Tuesday, September 16, 2014

AMICC attends constructively the panel discussions with ICC judicial candidates in anticipation of the eighth judicial elections in December 2014
Thursday 11th Sept- Friday 12th Sept 2014
New York, UN Headquarters

Since 2010, the NGO Coalition for the ICC has appointed an independent high expert panel on the ICC’s judicial elections in order to educate and promote ICC’s best qualified nominations with the aim to fulfill and fully accomplish art. 36 par 3 of the R.S.
The Panel is composed of esteemed international law experts, representing legal systems from the five geographical regions recognized at the United Nations as well as both civil law and common law systems, and who have been appointed to renewable three year term, and its main goal is to assess strictly the qualifications that the ICC treaty requires, and look carefully at the nominating documents submitted by governments to determine whether a candidate is either ‘qualified’.

The provision included in art.36 of the Statute, in fact,, requires each candidate to be impartial, qualified, and of moral character and provides, among other things, the ASP with the possibility to establish an Advisory Committee on nomination par.3(c), in order to guarantee that candidates’ backgrounds and experience meet the requirements set in the Statute.
The committee should facilitate the election of the highest qualified individuals as judges of the ICC and the Coalition along with AMICC has been tried to support its work in occasion of the sixth and seventh elections.
Furthermore, the independent panel appointed by the Coalition, has been trying to enhance and promote transparency and accountability of the judicial nominations and elections by launching a campaign ICC/ASP judicial elections whose results have been without any doubts successful.
Statistical data, such as the progressive reductions in the number of nominees, show how the experiences and expertise of States candidates have improved as well as their qualifications and competences, reaffirming principles enshrined in the Rome Statute and in other legal instruments.
One difficult challenge concerning States’ judicial candidacy is represented by the so-called “vote-trading ” practice existing among Member States Parties to the RS.
 States’ political parties and regional groups often put in force a series of political agreements in order to choose judicial candidates.  

By raising the level of expertise and transparency of the candidates, the Coalition and other NGOs aim to oppose to this practice which jeopardizes the transparency and accountability of the candidates.    
The panel as well as the Coalition in fact has tried to involve the public opinion, NGOs and Human rights activists in order to publicize and raise awareness on the elections procedure and candidates. The method used is intended to be transparent and objective and it has been proven to be effective as shown by this last eight election campaign.    
Each nominee is asked to fill out questionnaires that provide additional information about the candidates’ qualifications. The Coalition interviews all candidates, holds public seminars with available candidates and experts, and hosts public debates.
In occasion of the 8th election which will take place in December 2014 at the 13th Assembly of States Parties,(8-17 December 2014), seventeen countries have chosen candidates for the December elections to fill six vacant positions on the Court’s bench.

 According to the Rome statutes, (art. 36 par.6, a) the ASP will elect those judges who obtain the highest number of votes with at least a two-thirds majority of states parties present and voting from a pool of nominated candidates.
Candidates shall have established competence in criminal law and procedure and necessary relevant experience in criminal proceedings (list A candidates) or established competence in relevant areas of international law and extensive practical experience in a professional legal capacity (list B candidates).(art.36 par.3)
States parties must also take into account the representation of the principal legal systems of the world, equitable geographical representation, a fair representation of female and male judges, and judges with legal expertise on specific issues including, but not limited to, violence against children or women.(art.36 par.8 a and b)
According to the Status of nomination for the election of six judges (as at 4 August 2014),

The minimum voting requirements are: 2 for List B, 2 for Eastern-European States, 1 for Asia-Pacific States and 1 for male candidates.
Each nominee replied to a questionnaire prepared by the Coalition taking into account relevant criteria and principles of ICL consistent perfectly with the RS and the ICL legal framework.
A set of twenty questions divided into ten different topics works as a useful and functioning filter to test States’ candidacy.
The questionnaire includes the following questions, reflecting ICC statutory provisions.
1.       Why do you wish to be elected a judge the ICC?
2.       What do you believe are some of the major challenges currently facing the Court? What do you believe
will be some of the major challenges in the coming years?
Nomination process
3.       What are the qualifications required in the State of which you are a national for appointment to the highest
judicial offices? Please explain how you meet these qualifications
4.       Have you provided the statement required by article 36(4)(a) of the Rome Statute and by the nomination
and election procedure adopted by the Assembly of States Parties? If not, please provide an explanation
for this omission.
Legal system
5.       Which legal system does your country belong to? Please describe any knowledge or experience you have
               working in other legal systems.
Language ability
6.       The Rome Statute requires every candidate to have excellent knowledge of and be fluent in English or
               a) What is your native language?
               b) What is your knowledge and fluency in English? If it is not your native language, please give an
                   example of your experience working in English.
               c) What is your knowledge and fluency in French? If it is not your native language, please give an
                   example of your experience working in French?
7.       Your response to this question will depend on whether you were nominated as a List A candidate or a List
               B candidate. Since you may have the competence and experience to qualify for both lists, please feel free
               to answer both parts of this question to give the reader a more complete view of your background and
Other expertise and experience

8.       Please describe the aspects of your career, experience or expertise outside your professional competence
that you consider especially relevant to the work of an ICC judge.
9.       Please provide examples of your legal expertise in other relevant areas such as the crimes over which the
Court has jurisdiction; the management of complex criminal and mass crimes cases; or the disclosure of
Experience (and perspective) related to gender crimes and crimes of sexual violence
10.    Historically, many of the grave abuses suffered by women in situations of armed conflict have been
marginalized or overlooked. Please describe any experience you may have in dealing with crimes of
sexual and/or gender based violence and where you have applied a gender perspective, i.e. inquired into
the ways in which men and women were differently impacted.
Victims related work:
11.    Victims have a recognized right to participate in ICC proceedings and to apply for reparations under Article
75 of the Rome Statute. Please describe any experience that you have, which would be relevant to these
provisions, particularly any experience you may have that would make you particularly sensitive to/have
understanding of the participation of victims in the courtroom.

12.    How would you address the need for a balance between victims’ participation with the rights of the
accused to due process and a fair and impartial trial? Do you have any relevant experience in dealing with
this issue?
Human rights and Humanitarian Law experience
13.    Do you have any experience in working with or within international human rights bodies or courts or have
you served on the staff or board of directors of human rights or international humanitarian law organizations? Please briefly describe.
14.    Have you ever referred to or applied any specific provisions of international human rights or international
humanitarian law treaties within any judicial decision that you may have issued within the context of your
judicial activity or legal experience?
Implementation of the Rome Statute and ICL
15.    During the course of your judicial activity, if any, have you ever applied the provisions of the Rome Statute directly or through the equivalent national legislation that incorporates Rome Statute offences and procedure? Or have you ever referred to or applied the jurisprudence of the ICC, ad hoc or special tribunals? If so please describe the context in which you did.
Other matters
16.    Have you ever resigned from a position as a member of the bar of any country or been disciplined or
censured by any bar association of which you may have been a member? If yes, please describe the
17.    It is expected that a judge shall not, by words or conduct, manifest or appear to condone bias or prejudice,
including, but not limited to, bias or prejudice based upon age, race, creed, color, gender, sexual orientation, religion, national origin, disability, marital status, socioeconomic status, alienage or citizenship status.
a)       Do you disagree or have difficulty with this expectation?
b)       Have you ever been found by a governmental, legal or professional body to have discriminated against or harassed an individual on these grounds. If yes, please describe the circumstances
18.    Article 40 of the Rome Statute requires judges to be independent in the performance of their functions.
Members of the CICC and governments are concerned about the difficulties a judge may experience in
independently interpreting articles of the Rome Statute on which his or her government has expressed an
a)       Do you expect to have any difficulties in your taking a position independent of, and possibly
                             contrary to, your government?
b)       Article 41 requires a judge’s recusal “in any case in which his or her impartiality might be doubted
                             on any ground.” Do you feel you could participate in a judicial decision involving a matter in 
                             which your government has an interest, such as whether an investigation by your government on a 
                             matter of which the ICC was seized was genuine?
19.    The Rome Statute requires that judges elected to the Court be available from the commencement of their terms, to serve a non-renewable nine-year term, and possibly to remain in office to complete any trials or appeals. A judge is expected to handle legal matters for at least seven hours per day, five days per week.
a)       Do you expect to be able to serve at the commencement and for the duration of your term, if elected?
b)       Do you expect to be able to perform the judicial tasks described above on your own or with reasonable accommodation? If no, please describe the circumstances.
20.    If there are any other points/issues you wish to bring to the attention of the Coalition in this questionnaire, please feel free to address them here.
The structure and content of this questionnaire are relevant not only to the Coalition work but also to the AMICC advocacy campaign.
 Furthermore, during the Panel discussions with some of the ICC judicial candidates on the 11th and 12th Sept 2014 at UN Headquarters, William R. Pace, Convenor of the Coalition, asked the candidates to start with a general introduction about personal background and experience.
Later, He submitted them with the following questions   

1.       What do you believe are some of the major challenges currently facing the Court?
2.       If you were elected ICC judge, which division would you like to work?

To the first question, most of the candidates answered by enumerating issue related to the cooperation of States Parties with the Court, the length of the trials and the lack of publicity among the public opinion. (Hungarian candidate)
To the second question, almost all of them replied not to have any preference regarding the Chamber, as they are willing to accept to work in any Division.
However, some of them would prefer the Trial Division (French candidate).
The audience invited to attend the two days panel discussions included member of Human rights NGOs, advocacy groups, representatives of States regional groups, UN Security Council representative, and others groups.
They had time to ask questions directly to the ICC candidates.
The most debated questions regarded:

1.       The Independence of ICC judges from political pressures.
2.       Individual and collective victims participation
3.       Effectiveness and efficiency of ICC trials
4.       Rights of the accused
5.       Relations with the Security Council

Each candidate gave a wide range of answers according to their personal domestic and international experience.
In his final remarks, Mr. Pace stated that the discussion have been beneficial to the audience and public opinion, underlying however some missing points which were not addressed.

They are namely:

1.       Legal representation
2.       Witness protection
3.       Arrest warrant
4.       Cooperation with Non-States Parties

Since 2011, AMICC has been participating enthusiastically to these discussions as a sign of American involvement into the ICC ‘s fight against impunity.
It also considers the participation to this meeting fundamental and important for its advocacy campaign to stimulate and increase American public opinion’s awareness of the ICC.
As a result, the US, although still a Non-State Party, is also interested in a fairer and more transparent election procedure, and therefore will continue to support the Coalition and the Independent panel in reaching their goals.
It is not without importance that one of the Independent panel members, The Honourable Patricia Wald (Vice-Chair), was Chief Judge of the United States Court of Appeals for the District of Columbia, a clear sign of the American cooperation with the Court.

     Written for AMICC by Miriam Morfino on the 15th of September 2014

Tuesday, September 09, 2014

ISIS atrocities as crimes against humanity at the ICC

ISIS atrocities as crimes against humanity at the ICC  

In the last few weeks, media and news have emphasized the cruel and aggressive offensive launched by the Islamic State of Iraq and Al-sham (the Levant) in Syria and Iraq and including the beheading of the two American journalists reporting from Syria.(James Foley, http://abcnews.go.com/Blotter/james-foley-video-appears-show-beheading-journalist-missing/story?id=25043593 and Steven Sotloff  http://www.theguardian.com/world/2014/sep/02/isis-video-steven-sotloff-beheading )

The Islamic State of Iraq and Al-sham (the Levant)
The shocking and brutal massacre which is taking place in this region is only a partial and superficial part of a more rooted and radicalized strategy that this ultra-extremist terrorist group has been carrying out and the United States and the ICC need to prosecute these acts as “most serious crimes of international concern”. (Art.1 of the Rome Statute)

United States national security strategy
The multilateral strategy that President Obama will announce in his national security plan on Wednesday, will be less powerful if it is not supported by the international prosecution of individuals that only the Court can carry out. It could do this much more effectively if the US joined the ICC.

Isis terrorist conduct as a crime against humanity

The inclusion of terrorism within the jurisdiction of the Court is a highly debated topic addressed by various scholars, commentators and analysts and the literature on this topic is overflowing.
However, there is a broader consensus on the inclusion of terrorism as a crime against humanity rather than a war crime or crime of genocide.

In fact, war crimes as defined in art.8 of the Rome Statute require the existence of an armed conflict and therefore, every serious act of terrorism should reach this threshold to be included in the list.
However, others have noticed that two of the war crimes defined in Art.8, par.2, e (i), namely
Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities and art.8, par.2, c (iii) taking of hostages can be easily accounted as acts of terrorism as they cover materially the same unlawful conduct.

Nevertheless, this category excludes all acts of terrorism committed in peacetime and thus, crimes against humanity seem a more appropriate class for this international crime if the terrorist act has been committed in a widespread or systematic way and pursuant to a State or organizational policy. (art. 7)

For instance, an act of terrorism whose gravity, scale and magnitude resembles the 9/11 massacre could be considered as a crime against humanity only if it was not isolated and the organization which planned it was expert enough to build such a sophisticated strategy.
On crimes against humanity, in deciding to authorize an investigation in Kenya, the Pre Trial Chamber addressed the concept of “policy”. It clarified that the perpetrator of a crime against humanity must have “ the capability to perform acts which infringe on basic human values” specifying, among other issues, the relevance of other elements such as hierarchy, the control of territory, financial support.
Accordingly, the ISIS atrocities since the beginning of June could be easily considered as a crime against humanity for the purpose of the Statute as it satisfies both the systematic attack requirement and the level of expertise and organization.
The number of casualties the ISIS caused between 2013 and 2014 and its brutal tactics - including mass killings and abductions of members of religious and ethnic minorities, as well as the beheadings of soldiers and journalists in Syria and in Iraq, meets the systematic attack requirement. Also the geographical distribution of territory it controls, (between 15,000 and 35,000 sq miles) shows the depth and extent of its organization.
In terms of financial and military resources, the Islamic State is reported to have $2bn (£1.2bn) in cash and assets, and between 30,000 and 50,000 fighters. (http://www.bbc.com/news/world-middle-east-29052144)

Positive impact of the ICC prosecution of Isis militants on the US’s home-ground counterterrorism policy if the United States ratifies the Rome Statute

The nature and complex definition of the crimes the ISIS is responsible for and its international implications and ramifications, show how much more effective a single international prosecution of this crime would be, when criminal domestic jurisdictions fail to do so or are not so effective to provide an acceptable level of national security.
This is true not only for issues such as the rights of the accused, the fairness of the trial and the detention conditions, but also the victims’ and witnesses’ protection which are appropriately guaranteed at the ICC.
When considering the risk of political manipulations and pressures, the ICC is an impartial and neutral arbiter and should avoid any political motivated prosecutions.

In addition to that, the intervention of the ICC would benefit the American national interest in the case of suicide attacks as Art. 25 of the Rome Statute suggests. The responsibility of the terrorist act is shared between the perpetrator who cannot stand trial and his accomplices. The cooperative and constructive relationship between the United States government and the ICC should support a first step to fight the Isis threat; it could also be a way to show to Americans the value of the ICC thus building support for eventual America ratification of the Court Rome Statute.

Written for AMICC by Miriam Morfino on Sept/09/ 2014.