g. in the so-called ‘omnibus’ resolution (i.e. the annual resolution on “Strengthening the International Criminal Court and the Assembly of States Parties”), and what wording to use.  (Kenya submitted a proposal in writing that would have tied the evaluation of retroactivity explicitly to the commencement of situations (instead of, for example, the commencement of proceedings). Under the proposal, the Bureau of the Assembly would also have been mandated to further discuss the “emerging credible concerns ... highlighted in the Petition by 190 legislators ... with a view of taking urgent and appropriate action.”) In light of the existing Independent Oversight Mechanism, there was not much chance for a special audit mechanism about the Prosecutor, notably not along the lines envisioned in the Petition. With regard to the non-retroactivity issue, the considerations were more complex, as they concern the separation of legislative, juridical and administrative powers on the international level. Ultimately a more generic reference to non-retroactivity will be included in the records of the session, but not in a resolution and not in the detail proposed by Kenya, - so as not to direct or bind the Court in the middle of the concerned proceedings.

Truly upsetting in the course of the debate was the vehemence and threatening tone used against non-governmental organizations that had voiced criticism of Kenya and also of Burundi. Kenya accused the Benin Coalition for the International Criminal Court of being a terrorist organization after that Coalition offered counterarguments to Kenya. Burundi did the same with regard to the Burundi Coalition for the International Criminal Court, after that Coalition warned of the risk of genocide in Burundi. The reactions by Kenya and Burundi, going way beyond the usual diplomatic discourse, were truly frightening. Even more so because they are also symptomatic of a more widespread increase in threats to human rights defenders around the world. According to information from the CICC, the government of Burundi has now issued an ordinance suspending several non-governmental organizations, closed bank accounts and accused the Burundi Coalition for the International Criminal Court of arming [!] groups in Burundi.

South Africa’s supplementary agenda item looked on first sight like a deliberate attempt to weaken article 27 of the Rome Statute which provides that the Statute applies equally to all persons without distinction based on official capacity. “In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute ... “ Immunities that may attach to official capacity do not bar the Court from exercising its jurisdiction. Indispensable for ending impunity, Article 27 goes to the essence of the Court, to its raison d’être. The agenda item concerned the “application and interpretation of article 97 and article 98 of the Rome Statute”.  Article 97 requests consultation with the Court when a State Party identifies problems with the execution of a cooperation request by the Court. According to article 97 (c), such a problem may for example arise when the requested State would have “to breach a pre-existing treaty obligation undertaken with respect to another State.” South Africa has been critical of the consultation process concerning the Court’s request to arrest President Al Bashir of Sudan.

Article 98 (Cooperation with respect to waiver of immunity and consent to surrender) reads:

“1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.”

South Africa has cited international law on immunity and treaty obligations under the AU for its failure to arrest and surrender President Al Bashir of Sudan.

For the 14th session of the Assembly of States Parties to the Rome Statute, South Africa pursued a decision by the Assembly “that clear rules and procedures be developed on the application of Article 97 requests by States Parties to the Court for consultations to resolve problems that they may experience which may impede or prevent the execution of cooperation requests by the Court, and that an interpretation be done of the nature and scope of Article 98 and its relationship with Article 27.” (ICC-ASP/14/35 Annex I, I.B.)

A good number of voices were opposed to the addition of the South African agenda item and spoke again of interference with the independence of the Court.  Moreover, the argument was made that the proposal for new consultation procedures should be submitted to the Working Group on Amendments. Initially I was worried that South Africa’s request aimed at an over-wide interpretation of articles 97 and 98 to deprive article 27 of its impact. But to this observer it also made sense to increase understanding about articles 97 and 98 in light of rather widespread lack of k owledge about these provisions. Specifically, more detail about the consultations foreseen in article 97 could be helpful to assess if an obligation to cooperate with the Court has been violated.  To advance insight about both article 27 and article 98, conflicting obligations by States Parties towards the Court and towards other States, notably Non-Parties, could be sorted out more clearly. Towards the end of the session South Africa proposed text for the records that would reflect that States Parties expressed their willingness to consider “within the framework of the appropriate subsidiary body” of the Assembly of States Parties proposals to develop procedures for implementation of the provisions of article 97. On the relationship between articles 27 and 98, the text would convey that “some States Parties raised concerns and it was noted that interested States Parties could refer the matter to the Bureau for further consideration and attention.” I have not yet seen the final official records for the fourteenth session, but it appeared that South Africa was content with a relatively open-ended outcome.

The UIA and other lawyers’ associations can do much to increase information about the legal framework for the International Criminal Court and to support the important intergovernmental role of the Assembly of States Parties in safeguarding the independence of the Court.

For the documentation that was before the 14th session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, see:

https://www.icc-cpi.int/en_menus/asp/sessions/documentation/14th-session/Pages/default.aspx

For the resolutions adopted at the 14th session (on cooperation, permanent premises, article 124, program budget, and ‘omnibus’) see:

https://www.icc-cpi.int/en_menus/asp/resolutions/sessions/Pages/2015%20-%2014th%20session.aspx

Jutta F. Bertram-Nothnagel

Director of the Relations with the UN and the ICC

10 December 2015