CASIN Delegate with Prosecutor Fatou Bensouda of the International Criminal Court in The Hague
A delegation of five students and young professionals representing the Council of American Students in International Negotiations (“CASIN”) attended the eleventh session of the Assembly of States Parties to the International Criminal Court (“ICC”), at the World Forum in the Hague, the Netherlands, from the 14th to the 22nd of November, 2012. The session, coinciding with the 10th Anniversary of the entry into force of the Rome Statute, provided a forum both for reflection on the achievements and lessons of the Court over the past decade, and for cognizance and discussion of issues affecting the ICC’s maturing role as the independent body prosecuting crimes of gravest concern to the international community in complementarity with states.
The CASIN delegation participated under the umbrella of AMICC, the American Non-Governmental Organizations Coalition for the ICC, the U.S. national network of the CICC, or Coalition to the International Criminal Court, a global coalition comprised of 2,500 civil society organizations (“CSOs”) in 150 different countries working in partnership to strengthen international cooperation with the ICC. Delegations from approximately 90 of the 121 states parties attended the Assembly, as well as numerous observer states and CICC members.
The Assembly was marked by numerous noteworthy events. A new Deputy Prosecutor, James Stewart of Canada, was elected for a nine year term. Although the contested election required five rounds of voting, an objective examination showed Mr. Stewart’s particular merit, being the only bilingual candidate and the only candidate with extensive international criminal legal experience. Election of five member the Board of Directors of the Trust Fund for Victims and the nine member Advisory Committee on Nominations proceeded by consensus.
The Assembly also adopted a new Rule of Procedure and Evidence, Rule 132bis, allowing consolidation of pre-trial work under a single judge. The measure, with great potential to improve efficiency at the pre-trial state, was a positive example of using feedback of the court itself to enhance function. The notion was proposed by the Judicial Chambers to the Working Group on Amendments, who codified it in Rule 132bis. The insertion marked the second time that amendments to the Rules of Procedure and Evidence provided a means of altering court procedures without amending the Rome Statute itself, a complex process which would require ratification of any changes by the individual states parties.
Conflicts over passage of the 2013 Budget Resolution were anticipated to occupy large portions of the Plenary Sessions, but were avoided, thanks to behind the scenes efforts by Ambassador Hakan Emsgard of Sweden, and interventions by key states. The 2013 Budget allocation of 115.1 million Euros adopted the recommendations of the Committee on Budget and Finance. The question of who would be responsible for rent costs of the court’s current interim premises, an expense of approximately 6 million Euros annually, resulted in a compromise, with the Court absorbing half the costs and Netherlands and Mexico stepping forward to cover the balance. The budget continues to take a central role in ASP Plenary Sessions; as emphasized by Amnesty International both in their general debate intervention and their published recommendations, the prospect of a “zero growth” budget or selective defending may be the greatest single threat “undermining the Court’s work, including the ability of an independent Prosecutor to respond to impunity in all situations under the Court’s jurisdiction.”
In an unprecedented step, portions of the Plenary Sessions were specifically allocated to the topics of complementarity and state cooperation with the ICC, reflecting growing recognition of the centrality of these issues to the future efficacy of the Court. A plenary session specifically dedicated to complementarity marked a high note, reflecting the highly reiterated tenet that the primary responsibility in prosecuting grave crimes under the Rome Statute is with the states, with ICC involvement only if states are themselves unwilling or unable to act. The session came at a time where efforts towards complementarity by members took on a new urgency, with the increasing occurrence of grave acts potentially within the jurisdiction of the court. The keynote address by Ms. Helen Clark, Administrator of the United Nations Development Programme (“UNDP”), noted the great potential for UNDP Rule of Law and Governance programs already aimed at judicial capacity building to focus on specific capacity to prosecute atrocity crimes. National submissions underscored both the primacy of national prosecutions and the need to strengthen and enable such mechanisms through enactment of national legislation. The focus resulted in adoption, at the end of the assembly, of the first ever ASP resolution on complementarity.
State Cooperation was the second new stand-alone Plenary subject of discussion. This achievement was highly significant since the ICC, unlike national courts, has no direct powers of enforcement outside of very limited circumstances and relies upon states parties to conduct investigations, arrest suspects, protect witnesses, or compel witnesses to attend trial. The keynote speaker, ICTY Prosecutor Serge Brammertz, discussed both challenges and successes in cooperation leading to arrest of 100% of the 161 persons indicted by the ICTY. Interventions by states acknowledged the necessity of cooperation in enabling the Court to effectively function, and urged the importance of follow-through and political will in effecting compliance.
This year was the first year that dedicated Cooperation and Complementarity discussions were scheduled within the Plenary Session. During the Court’s first decade, discussion of substantive issues during the Plenary was largely limited to debate over the content of the Omnibus Resolution, with side resolutions such as the 2011 resolution on Cooperation adopted by consensus. Further consideration of issues was reserved for Working Groups, side events hosted by civil society organizations, and informal discussion. The effect of this was twofold: First, substantive issues of potentially great import to the Court’s success were sidelined from main discussions, creating perhaps unintended de-emphasis. Secondly, the non-formal setting for substantive discussion of these issues, whether through informal talks or meetings scheduled in tiny rooms at times often conflicting with the Plenary itself or other side-events, was not conducive to a forum in which all state party participants and interested CSOs could thoroughly discuss subject matter. As the Court enters its second decade, attention the Assembly must naturally extend beyond the preliminary issues characterizing the establishment of the Court to long-term challenges to Court efficacy and function implicating judicial, technical, diplomatic, and political assistance on a national and civil society level. In light of current realities, Complementarity and Cooperation are likely to remain on the Plenary Agenda in the foreseeable future.
Additionally of note were numerous side-events coordinated by the CICC involving regional governments and civil society organizations. Regional meetings, such as the 11/17 CICC Regional Meeting with Middle East and North African Governments, bringing together government representatives of the MENA region, and the 11/17 MENA Regional Strategy Meeting, open to all with an interest in or working in the region, provided intensely valuable forums for regional players to discuss concerns and issues specific to the region. The CICC MENA Government meeting, for example, allowed a forum for regional information such as status reports on ratification and implementation by MENA nations, and for discussion of issues of concern such as non-referral of Syria, the question of Palestinian non-membership to the ICC, and the compatibility of the Rome Statute with Sharia. At the MENA Regional Strategy Meeting, regional CSOs spoke to successes and challenges in addressing issues pertinent to the court in the MENA region, such as capacity building and rule of law initiatives, the need to refer the Syria situation to the ICC, the strong desire of certain Libyan NGOs to see Libya build the capacity to try Libyan indictees in Libya under the complementarity principle.
The Assembly concluded with the passage, by consensus, of eight resolutions: The Omnibus Resolution, the Budget Resolution, Amendment of the Rules of Procedure and Evidence, the Permanent Premises, the Independent Oversight Mechanism, Cooperation, Complementarity, Victims and Reparations, as well as one Recommendation concerning election of the Registrar of the International Criminal Court. The 12th Assembly of States Parties to the ICC will occur on November 20-28, 2013, at the Hague, Netherlands.