Friday, November 29, 2013

ASP12: A Delicate Balance

ASP12 ended with a feeling of relief, as a number of potential crises were averted, at least in the short-run.  The situation with Kenya and its support by the African Union was the main event, but there was also a possibility that consensus around the budget would disintegrate.  In the end, the feared crises did not materialize, though the underlying issues were not entirely resolved. A major positive achievement of ASP 12 was that the Assembly took the Court forward by operationalizing the Independent Oversight Mechanism, after five years of difficult negotiations. 

In its second week, ASP12 set about preventing a political rupture among its membership. For some time the African states have indicated they feel unfairly targeted by the ICC.  This displeasure came to a head at an extraordinary summit of the African Union called by Kenya in October over the ongoing prosecutions of the Kenyan President and Vice-President.  Rumors spread of a mass pullout of African states from the ICC.   Though the mass pullout did not happen, a group of African states subsequently made an Article 16 request to the Security Council asking that the trials be deferred for one year.  When that request was denied, African states came to ASP12 seeking a change in the rules of procedure making it possible for trials to proceed without the physical presence of the defendants.

The Working Group on Amendments thus became the locus of the Africa-ICC confrontation and much of the second week was devoted to intense negotiation over changes to RPE 134, with one side pressing for more latitude and flexibility and the other emphasizing the absolute language of Article 63.  Kenyon civil society also had a strong presence at ASP12, and side-events reminded of the violence that originally elicited the indictments.  In the end, Kenya abandoned its quest for an automatic excusal from presence at trial for sitting heads of state, and the other side accommodated by approving use of video technology and excusal from presence for “exceptional circumstances” or fulfillment of “extraordinary public duties at the highest national level.”  Least satisfied with the outcome may be the Court itself, since all of the RPE 134 changes were left to its discretion.  Nonetheless, African states welcomed the changes, and the overall feeling was that the integrity of the Rome Statute was not compromised - an issue of great concern to delegates and NGOs alike.

Other rule changes were adopted: to RPE 100 (allowing for the Court to sit in a State other than the host state) and to RPE 68 (allowing for the use of prior recorded testimony). 

The budget had threatened to become another source of division.  Canada, which wanted zero growth changes to the proposed 2014 Budget, had objected to the recommendation of the Committee on Budget and Finance of 121,656,200 euros.  Though lower than what the Court requested, this figure had been seen as an acceptable compromise.  In the end, Canada withdrew its objection, while promising to monitor financial reports with a goal of reaching zero nominal growth in 2015.  This may collide in the future with the Prosecutor’s new strategy, announced early at ASP12.

The Court, Registry, OTP and other organs of the Court indicated that they are streamlining their operations. The new Registrar, Herman van Hebel, is making necessary and positive changes in the running of the Registry. However, the demands on the Court continue to grow and financial increases are essential for it to fulfill its mandate: to meet the demands of current cases and start new cases; to provide more witness protection; to address victim representation and reparation issues; to do more investigations and outreach, inter alia.

Victim support and complementarity were two other issues that were much discussed but, in terms of concrete steps, left for the future.   A new gender strategy will be announced early in 2014.  

The operationalization of the Independent Oversight Mechanism culminated a difficult five-year process and is the signal most important achievement of ASP12.  This important development will aid us immensely in our US advocacy.

Civil society organizations were very active at this ASP, putting on side-events, evening receptions, and multimedia art exhibitions.  Topics included complementarity, Libya, Syria and accountability, victims and victims’ rights, the Kenyan situation, witness protection, and more.  The Women's Initiative for Gender Justice released a report on prosecuting gender violence crimes at the ICC and sponsored a panel on modes of liability, with representatives from the ICTY, and the Special Court for Sierra Leone, among others. The Coalition members met daily; over 200 of the 2500 CICC members were present at this ASP.

A new judge was elected – Geoffrey Henderson of Trinidad and Tobago. The next ASP will take place in New York City from December 8-17, 2014, where election of six new judges will take place to fill seats left vacant by judges whose current terms are expiring.  At the close of the session, Belgium announced that it had ratified both of the amendments adopted at Kampala, on the crime of aggression and on Article 8. 

In sum, at ASP12 the states parties undertook serious examination of the problems that will need to be overcome for the Court to establish itself as an international organization.  Whether the tenuous solutions achieved at ASP12 will resolve those problems in the long-term remains uncertain. 

Monday, November 25, 2013

ASP12 First Week

The prevailing theme of ASP 12 at the end of its first week was that the ICC is at a major moment ("turning point," "mile stone") for its future. This featured prominently in most formal  speeches and debates. It was an important aspect of the ASP meetings devoted to the agenda items of victims, enforcement and of the procedure in prosecuting heads of state or government requested by Kenya and the African Union.( It was also prominent in the side events and conversations on Syria, a subject not on the formal agenda).
Unlike earlier sessions, which were conducted largely as generalized debates, this session was organized around thematically-distinct meetings devoted to separate agenda items.   This was intended to make discussions more productive and did in fact do so.   This organizational structure also presented the ICC's time of fundamental transition from many angles and within various ranges of information on different subjects.
A number of factors contributed to the sense that the Court is at a turning point:  the Kenya/AU challenge; the constant and demoralizing problem of failure to enforce arrest warrant (the session's euphemism for this is "cooperation"); lessons learned from the several cases now fully underway, or concluded except for appeals; and the hovering threat that States Parties will insist on  budget  reductions that will make it impossible for the Court to fulfill its responsibilities under its Statute.
There is a real recognition here that the right response to this fraught time for the Court and to the problems creating it can make for a stronger Court that is more credible, efficient, and viable. There is also sober awareness that most of these problems are very obdurate. There is unusual willingness here to engage with these problems, rather than just talk about them. The second week will need to make the very most of its short time and diplomatic resources for a strong start to making good on this awareness.