On the 20th of
November 2014, AMICC attended a meeting of the New York Working Group chaired
by the President of the ASP, Ambassador Tina Intelman. The meeting was in order
to present opinions about all aspects of the agenda and of its supplementary
items and lasted less than an hour. The 13th session of the Assembly will in
fact take place in New York at the UN headquarters from Monday 8th of December
to Wednesday 17th with the expected participation of States Parties
representatives, Observer States representatives, members of intergovernmental,
non- governmental organizations and other entities.
The invitation to
attend this preparatory meeting was sent by the Secretariat of the Court to the
New York Working group only one day before the scheduled date. This
circumstance may have affected not only the participation in the event but also
the content and duration of the meeting itself, a circumstance that some of the
participants did not expect at all.
[Important topics
addressed by the President]
Elections of the new
six judges
The President
opened the discussion underlining the most important event which will take
place during the session of the ASP, namely the election of new six judges of
the Court who has been scheduled on Tuesday 9th of December and the remarkable
role played by the Advisory Committee on Nominations. The President pointed out
that the ACN is an independent body mandated to facilitate that the highest
qualified individuals are appointed as judges of the International Criminal
Court. The Committee conducted an assessment of candidates, based on the
analysis of the supporting documentation from States parties and on an interview
of each candidate. She also added that the standard set of questions the
candidates were asked, aims to gather more information about the candidate and
therefore every State Party is invited to send more documentation if it is
relevant in making the decision.
She also mentioned
the close collaboration with the newly endorsed President of the Assembly, Mr.
Sidiki Kaba in the preparatory work of the session. She expressed satisfaction
at the effectiveness and productivity of their already close coordination.
Discussion on cooperation
Another important
event mentioned was the discussion on cooperation (scheduled on Thursday the
11th). During this session this panel discussion will have its focus on
complementarity whereas last year the topic of cooperation was related to the
protection of witnesses.
Furthermore, there
will be one high level speaker: the President of the Central Africa Republic,
H.E. Ms. Catherine Samba Panza. His participation in the session is very
significant as the CAR was the last country which referred its situation to the
Court.
Supplementary items
requested for inclusion in the agenda: the Kenyan and Ugandan issues
The President
enumerated then the ASP documents that have been released and issued by the
Secretariat including the provisional work programme, the provisional agenda
and the Journal of the session. This documentation is only provisional and
changes will be made before and during the session.
Another two
important documents that have been circulated are the request by Uganda and
France for inclusion of an additional item in the agenda (ICC-ASP/13/35) and
the list of supplementary items requested for inclusion in the agenda
(ICC-ASP/13/34/Rev). In particular, the proposed supplementary items submitted
for consideration by the Bureau are the Kenyan request to include the item
“Special Session to discuss the conduct of the Court and the Office of the
Prosecutor” in compliance with rule 12 of the Rules of procedure of the ASP and
the Ugandan and French request to include “Pensions entitlements for former
judges Bruno Cotte and Professor Daniel N. Nsereko”in compliance with rule 13
of the Rules of procedure of the ASP.
Furthermore, the
President clarified to the audience the difference between supplementary items
and additional items as formulated in the Rule of procedure and evidence of the
ASP by quoting rule 12 and 13 of the Rule of Procedure of the ASP. Kenyan
request is a supplementary item as stated in rule 12: “any State Party, the
Court or the Bureau may at least thirty days before the date fixed for the
opening of a regular session, request the inclusion of supplementary items in
the agenda”. Ugandan request was made pursuant to rule 13 “additional items”.
According to rule 13 “Additional items of an important and urgent character,
proposed for inclusion in the agenda less than thirty days before the opening
of a regular session or during a session may be placed on the agenda of the
Assembly if the Assembly so decides by a majority of the members present and
voting.
Budget issue
There was a
briefing on the adoption of the 2015 Budget following the release of the CFB
report on the budget and the New York Working Group held on the 17th on this
issue. The briefing on the budget of the Court by the Chair of the Committee on
Budget and Finance, Ms. Carolina Fernandez Opazo, and by the facilitator for
the budget, the Ambassador of Austria to The Netherlands resulted in the Report
of the Committee on Budget and Finance with a proposed increase of increase of
€17.36 million or (14.3 per cent) over the 2014 approved budget. However, the
President noted that the CFB had a proposal of an increase of 16% but the
facilitator told clearly that the 16% increase is not feasible.
Report on the
Working Method of the ASP
She said that the
Working Method of the ASP needs to be simplified and streamlined. Then she
mentioned a 1651 page report regarding the Working method of the ASP that is
going to be translated by the Court. Finally, she concluded her introduction on
this subject by stressing the need to restrain the length of the session.
Before giving the floor to the audience, the President invited member states
representatives, NGOs and the rest of the audience to present their opinions
about the ASP session
[Interventions from
the audience]
Kenya
The representative
of Kenya told the audience that there has been much controversial debate about
Kenyan’s request and that there was no need to add anything else. President Kenyatta
has written to the Bureau and consultations continue. Kenya is waiting to see
what the Bureau is going to decide.
Coalition for the
ICC
William Pace of
the CICC stated that the CICC will attend constructively and constantly to the
ASP session in order to support and sustain all items which contribute to
preserve and defend the integrity and independence of the Court. The CICC has
already issued several papers regarding different issues, elections of judges,
sexual and gender crimes, registry reform, independent and oversight mechanism.
(IOM)
He then mentioned the UNGA vote to support the resolution
which called the UNSC to refer heinous crimes committed by an Asian country to
the ICC. Yes: 111. No: 90. Abstentions: 55. The ASP should not be surprised if
the CICC will advocate encouraging the ICC’s leading role and will oppose the
proposal to restrict the budget through a growth zero formula. Furthermore, the
CICC rejects the Kenyan proposals to discuss and assess the conduct of the
prosecutor and of other ICC’s senior officials as this would undermine the
independence of the ICC and infringe the independence and integrity of the
judiciary as enshrined in the Rome Statute.
Human Rights Watch
A Human Rights
Watch representative raised his concerns regarding the Kenyan supplementary
items as these issues arise from two pending cases the ICC judiciary is considering
and therefore any discussion would constitute serious infringement of the
independence of the judiciary. Furthermore, this request is based on an
erroneous interpretation of art. 112 of the Rome Statute and therefore in HRW’s
view, cannot stand as an item of the ASP agenda. It is a question of respect of
the ASP ‘s rules and procedure. If Kenya wants to discuss aspects regarding his
request, then he must formulate his request within the parameters of art.112 of
the Statute. The ASP should be the steward of the impartiality and independence
of the Court.
Argentina
The representative
of Argentina pointed out that the proposal of the new agenda items should be
taken into account. Argentina is a member of the bureau and so time should be
given to the Bureau to come up with some recommendations. There are other items
the Bureau is considering such as new possible referral for crimes committed in
Syria.
Liechtenstein
The representative
of Liechtenstein made it clear that its delegation thinks that request
regarding the pensions are not necessary, they are items already submitted
within existing general agenda items. There is an absolute consensus regarding
the non-inclusion of Kenya’s proposal in the ASP agenda. He stressed that it is
not up to the ASP to comment about ICC judges’ or Prosecutor’s conduct. There
is a clear framework to evaluate the conduct of the Prosecutor provided in the
Statute. The ASP cannot discuss these issues as it is not in the ASP’S
competence to discuss the attitude of the judiciary.
Kenya
The representative
of Kenya replied to the discussion saying that issues should be put in their
contest and all agenda items can be discussed before the ASP according to its
rules. The Bureau should be given space to discuss about them. The Kenyan
request is not about the conduct of the Principals of the Court but is about
the interpretation of the Statute. The ASP is the pinnacle of the Court and
therefore discussions with the Bureau about these topics are possible.
Conduct of the
Court can be discussed since it is an issue of the Rome Statute and the ASP is
the right body to discuss them. The Kenyan delegation is perplexed as opponents
to their proposals didn’t seek for clarification from Kenya. It is time for
State Parties to have a discussion on the matters we are proposing which regard
the process and the interpretation of the Rome Statute.
[AMICC observations]
Kenya’s request
AMICC supports
fully the view expressed by the two main NGOs members representing the civil
society both domestically and internationally. The supplementary items
requested by Kenya should not be included in the ASP agenda.
Firstly, these
proposals violate the independence of the judges and Prosecutor. They go beyond
the ASP role and mandate and arise from a misinterpretation of the Rome
Statute, namely art.112, it is an abuse of competence of the ASP. Thirdly, the
judiciary is independent and cannot be assessed or influenced by the Assembly
of States Party which is a political body.
On the budget, it
is clear that the tension between the two identities of the ICC as a court and
as an international organization is leading to budget actions by States Parties
which threaten the viability and credibility of the Court. As President Sang
has said, a conventional international organization can usually sacrifice its
programs without endangering its legitimacy.
The ICC cannot
refuse to take obviously eligible cases without threatening its reasons for
existence.
Written for AMICC by
Miriam Morfino
