ASP 15 Day Six - Can the ICC act on climate justice?

On the sixth day of the annual Assembly of States Parties, informal consultations on the budget and the omnibus resolution continued, and several side events were held on climate justice, evidence in ICC trials, national prosecutions of ICC crimes, the future of the ICC, protection of human rights defenders, and lessons learned from the ICC investigation in Kenya.

Throughout the Assembly we bring you daily summaries the plenary sessions, side events, and other key developments, as well as related news coverage, documents, and websites.

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See our curated Twitter collection for highlights from ASP Day 6

PLENARY SESSION

Morning session
This morning at the 15th ASP session, a pledging ceremony took place in relation to the Agreement on the Privileges and Immunities of the ICC (APIC), an international treaty open to ratification by all UN member states and providing the ICC with the access and cooperation it needs from governments. The APIC is a crucial tool for the Court's functions to be carried out independently, effectively, and safely while minimizing the need for related ad hoc bilateral agreements states and the Court. Universal ratification of the APIC - now at 75 ratifications, including Ukraine as the only non-ICC member state - has been a long-time focus of the Coalition's Campaign for Global Justice.

During the pledging ceremony, an initiative by Belgium, three states - Australia, El Salvador, and Peru - pledged to ratify the APIC by 2018, with Australia and Peru pledging to do so before 1 July, the 20th anniversary of the Rome Statute. The ICC Registrar Herman von Hebel notified the ASP of the most recent accession to the APIC by Samoa while the Belgian ambassador highlighted the low number of ratifications within the Asia-Pacific and Africa regions, calling for enhanced efforts around ratification there.

Earlier in the morning, the plenary heard reports by the Oversight Committee on the Permanent Premises of the ICC and the Chair of the Working Group on Amendments (WGA). The latter concerned the ongoing discussions around amendments to the ICC Rules of Procedure and Evidence to manage judicial workload: Kenya asked that the Court refrain from applying the rule, provisionally amended by ICC judges in early 2016, until the Working Group on Amendments completes its consideration; Belgium argued that the Rome Statute leaves it to the judges to decide whether to apply the amendment in the meantime.

Afternoon session
The plenary session this afternoon continued with a discussion on performance indicators for the ICC. 

At the plenary discussion this afternoon the President of the Court Fernandez presented the Second Report on Performance Indicators (PIs) of the ICC and participants discussed the challenges involved. PIs can help assess the extent to which the Court is fulfilling its objectives, but their development is hindered by several factors. As a unique international institution, the ICC cannot rely on existing performance indicator models developed at the national or even international level. Secondly, external factors over which the Court has no control can impact court proceedings, such as states cooperation and limited financial resources.  

The participants then discussed the developed criteria for performance indicators, which are seen as a work in progress, but are nevertheless proven to be useful and reliable in assessing the performance of the Tribunal. James Goldston, executive director of the Open Society Justice Initiative then provided an extensive and detailed outline as to how such performance indicators can best be developed for an institution with unique characteristics such as the ICC.

The EU, U.K., Chile, Bolivia and Mexico all supported the Second Report. Bolivia suggested that the responsibilities of collecting data is assigned to the ICC Registry or ASP Secretariat rather than the judges. Highlighting that PIs are useful in terms of managerial, budgetary decisions, however judges have a job that cannot be quantified. The UK and HRW support changes that will occur after trial and error of different performance indicators. Chile suggested that if qualitative data is too hard to conduct, quantitative date is limited, but useful. The UK mentioned that external factors are hard to quantify/qualify, but are important nonetheless. ICC President Fernandez acknowledged this difficulty, highlighted that external factors are essential to address, and suggested to collect more data in the future in order to understand what is needed for a holistic picture.  All suggest that PIs on the gender and geographical on recruitment be developed, encouraging employment of staff from state parties that are underrepresented at the Court. 

SIDE EVENTS

The ICC in Kenya: Lessons learnt, loose ends and legacy
Speakers:

• Christian Mahr - Director of External Relations, Registry
• Fergal Gaynor - Common Legal representative of victims in the Kenyatta case
• Gladwell Otieno - Executive Director for African Centre for Open Governance
• James Stewart - Deputy Prosecutor at the ICC
• Elizabeth Evenson - Associate Director, International Criminal Justice Program, Human Rights Watch 

This event focused on the lessons learned from the collapse of the ICC Kenya cases, the continuing need for justice for victims disillusioned with national and ICC judicial processes, and how the Court can work more effectively in the future. Central to the discussion was the necessity for improved investigative strategies, evidence gathering, understanding the national political landscapes, the cooperation of governments and the need for stronger engagement and communication from the Court with victims and affected communities.

Host: Kenyans for Peace, Truth, and Justice

Victims' rights and complementarity: paving the way towards transition in Colombia, Uganda, and the Central African Republic
Speakers:

• Philippe Tremblay – Lawyers Without Borders Canada, Senior legal advisor (moderator)
• Nader Diab – REDRESS
• Mathias Moruba – Legal counsel to ICC, president of the Central African human rights centre OCDH (Observatoire Conogalise des Driots de l’Homme)
• Lino Owor Ogora – Founder of the Foundation for Justice and Development Initiatives (FJDI)
• Simon Crabb – Head of office Lawyers Without Broders Canada

This event discussed victims’ participation and national prosecutions of ICC crimes (complementarity), and specifically the challenge of ensuring effective victims' participation from the beginning to end of ICC proceedings and in national systems. Panelists discussed ICC situations in Uganda, the Central African Republic, and Colombia to highlight a number of topics, including the nature of victims' participation; integration into domestic law; international law on victim and witness protection; complementarity; delays in the delivery of justice; the need for financial resources; and the role of civil society. Panelists agreed that the international community, including ICC stakeholders, must continue to support these processes as well as supporting civil society organisations in situation countries, stressing that victims' participation is integral to ensuring clarity in complementarity processes. 

Hosts: Avocats sans Frontières Canada, Advocats sans frontières, REDRESS and Canada

NGO meeting with the head of the Independent Oversight Mechanism, Mr. Ian Fuller
Speaker:
Ian Fuller - Head of the Independ Oversight Mechanism (IOM)

Topics discussed in this meeting included the IOM's role in insuring the ethical and professional standards at the Court, challenges with respect to ICC judicial and prosecutorial independence, the role for NGOs in assisting the office as well as in evaluating the impact of the Court's practices and decisions. The IOM will become fully operational in 2017.

NGO meeting with Mechanism for International Criminal Tribunals (MICT)
Speaker:
Gabriella McIntyre 

This event offered insights into efficiency exercises at the UN tribunals' residual mechanism, the Mechanism for International Criminal Tribunals (MICT). Topics discussed included the UN Security Council's focus on making MICT proceedings 'leaner' that have led to novel initiatives involving judges' working methods, staffing, and rules of procedure; challenges and consequences arising from these initiatives, including in relation to MICT's remote judging model; harmonization of practices among different jurisdictions in which MICT operates; a certain lack of clarity in MICT's mandate by the UNSC; and the impact of such initiatives on judicial independence; concerns about ensuring fair trials, the MICT's fugitive tracking system, and cooperation by states. 

Climate justice
Speakers:

• Polly Higgins – Barrister and International Ecocide Lawyer
• Arnold Kiel Loughman – Attorney General, Vanuatu 
• Kirsten Meerchaert, Hague Head of Office, Coalition for the ICC

During this side event, panelists highlighted the challenges faced by Pacific Island states stemming from climate change and environmental destruction, noting that natural disasters have increased over the last years and are a costly and existential threat to these states. Panelists appealed to the ICC to increase its involvement on this matter, proposing Ecocide be introduced to the Rome Statute as an ICC crime in order to hold individuals criminally accountable for environmental and climate related crimes. A proposed draft law includes provisions for prosecuting man-made environmental destruction as well as an obligation to provide assistance to those most affected by climate change and related natural disasters. Questions touched on the level of support for the initiative, the possibility of creating a special court for environmental crimes, challenges in measuring the gravity of pollution and global climate change, and accommodating the notion of collective responsibility into the structure of international criminal law.

Hosts: Institute for Environmental Security, Vanuatu

Protecting human rights defenders: what can states parties do?

• Shawan Jabarin – Al Haq Representative
• William Pace – Convenor of the Coalition for the ICC
• Gladwell Otieno – Executive Director for African Centre for Open Governance

This side event focused on human rights defenders and the risks they face from states opposing their work. Panelists discussed increased pressures on space for civil society to operate freely, increased government surveillance and physical attacks, the drying up of funds for NGOs, and the global pattern against regional and international solidarity for human rights defenders. Panelists also shared personal accounts of cyber-attacks, unfounded accusations, physical threats, and death threats. Participants expressed their concern about the shrinking civil society space afforded to them and asked how they can contribute to addressing this concern. Other questions related to the transnational effect of protecting human rights defenders, concrete action that can be taken, and the different forms of pressure human rights defenders are under.

Host: Institute for Security Studies

Evidence in international criminal trials: developments and challenges

• Wendy Betts - Director, eyeWitness to Atrocities
• Judge Chile Eboe-Osuji - Trial Division, ICC
• Michelle Jarvis - Deputy to the Prosecutor, ICTY
• Geoff Roberts - Defense Counsel, Special Tribunal for Lebanon

This panel discussion took as its starting point the IBA's latest report in its International Criminal Law Perspectives series ‘Evidence Matters in ICC Trials.’ The panelists looked at how emerging digital evidence and technology can provide information relevant to ICC proceedings, as well as some of the limitations of using such evidence in an international criminal tribunal. The panelists drew together their diverse experiences as prosecutors, defense counsel, judges, and members of civil society in the field of international justice, with the discussion touching on the 'pyramid approach' to investigation and evidence at the International Criminal Trbunal for the former Yugoslavia (ICTY); the ICTY's witness-centered approach in collecting evidence from witnesses of sexual and gender-based crimes; the use of technology such as smartphones, internet, and drones; the Special Tribunal for Lebanon's use of three types of evidence; and innovation's impact on judicialindependence. A debate followed on the balance between efficiency and fair trial and concluded with a look at the way forward.

Hosts: Switzerland and the International Bar Association

Book Presentation: "The International Criminal Court and Africa: One Decade On"

• Evelyn Ankumah – Executive Director Africa Legal Aid
• H.E Judge Baroness Christine van den Wyngaert – International Criminal Court
• H.E Dr. Tony Aidoo – Ghana Ambassador to Netherlands,
• H.E Roman Buzek – Ambassador of Slovak Republic to Netherlands

During this side event organized by Ghana, the Netherlands, and Africa Legal Aid (AFLA), AFLA presented the new book ‘The International Criminal Court and Africa: One Decade On,’ edited by its Executive Director Evelyn Ankumah. The book contains 25 topics from expert authors on universal jurisdiction, impunity for sexual and gender based crimes, state cooperation, head-of-state immunity, and complementarity among others. Panelists highlighted that the book aims to evaluate events which have both fractured and strengthened the relationship between the Africa and the ICC. The book provides the progress being made by the ICC, and discusses its journey from a novel concept to a working Court holding perpetrators to account through core principles, statutes, and cooperation. Although the prevalence of ICC situations in Africa has been met with criticism, the book stays away from political commentary, manifesto, or agenda and instead aims to contribute to meaningful, rational discussions on the development and role of international criminal justice in Africa.

Hosts: Ghana, the Netherlands, Africa Legal Aid

Grave crimes and grand corruption
Speakers:

• Yuriy Lutsenko – Prosecutor General of Ukraine
• Mariclaire Acosta – Director of Freedom House Mexico, former Deputy Secretary for Human Rights and Democracy in Mexico’s Ministry of Foreign Affairs
• Mohamed Bangura – Office of the Prosecutor Residual Mechanism for the Special Court for Sierra Leone
• Juan Francisco Soto – Director, Centro para la Accion Legal en Derechos Humanos (CALDH)

During today's event on the links between grave international crimes and grand corruption and its cyclical effect in perpetuating injustice, a representative from the Special Court for Sierra Leone, the Prosecutor General of Ukraine, and representatives from Mexican and Guatemalan human rights and democracy groups presented their in-country experiences. Panelists illustrated that civilian populations are those are most adversely affected by grand corruption while highlighting the importance of international cooperation to uncover chains of corruption and criminal networks in order to fight impunity. The positive experiences of Guatemala and Sierra Leone in particular regarding international involvement and cooperation to uncover these activities and their perpetrators were showcased.
Hosts: Sierra Leone and Open Society Justice Initiative 

The future of the ICC: Facing the challenges and strengthening its legitimacy
Speakers:

• Adewale E. Iyanda – African Union Representative
• Marieke de Hoon – PILPG, Vrije Universiteit Amsterdam
• Alpha Sesay – Open Society Justice Initiative
• Mark Kersten – University of Toronto
• Hans Bevers – Office of the Prosecutor ICC
• Marieke Wierda – Rule of Law Policy Coordinator, Ministry of Foreign Affairs of the Netherlands

This side event brought together experts to analyze and critically engage on what underlies recent withdrawals of three African states and the reluctance of other states to join the ICC. It discussed the challenges in meeting the needs of victims, and whether these victims had lost confidence in the Court. Panelists discussed the fact that international criminal trials cannot meet all the needs for justice, such as establishing a historical truth or building livelihood. The panel also analyzed the relationship between peace and justice, and how definitions of justice are interpreted differently, making it difficult to acquire.  Speakers reflected on the need for better dialogue and investment in aspects of the Court's work that stakeholders can agree upon. With regards to the recent proposed withdrawals from three African states, speakers addressed the need that while critiques of the ICC for targeting Africa may not necessarily be a reality, they are indeed a perception, and that perceptions carry weight and must be addressed.

Hosts: the Netherlands and Public International Law & Policy Group (PILPG)

Launch of the handbook on complementarity and a subsequent panel discussion on complementarity
Speakers:

• Swedish Ambassador Per Holmström, Botswana ambassador (moderators)
• Silvia Fernandez de Gurmendi – ICC President and Judge
• Paul Seils - Vice-President International Center for Transitional Justice
• Rod Rastan, Senior Legal Advisor, ICC-OTP

This side event marked the launch of the 'Handbook on Complementarity,' a book intended to explain the principle of complementarity to broader audiences. The ICC President, Judge Silvia Fernandez de Gurmendi, outlined three reasons why she was pleased with the book: it highlights the importance of going back to the basics of the Court's mission; it's easy to read and explains both the theory and practice of the issue of complementarity; and it addresses the issue of national capacity-building and the extent of the Court's role in this regard. Panelists then discussed the issue of complementarity more broadly, including the possibility of a paradigm shift within the Rome Statute system and the role of complementarity in that; contested forms of jurisdiction; and the role of hybrid tribunals in applying Rome Statute norms on a domestic level. Questions focused on the Court's role in ensuring fair trials in national proceedings, responsibility for promoting complementarity, and the use of national proceedings in the case of high-ranking figures accused of alleged grave crimes.

Hosts: Botswana, Sweden, International Center for Transitional Justice

The Heart of Nuba: screening and reception for new documentary film on Sudan
Host: International Justice Project 

See our curated Twitter collection for highlights from ASP Day 6

STATEMENTS

Sending the Right Message to the ICC - Kip Hale, International Atrocity Crimes Lawyer & Expert
"In short, the message is that the ICC is not 'about targeting ten or fifteen suspects,' as ICC spokesperson Fadi El Abdallah said, '[i]t is about protecting ten or fifteen thousand victims.' The message must align the Court with and for victims, not the Court against senior leaders."

Argentina and International Criminal Court sign an agreement on Witnesses’ protection
On 21 November 2016, at the seat of the ICC, the Ambassador of the Argentine Republic to the Kingdom of The Netherlands, and the ICC Registrar signed a cooperation agreement related to witnesses' protection in the presence of the ICC President, and the Under Secretary for Criminal Policy of the Ministry of Justice of Argentina. 

ICC African protest continues but does not spread
At the opening of the International Criminal Court’s 15th Assembly of States Parties on November 16, protest against the Court by some African countries continued but did not, for the moment, spread. The three withdrawal announcements are being used by others as a warning to the ICC.

TOMORROW AT THE ASP

The ASP will continue tomorrow with plenary sessions on the budget and the omnibus resolution, and a number of side events, including: 

• Redress for Kenyans after the ICC: Perspectives and possibilities (co-hosted FIDH, Kenyan Human Rights Commission and Impunity Watch)
• L’affaire Al Mahdi: et maintenant? Les enjeux de la lutte contre l’impunite au Mali (hosted by Lawyers without Borders Canada, Fédération international des droits de l’Homme (FIDH), Association malienne des droits de l’Homme (AMDH) and Avocats sans frontières Mali
• Witness Interference (co-hosted by the Republic of Korea and Open Society Justice Initiative)
• An Introduction to the ICC Bar Association: The new voice for the legal profession (co-hosted by France, the Netherlands, Senegal and the UK)
• Book launch and discussion: “Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals (co-hosted by Germany and International Nuremberg Principles Academy)
• Truth? What truth? Journalists from Africa, Asia and Middle-East talking about the ethics of journalism and truth of reporting – Registration required (register@haguetalks.com).

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