Monday, November 24, 2014

ASP Preparatory Meeting: Between Conflicts and Tensions

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]
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.

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.

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.  

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

Tuesday, November 11, 2014

Prosecutor's Statements on Israel and Palestine

Israel probably committed war crimes in an episode in Gaza, but the International Criminal Court (ICC) has no jurisdiction over them - so said the Court's Prosecutor last week. In May 2010, Turkey sent a flotilla of chartered ships to deliver humanitarian supplies to Gaza. Three of the ships, which Israeli special forces violently intercepted, flew the flags of member countries of the Court: the Comoros, Cambodia and Greece. These memberships enabled the Prosecutor to begin a preliminary examination of the event. She concluded that the probable war crimes committed in the interdiction did not meet the ICC's statutory requirements that they "be on a large scale or pursuant to a plan or policy." The Court therefore had no jurisdiction over them.

The Prosecutor strongly rejected here claims that she had yielded to political pressure not to bring charges against Israel. She had done the same in an earlier statement that the enhanced status the UN General Assembly has given Palestine, now qualified it to become a member state of the ICC or to obtain its jurisdiction over a particular situation.

These two reports establish that Palestine can use either of these options to bring claims of alleged Israeli crimes to the Court which its Prosecutor will take seriously. However, should Palestine do that, the Court will have jurisdiction to entertain Israeli charges against Palestine. This is almost certainly why Palestine continues to hesitate to use the Court.

By these decisions, the Prosecutor strongly confirmed and demonstrated that she will stand off politicization and external influences on her work and decisions. Her guide and mandate will remain the Rome Statute. This staunch position will come under future heavy pressure if a case begins to develop at the Court, which powerful countries including the United States contend vigorously is interfering with Israel - Palestine peace negotiations.

Written by John Washburn