Monday, December 29, 2014

AMICC's participation in the 13th session of the ICC’s ASP: Highlights for our Advocacy

From the 8th to the 17thof December, eight AMICC delegates participated in the 13th session of the ICC Assembly of State Parties (ASP) which took place in New York UN Headquarters. AMICC was accredited to attend the session as an NGO along with other international and regional organizations (Council of Europe and Organisation International de la Francophonie) to attend the session. Twelve NGOs and two international organizations made statements during the general debate. AMICC will do a full report on the ASP session in the next week. This blog presents ASP developments most relevant to our advocacy. What stands out from this event is the two interacting but distinct identities of the International Criminal Court. The ICC is in fact a criminal court and an international organization. Its structure, organization and the politics of the ICC reflect the tension between the two identities.

The Budget
This is especially true when it comes to the budget. Other international organizations can eliminate a program of activities if member states cut the budget. Normally, an international organization can do this without damaging its credibility or ability to exist. In the case of the ICC instead, the provisions of the Rome Statute and related documents impose the stringent requirements of a true Court on the ICC. It is very damaging for the credibility and ability of the Court not to take clearly eligible cases for lack of funding. The interest of justice and the rule of law must not be affected by budgetary considerations.

Therefore, although there are certain Rome Statute requirements to keep the ICC a true Court, such as long and expensive provisions, those provisions must not be ignored as they are essential to guarantee due process and the rights of victims and the defense.

During the session, the approval of the proposed programme budget for 2015 was achieved fairly smoothly on the sixth day of the session.  The issue most important to us was whether the budget was sufficient to meet the legal requirements and needs of the Court to fulfill its mandate.

The International Criminal Court’s approved programme budget for 2015 amounts to €130.665.600 million ($ 158.814 million). This represents an increase of € 10.00 million ($12.154 million), over the 2014 approved budget (€121.66 million, $147.869 million). The question remains if the budget approved will eventually be enough to cover the necessary expenses to fulfill the requirements of the Rome Statute.

Elections of the new judges
The election of the new judges was meticulously fair and transparent although very slow. The Advisory Committee on Nomination again gave States Parties objective information on each judge by conducting individual interviews and asking States Parties to submit all relevant information before the session. Those elected were: Mr. Chung Chang-ho from Republic of Korea, Homanski Piotr from Poland), Perrin De Brichambaut Marc Pierre from France and Schmitt from Mindua Antoine  Kesia-Mbe .The difficulty in finding the last judge which resulted from the slow withdrawal of some candidates despite their few votes, resulted from the tendency of States representatives to give priority to the geographical representation of candidates over their qualifications.

The omnibus resolution discussion
The best example of the international organization side of the Court was undoubtedly the discussions on the Omnibus Resolution which took place the last three days of the session. This resolution contains action on most agenda items except from a few, such as on the budget. 

During the session, the discussion on cooperation was focused on the necessity to enforce the Court’s orders and sentences, especially arrest warrants and other Court’s decisions. The SC statement on cooperation is not a resolution and therefore it is not binding the international community.

In this respect, while the ASP was underway the Prosecutor made a statement to the UN Security Council (UNSC) on the situation in Darfur followed by her 13th report pursuant to UNSCR 1593 (2005).

In both statement and report, the Prosecutor explained her decision to suspend her investigation in Darfur to allow her to shift resources to other urgent. She claimed that despite the arrest warrants issued against Omar Al Bashir and other individuals, nothing has been done to enforce those warrants by States Parties and by the SC. The Council President’s statement in 2012 on the need and obligation of UN member states to enforce the ICC’s arrest warrant is not a resolution and thus does not bind them. Therefore, the Prosecutor called for stronger action by the SC. 

In conclusion, the ASP session is a remarkable compromise of diplomatic and political strategies, where the ICC shows its double nature of international organization and criminal court. The problematic questions arising from this tension, makes the ICC unique in its role and mandate to fight impunity and to implement customary international criminal law on national levels. It also creates or emphasizes the aspect of the Court’s work most important for an advocacy.

Written for AMICC by Miriam Morfino