Recent UN General Assembly Action on Palestine and Implications for the ICC

Following the overwhelming UN General Assembly (GA) vote on November 29 to accord Palestine non-member observer state status in its meetings we have revised our background paper on this issue

Palestine options at the ICC: The Palestine Authority (PA) could: 1) Attempt to become a State Party at the ICC by ratifying the Rome Statute and then refer crimes to the ICC; or 2) Remain a non-State Party but make a declaration accepting the Court's jurisdiction over a particular set of crimes. It is very important to recognize that in either option the PA would have to refer an entire situation or train of events to the ICC. This would permit the ICC Prosecutor to investigate or prosecute any crime within that situation allegedly committed by anyone, including crimes claimed to be by Palestinians against Israelis.

The State Party option would require the PA to ratify the Rome Statute and then present a document certifying the ratification to the UN Secretary-General. The Secretary-General is responsible for administering the Rome Statute. He would have to decide whether the PA was a state competent to ratify. Should he so decide, the Prosecutor and the rest of the ICC would be obliged to proceed as with any other State Party.

In the non-State Party option of a declaration of acceptance of jurisdiction followed by a referral, the Prosecutor would have to make the first decision on whether the PA was a state competent to make the referral. This decision could be challenged in the Pre-Trial Chamber by the PA, or by another state involved in the situation giving rise to the referral, such as Israel. The PA has in fact already tried this option by submitting a report of crimes and declaration of acceptance of jurisdiction to the ICC Prosecutor in 2009. In April, 2012, the Prosecutor released a decision that at that stage he was not empowered to decide on the PA's statehood status. A UN body such as the Security Council or the General Assembly, or the ICC's Assembly of States Parties, would have to make this determination. Since the GA's recent action, the press has reported that the current Prosecutor is giving the declaration further consideration.

Please refer to our background paper for full descriptions of the processes involved in both options.

Prospects for next steps by the PA: The PA has recently said that it does not plan any immediate actions at the ICC. Should it eventually resort to the Court, its interest would apparently be in asserted illegal Israeli occupation of the West Bank. The Authority has also recognized American threats to cut off aid if it brings charges at the ICC.
 
Implications for advocacy: A bipartisan group of senators have said that they will introduce legislation to make good on those threats. Statements by its members such as senators Schumer (D., N.Y.) and Graham (R., S.C.) have included familiar misunderstanding about the Court, such as that it can try enlisted service members. If ardent supporters of Israel and opponents of the Court converge over this issue, we will have a new and formidable challenge.

AMICC's Final Report on the ASP 11 in The Hague

US Ambassador-at-Large Stephen J. Rapp, Office of Global Criminal Justice, speaking in The Hague at the ASP's General Debate. Photo: ICC/SASP.

AMICC participated in the annual meeting meeting of the ICC's governing body, the Assembly of States Parties (ASP), in The Hague earlier this month. A final report on the session and issues important to AMICC is now available on our website.

At this session the ASP adopted a program budget for the Court for 2013, elected a Deputy Prosecutor and other officials, and held substantive meetings on the issues of cooperation and complementarity. Representatives from about 90 of the 121 States Parties, as well as observer states, including the United States, participated in the meetings. AMICC was one of many NGOs participating in the ASP. AMICC has been represented at all ASP meetings to date, in support of our advocacy as well as to inform our constituents and to engage with international civil society and Court leadership. At this session, AMICC attended official ASP meetings and relevant side events organized by NGOs, and disseminated live updates through social media outlets. These updates remain archived and available on AMICC’s Twitter feed and blog.

ICC's Assembly of States Parties, Meeting in The Hague, Is Set for Early Conclusion of Work



The ICC's Assembly of States Parties meeting, in The Hague.

 The International Criminal Court's governing body, having moved quickly through its work at its eleventh session here in The Hague, appears ready to finish the session tomorrow, one full day early. The session, which began on November 14 and completed both elections and a budget deal in its first four days, has completed most items on its agenda. Aside from some final details of several draft resolutions which occupy the agenda this afternoon, the ASP decided today that it will meet in plenary on Wednesday, November 20 at 3pm to adopt its reports and formally bring the session to a close. Here are some of the major developments since Saturday, when we last reported:

Plenary Session on Complementarity: Inspired by the interest in the issue of complementarity - the preference for and deference to domestic criminal prosecutions for atrocity crimes - following the 2010 Review Conference, the ASP scheduled a special plenary session featuring contributions from experts, Court officials, governments and representatives from NGOs. The ASP held a similar session on the issue of cooperation on Friday, November 16. Helen Clark, the former prime minister of New Zealand and current administrator of the UN Development Program, delivered delivered a keynote address about the role international development agencies, such as UNDP and others, can contribute to domestic capacity for dealing with ICC crimes. While recognizing the expectations for justice raised by the ICC as well as its limited capacity, Ms. Clark urged governments to take responsibility to deliver justice. The attorney general of Guatemala, a judge from the Special Court for Sierra Leone and the president of the International Center for Transitional Justice also made expert interventions.

Among the statements made by governments, Ambassador-at-Large for Global Criminal Justice Stephen J. Rapp spoke on behalf of the United States. He lauded the ASP's crucial discussion on both the policy and practice of complementarity. Ambassador Rapp highlighted the importance to governments - States Parties and non-States Parties alike - to strengthen domestic capacity in a manner that is both concerted and coordinated. Using the Democratic Republic of the Congo as an example, he emphasized that the US supports ICC prosecutions as well as national justice, in particular through:

- Funding support of complementarity;
- Using the tools of diplomacy to support complementarity;
- Providing technical and legal assistance to national systems; and
- Improving fugitive tracking efforts.

Ambassador Rapp also cited the establishment by the White House of the US government's inter-agency Atrocities Prevention Board (APB) which will ensure more accountability in US courts for atrocity crimes.

Working Group on Amendments: On Monday afternoon, the Working Group on Amendments - the ASP's standing body established to deal with proposed amendments to the Rome Statute - agreed to recommend that the ASP adopt an amendment to the Court's Rules and Procedure and Evidence. Once it is adopted tomorrow, the new Rule 132 bis will permit a single judge to perform the functions of a Trial Chamber for the purposes of trial preparation. The amendment was agreed by consensus and is expected to expedite ICC trial preparation.

2013 ICC Budget: The ASP's budget working group met this morning to finalize the agreement reached Friday on the Court's 2013 budget and to transmit the resolution and report to the ASP as a whole. Despite an effort by one government to change some language in one of the annexes of the budget, States Parties held firmly to the compromise budget of approximately 115 million Euros and refused to reopen any text for negotiation. The ASP will approve the budget at tomorrow afternoon's final plenary session.

Other Resolutions: The ASP will also adopt by consensus other resolutions, including on cooperation, complementarity, victims and the Independent Oversight Mechanism, a matter which has been deferred again until the next session. The omnibus resolution, which covers many subjects, has been pared down this year because some issues are now covered by stand-alone resolutions. According to the latest draft of the omnibus, the next ASP will be held November 20-28, 2013 in The Hague.

NGO Events and Activities: The ambitious ASP agenda has included many substantive and helpful contributions by civil society to the work of the ICC's governing body, including facilitating dialogue between NGOs and governments, and highlighting important issues such as the relationship between the ICC and the UN Security Council and a new initiative to adopt an international crimes against humanity treaty. AMICC attended and participated in many of these meetings, most of which drew significant interest and substantive discussion. In addition, several AMICC members have also been active at this ASP, including Human Rights Watch, CASIN (especially on Twitter) and the American Bar Association Center for Human Rights' ICC Project (and its delegate's article on funding international justice).

AMICC's reporting from The Hague ends today but will culminate in a final report, to be released on our website in early December.

Report from The Hague: ICC's ASP Elects Officials and Breaks Budget Stalemate

ICC President Judge Sang-hyun Song speaking at a tenth anniversary celebration for the ICC in The Hague. ICC-CPI photo. 

The eleventh annual meeting of the ICC's governing body, the Assembly of States Parties (ASP), in The Hague began earlier this week with a celebration of the Court's tenth anniversary at the Ridderzaal (The Knights Hall) in the presence of Queen Beatrix of the Netherlands. The ASP session moved quickly to the ICC's business and is set for a one-day break on Sunday, November 18 before the final four days of the session. AMICC has been participating in the session and meeting with delegates here as well as fellow NGO representatives. Here are some highlights from the first four days:

Reports from the ICC: Following the opening of the session on Wednesday afternoon with a speech by Senegalese President Macky Sall, the ASP in plenary heard reports from the Court's President, Prosecutor and Registrar as well as the Chair of the Board of Directors of the Trust Fund for Victims. The UN Legal Counsel Patricia O'Brien also made a statement on behalf of UN Secretary-General Ban Ki-moon.

Elections: The ASP elected by consensus five members of the ICC's Board of Directors of the Trust Fund for Victims and nine members of the newly-established Advisory Committee on Nominations. The ASP held three rounds of voting for the Deputy Prosecutor (Prosecutions) on Wednesday afternoon and two more on Friday. In the last round of voting it elected James Stewart of Canada to succeed Fatou Bensouda who became Prosecutor in June 2012.

General Debate - US Statement: On Thursday, the ASP dedicated the entire day to the General Debate in which governments, international organizations and NGOs were invited to make short statements on the theme of "the challenges ahead for the ICC." US Ambassador-at Large for Global Criminal Justice Stephen J. Rapp made a statement on behalf of the US in its capacity as an ASP Observer. He reiterated US support for all of the ICC cases and outlined the ways in which the US has supported the Court and the cause of international justice. In addressing what it means for the ICC to succeed in ensuring justice for victims, and what the US has done to contribute to this project and advance shared interests and values, he made the following points:

- It is essential that the fugitives who currently remain at large in the ICC's cases are apprehended and brought to trial, and that victims and witnesses are adequately protected.
- It is crucial that members of the international community continue to reinforce the legal norms and prohibitions that led to the creation institutions such as the ICC. He made a specific reference to the US government's inter-agency Atrocities Prevention Board.
- We must strive to improve our system of international criminal justice, including building solid jurisprudence, cooperation and legitimacy.
- We must all recognize that the ICC cannot and must not operate alone, highlighting the importance of the principle of complementarity and building of national judicial capacity.

Ambassador Rapp's speech is available on the ASP's website. The State Department also issued a speech in The Hague by State Department Legal Adviser Harold Koh on the State Department's website.

2013 ICC Budget: Agreement on the ICC's annual budget, which must be approved by the ASP, was expected to be the most contentious issue of this session, as it was at last year's. Through the skillful leadership of Sweden's ambassador, the ASP today achieved a compromise. While it is not expected to meet all of the ICC's needs, this deal means that there will not be a repeat of last year's effort on the part of several of the ICC's largest contributors to severely cut the budget. As such, the ASP will be able to focus on other issues, such as a substantive session on complementarity on Monday, just as it held a similar session yesterday on the question of cooperation.

When the ASP resumes its work on Monday, it will continue negotiations on several substantive resolutions, including on complementarity and cooperation, as well as of its "omnibus" resolution which serves as a catch-all for the issues that the Court and the ASP deal with. There will also be meetings and discussions on the future premises of the Court as well as possible amendments to the Rome Statute and the Rules of Procedure and Evidence. AMICC will continue to report primarily through its Twitter feed but will also share major developments through its blog.


AMICC Reports from the ASP in The Hague

Beginning on November 14, AMICC will participate in and report on the annual meeting meeting of the ICC's governing body, the Assembly of States Parties (ASP), in The Hague. AMICC has been represented at all ASP meetings to date, in support of our advocacy as well as to inform our constituents and to engage with international civil society and Court leadership. We will report in real time, through our blog and Twitter, and we will produce a final report on the session on issues relevant to AMICC.

There are several critical issues expected to arise at this session which are important to AMICC: the question of adequate financing of the Court by its States Parties; changes to the funding of the legal aid scheme; the election of important officials and experts; and the developing structure of and oversight by the Assembly. Because these issues are relevant to responding to criticism of the Court in the US and ultimately go to the long-term success of the ICC, AMICC has participated in the substantive drafting of many of the advocacy papers developed by thematic teams of the international NGO Coalition for the ICC (CICC). AMICC will confer with NGO colleagues on these issues in The Hague. We also plan to brief NGO colleagues on the US approach to the Court following the recent presidential election and to meet with representatives of the US government participating in the session.

Update on Cote d'Ivoire Case at the ICC and Related Domestic Proceedings

Former President of Cote d'Ivoire Laurent Koudou Gbagbo at his initial appearance at the ICC on December 5, 2011. Photo: ICC-CPI/Peter Dejong

By Kirkland Green

As AMICC has explained in its advocacy papers, the International Criminal Court has been investigating the Cote d’Ivoire situation since October 3, 2011. Although Cote d’Ivoire is not party to the Court, it accepted the ICC’s jurisdiction which means the Prosecutor could and did ask for permission from the Pre-Trial Chamber to examine alleged crimes there. The scope of the investigation now includes alleged atrocity crimes that occurred between September 19, 2002 and November 28, 2010. A year ago an ICC Pre-Trial Chamber issued an arrest warrant for former Cote d’Ivoire president Laurent Gbagbo for four counts of crimes against humanity. He is now the first former head of state to face trial at the ICC. There have been some delays in this case to determine if Gbagbo was fit to stand trial and the Court recently denied his request to leave The Hague while awaiting trial. There have also been developments in domestic cases dealing with related crimes.

Background of the Conflict

Divided by ethnic and religious lines, Cote d’Ivoire has been split between the north and the south since 2002. In November 2010, the sitting president Laurent Gbagbo refused to step down after losing re-election to former Prime Minister Alassane Ouattara. Despite pressure from various organizations, such as the African Union and the United Nations, Gbagbo refused to cede power. Subsequently, Gbagbo used security forces to “terrorize citizens in the country’s principal city, Abidjan, where more than 3,000 people were killed and uncounted were raped or mistreated.”

Domestic Justice Initiatives

The new leadership under Ouattara has committed to holding perpetrators of atrocity crimes accountable in domestic courts: “The murderers will be punished. The investigations are under way to shine the light on crimes…” On October 2, 2012 General Bruno Dogbo Ble, head of Gbagbo’s Republican Guard was the first individual to stand trial for post election violence in the country. He is currently charged with “a host of abuses that ‘likely constitute crimes against humanity.’” Also, Ivorian prosecutor Noel Dje Enrike Yahau has charged eight of Gbagbo’s top allies with genocide

Despite domestic initiatives for justice, both Gbagbo’s and Ouattara’s forces are alleged to have targeted “victims based on ethnicity and presumed political affiliation.” The Republican Forces of Côte d'Ivoire, who are loyal to Ouattara, are alleged to have committed various forms of violence. One of these includes an attack in Duekoue where hundreds of people thought to be supporting Gbagbo were murdered. Under Ouattara’s government, Cote d’Ivoire domestic prosecutions have come under criticism. So far no one loyal to Ouattara has been charged of atrocity crimes. Moreover, various analysts believe that the behavior of pro-Gbagbo forces do not meet the requirements of genocide, despite claims made by domestic courts. The head of the Cote d’Ivoire Coalition for the International Criminal Court (CI CPI) believes that Ivorian courts are not equipped to offer impartial justice.

ICC Developments

Although Cote d’Ivoire is not party to the ICC, it signed the Rome Statute on November 30, 1998 and accepted the Court’s jurisdiction three times. On September 26, 2012, the government adopted a series of bills to facilitate ratification of the treaty. The CI CPI and other members of Ivorian civil society believe that this is encouraging, but that more work is necessary to ensure impartial justice, such as increased ICC outreach to victims of atrocity crimes.

In The Hague, the Gbagbo case is proceeding slowly. Pre-trial judges postponed the confirmation of charges hearing, initially set for August, in order to allow for Gbagbo's health to be assessed. A few weeks later, the judges affirmed the validity of the government's acceptance of jurisdiction, rejecting an application to dismiss the case against Gbagbo.

Domestic courts have come under criticism for claims of victor’s justice. However, since the ICC has broadened the scope of its investigation to include alleged crimes that occurred since September 19, 2002, and the Prosecutor has vowed to "collect evidence impartially and independently," all perpetrators of atrocity crimes may be prosecuted. Moreover, Cote d’Ivoire government initiatives to ratify the Rome Statute may discourage any attempts to promote unfair justice.

AMICC Examines Remark in US Presidential Debate about Genocide Indictment

The ICC has not been an issue in the presidential campaign, though there has been interest about a remark made by candidate Mitt Romney in the last debate, focused on foreign policy, on October 22. Commentators and bloggers were interested in whether his remark signaled an openness to the ICC. In the segment on Iran, Mr. Romney said:

"Secondly, I’d take on diplomatic isolation efforts. I’d make sure that Ahmadinejad is indicted under the Genocide Convention. His words amount to genocide incitation. I would indict him for it. I would also make sure that their diplomats are treated like the pariah they are around the world, the same way we treated the apartheid diplomats of South Africa."

The statement raised several questions, including where such an indictment would be made. Mr. Romney's campaign clarified that he was referring to the "World Court" which, according to Talking Points Memo, the campaign aide believed could arrest Mr. Ahmadinejad. Twitter and foreign policy blogs have been abuzz with analysis of the statement, problems with it and the political context.

Here are a few points of clarification in light of Mr. Romney's statement:

Judicial Venue
- "World Court" usually refers to the UN's primary judicial organ, the International Court of Justice (ICJ) which deals with disputes between nations. While it could adjudicate claims regarding the Genocide Convention, as it did in the Serbia case in 2007, the ICJ can neither indict nor arrest individuals, as reportedly suggested by Mr. Romney's campaign.

- US courts, under federal law, as amended by the Genocide Accountability Act of 2007, Public Law 110-151 (December 21, 2007), allows for the prosecution of genocide in US courts if the crime is committed in whole or in part the US or if the offender is a US national, legal alien, habitual resident or is brought to or found in the US after the crime occurred. Incitement charges carry maximum penalties of $500,000 or five years imprisonment. Unless Mr. Ahmadinejad were brought to or found in the US, an indictment in the US is unlikely.

- The ICC does not now have jurisdiction over the territories or citizens of Iran or Israel, at least one of which would be required in order to bring a case against an Iranian national for statements intended to incite crimes on Israeli territory. If it did, the Prosecutor could not act without a State Party referral or permission from the Pre-Trial Chamber.

- In the absence of such jurisdiction, the ICC could not act without a referral from the UN Security Council - the near certainty of a veto by China or Russia makes this unlikely.

Alleged Crimes
- Incitement to genocide is one of the crimes under the Rome Statute (Article 6; Article 25(3)(e): "In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person ... [i]n respect of the crime of genocide, directly and publicly incites others to commit genocide").

- The factual accuracy of Mr. Ahmadinejad's alleged incitement has been the subject of fact-checking. The findings so far are unclear as to the circumstances and sources of his alleged statements about Israel.

At UN Security Council Open Debate on the ICC, United States Reaffirms Role of ICC, Cooperation

On October 17, 2012 the UN Security Council debated the promotion of rule of raw and the role of ICC. UN Photo/Rick Bajornas

At the first-ever open debate in the Security Council specifically about the ICC, US Ambassador to the UN Susan Rice recognized "that the ICC can be an important tool for accountability" and that "we've responded positively to informal requests for assistance" from the ICC. Read more.

The debate also featured statements by:

• UN Secretary-General Ban Ki-moon
• ICC President Judge Sang-Hyun Song
• ICC Office of the Prosecutor Jurisdiction, Complementarity and Cooperation Division Director Phakiso Mochochoko