ASP 2017: Loose ends and reflections

C: Coalition for the ICC
Editors
Our final review of ASP 2017 outlines some of the recurring subject-matter of this year's side events and the academic reactions to developments and decisions made at the Assembly.

Main themes of side events at ASP 2017 include explorations of the current ICC situations,  the effectiveness of ICC reactions to gender and sexual based crimes, and developments on international justice. Academic commentary since the adoptions of war crimes amendments and the activation of jurisdiction of the crime of aggression have focused on the effect these will have on Court proceedings in the future, and the applicability of these crimes to both Members States and non-Member States alike. 

 

ASP side events

ICC investigations

The side-event “Situation in Georgia: Progress and Challenges of Investigation” saw a presentation by Mr. Gocha Lordkipanidze, Deputy Minister of Justice of Georgia. The discussions that followed centered on the ICC Prosecutor's October 2015 request to the Judges to authorize her to open an investigation into the situation in Georgia, as well as on the subsequent authorization granted in January 2016. The alleged crimes against humanity and war crimes perpetrated in the context of the 2008 international armed conflict, as well as ongoing public outreach activities for affected communities were also discussed.

The Role of the ICC in Promoting Accountability for Grave Crimes Committed in Ukraine” discussed challenges that come with investigating international crimes allegedly perpetrated by powerful states, such as Russia, a non-ICC member state. An analysis was given on lessons learned from the specific challenges faced in the Georgia situation, as many parallels can be drawn with the situation in the Ukraine.

The Coalition for the ICC co-organized the side event “Burundi in the aftermath of the opening of an ICC investigation”. Panel discussion and presentations focused on the causes of a cycle of impunity in Burundi; how this cycle has contributed to the commission of reported mass human rights violations since the opening of an ICC investigation in 2017; and what can be done to ensure that victims receive justice. The side event also explored the benefits of the ICC as a mechanism delivering justice for victims in Burundi, with the discussions repeatedly raising failures of independence in the domestic judiciary.

Lawyers Without Borders Canada (ASF-Canada) organized with the International Federation for Human Rights (FIDH) a side event titled “5 Years After the 2012 Crisis: Which Improvements in the fight against impunity in Mali?” The event discussed access to justice for victims of international crimes perpetrated in Mali since the start of the armed conflict largely in northern Mali in 2012 and progress made since the crisis, such as the ICC 2016 conviction of Ahmad al-Faqi al-Mahdi for intentional destruction of cultural property as a war crime. Work that still remains was identified, such as for victims of sexual and gender-based crimes; and factors that challenge access to or implementation of international justice in the situation.

Gender justice and sexual and gender-based crimes

On 7 December, the Women’s Initiatives for Gender Justice hosted the global launch of the Gender Justice Legacy Wall, celebrating 151 judges, prosecutors, advocates, victims, witnesses, politicians, diplomats academics, grassroots and international organizations and UN personnel who have contributed to the fight against sexual and gender based violence, and access to justice for victims of these heinous crimes over the past 125 years.

On 13 December, a side event entitled “Prosecuting Sexual and Gender-Based Violence at the Special Court for Sierra Leone” presented conclusions from a UN Women-funded project to gather best practices and lessons learned from the Special Court in its investigations and prosecutions of sexual and gender-based crimes (SGBC). The event was co-sponsored by the Permanent Missions of Sierra Leone and Canada, UN Women, the Canadian Partnership for International Justice and Western University.

The CILRAP-CMN side event titled “Accountability for Sexual and Gender Based Violence Crimes: Central African Republic, Colombia, Democratic Republic of Congo and Iraq” meanwhile reflected on developments in domestic accountability practices for conflict-related sgbc, and their relevance for international criminal justice. During the discussion, national and international experts addressed how accountability for sgbc works, touching on topics ranging from strengthened evidence collection and documentation practices to recent legal and judicial developments that hinder or facilitate prosecution of SGBC.

Another event, “Challenges of the Colombian Peace Process: Guaranteeing victims’ rights under the Special Jurisdiction for Peace”, concerned the peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC), addressing the legal and paralegal structures that could block the fight against impunity – and paying specific attention to the fight on behalf of victims of SGBC.

 

Developments in international justice

On 7 December the International Nuremberg Principles Academy organized a side event on the topic "From Nuremberg to The Hague and Beyond: Critical Reflections on the State of Criminal Justice Today." The event panel critically reflected on current challenges and key developments in the field, specifically touching on how the such developments stand to advance the work of the ICC and strengthen the cooperation its governing body of states provides the Court.

Crimes against humanity 

Another side event on 11 December, “Progress in Drafting a Convention on the Prevention and Punishment of Crimes against Humanitytook place and featured a panel including, among other experts, ASP President-Elect Judge O-Gon Kwon to provide a briefing on the preamble, draft articles and annex adopted by the UN International Law Commission (ILC) in 2017 on the proposed crimes against humanity convention. The discussion revolved around the convention’s potential to close currently existing legal gaps under international criminal law.

War crimes

In Ejil-Talk!, Dapo Akande discusses the relevance of the customary international law status of the three new war crimes adopted by the Assembly of States Parties by consensus into the Rome Statute during their 16th annual session.

Kevin Jon Heller, in a post for the blog Opinio Juris, explores the possibility of the new war crimes amendments being applicable to non-ICC member states, despite the language of the amendment resolution’s preamble appearing to state otherwise.

Amnesty International expressed regret at the failure of ICC member states to agree on criminalization under the Rome Statute of the use of anti-personnel landmines—one of four war crimes amendments originally proposed by the government of Belgium for consideration during the 16th ASP session—in particular on the 20th anniversary of the Ottawa ‘Mine-ban’ Treaty. Amnesty referred to the legal reasoning advanced by several major power ASP delegations in blocking the consensus as “without merit”.

Crime of aggression

In Ejil-Talk!, Dapo Akande outlines how the ASP resolution agreeing to the activation of exercise of jurisdiction over the crime of aggression was negotiated by ICC member states during the 16th session. As Akande highlights, the Court will be able to exercise jurisdiction over the crime 20 years, to the day, after the adoption of the Rome Statute on 17 July 1998—agreed entry into force of the activation is 17 July 2018. According to Akande, the key issue dividing the ICC member states in the lead up to negotiations during the 16th ASP session was whether the Court would be able to exercise jurisdiction with respect to nationals of States Parties to the Rome Statute that have not ratified the Kampala amendments on the crime of aggression and that also do not “opt out” according to those amendments.

Jennifer Trahan, Associate Professor at NYU’s Center for Global Affairs outlines for Judicial Monitor the progression of negotiations up to the agreement at ASP16, recognizing that “it was not through the jurisdictional interpretation of the crime of aggression amendment that many States Parties had favored; yet the decision nonetheless advances the rule of law and completes the ICC’s Rome Statute.” As Professor Trahan further highlights for Opinio Juris with respect to “increasing the jurisdictional reach for purposes of non-Security Council referrals, it is now up to the ICC, civil society and States Parties to press for additional crime of aggression ratifications.”

Ambassador Marja Lehto attended an event by Justice Rapid Response on how to develop international crime investigations into a more professional direction. At the event, when asked about activation of exercise of jurisdiction over the crime of aggression, Ambassador Helto stated that the “preconditions for the resolutions are not ideal, and it’s no secret that they do not fully meet the objectives that Finland had concerning the negotiations. Still, it is significant that the decision was made by consensus”.

Janet Anderson of Justice Hub questions whether the results of the crime of aggression negotiations have created a ‘two tier’ ICC, and to what extent this reflects the current discussions and uncertainties of the ICC system as a whole.

In discussing the significance of the adoption of the crime of aggression activation resolution—given the limitations on exercise of jurisdiction— Alex Whiting suggests that the importance lies in the discussions on the legality of warfare that will arise from the adoption decision.

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