International Tribunals and UN Resolutions
Updates on CEDAW and UN Resolution 1325
Sarah Schmidt, Benjamin B. Ferencz Fellow in Human Rights and Law
CEDAW: The Convention on the Elimination of all forms of Discrimination against Women
Countries that have ratified CEDAW must submit periodic reports about their progress in eliminating discrimination against women. Nepalese civil society is preparing to send an alternate report on the nation’s CEDAW compliance progress because the government is now ten months behind their reporting deadline. More than 50 NGOs are working to prepare the report, which they hope will compel the government to act with greater haste to submit the official report.
Human Rights Watch sent a letter to the Tanzanian government this month urging that it follow a UN CEDAW decision last year requiring that reparations be made to two widows who were denied their rightful inheritance from their deceased husbands. CEDAW cites this case as failure by the Tanzanian government to revise its codified sex-discriminatory inheritance laws. The failure to address this type of discrimination against women brings Tanzania out of compliance with the agreements made when ratifying CEDAW and the Optional Protocol.
The 19th gathering of the States Parties to CEDAW begins on June 21, 2016 at UN headquarters in New York. Eleven committee members will be nominated to replace current committee members whose terms expire at the end of this year. States Parties were required to submit their nominations by March 7, 2016.
Margaret Owen, Director of Widows for Peace through Democracy, the Patron of Peace in Kurdistan, and a UK barrister, recently wrote about utilizing CEDAW rather than the UN Commission on the Status of Women to promote gender equality. More information is here: https://www.opendemocracy.net/5050/margaret-owen/un-csw-cedaw-article-5-must-be-applied-now
Security Council Resolution 1325: Women, Peace, and Security
On March 28, 2016, the UN Security Council met for open debate. A number of speakers emphasized the need for women to have roles central to the peacemaking process in Africa. It was noted that Women’s Situation Rooms have been established in Liberia, Sierra Leone, Senegal, Mali, Guinea-Bissau, Uganda and Kenya. Their purpose is to aid in the prevention of electoral violence, especially against women. These countries have also set up training centers for women who are then dispatched as monitors during elections. One notable speaker at the open debate, Phumzile Mlambo-Ngcuka, Executive Director of the United Nations Entity for Gender Equality and Empowerment of Women (UN-Women), emphasized that though rarely visible, it is extremely important to have women in these roles. She said, “Women’s empowerment is our best line of defense against militarism and violent extremism.” While these African nations have taken great steps forward, there is still much work to be done in that region and globally to ensure that women are integrally involved in the peacemaking process.
by Michelle Johnson, Benjamin B. Ferencz Fellow in Human Rights and Law
International Criminal Tribunal for Rwanda (ICTR):
This month commemorates the 22nd anniversary of the 1994 genocide in Rwanda. The Mechanism for International Criminal Tribunals (MICT) participated in a memorial service in Arusha, Tanzania. MICT representative Mr. Samuel Akorimo stated in his address, “We must relentlessly disseminate knowledge, combat impunity, and be vigilant in opposing ethnic divisions and violence. In that way, our work continues to give the younger generation a stronger legacy to prevent the insidious ideas of genocide from taking root again, in Rwanda and elsewhere around the world.”
Ladislas Ntaganzwa, one of nine ICTR fugitives wanted for trial for crimes committed during the genocide, was transferred by the Democratic Republic of the Congo to Rwanda for trial, pursuant to an international warrant of arrest issued by the MICT. Ntaganzwa, a former mayor, was indicted in 1996 by the ICTR for genocide and crimes against humanity for the massacres of thousands of Tutsis. He is further alleged to have orchestrated rape and sexual violence against many women. The UN Security Council urged the Democratic Republic of the Congo to transfer Ntaganzwa to Rwanda for trial without delay. Eight other fugitives remain at large, including the top three earmarked for trial by the MICT. The MICT called upon the international community to provide full support to the MICT in securing the arrest and transfer of these remaining fugitives.
Rwandan authorities are requesting that the ICTR records including video recordings, written requests to the Court, and written decisions be transferred to Rwanda for archival purposes. The Minister of Justice states Rwandans will never stop asking for the archives and believes that the archives are a necessary tool in furthering reconciliation and healing the people of Rwanda. The UN Security Council continues to deny the request on the grounds that the move could put some witnesses at risk.
International Criminal Tribunal for the former Yugoslavia (ICTY):
The Tribunal convicted Radovan Karadzic, former President of the Republike Srpska and Supreme Commander of its armed forces, of genocide, crimes against humanity, and violations of the laws or customs of war committed by Serb forces during the armed conflict in Bosnia and Herzegovina from 1992 until 1995. He was acquitted of the charge of genocide outside of Srebrenica. He was sentenced to 40 years imprisonment.
The Trial Chamber III acquitted Vojislav Seselj, President of the Serbian Radian Party and former member of the Assembly of the Republic of Serbia. Seselj faced nine counts: three were crimes against humanity (persecution, deportation and inhumane act of forcible transfer) and six were war crimes (murder, torture and cruel treatment, wanton destruction, destruction or willful damage to institutions dedicated to religion or education, plunder of public or private property). He was accused of having directly committed, incited, aided and abetted those crimes committed by Serbian forces during the period from August 1991 until September 1993. The majority found the Prosecution failed to provide the existence of a criminal purpose, a legal requirement to participation in a joint criminal enterprise. The majority concluded that the creation of greater Serbia was more of a political venture than a criminal project. Chambers acknowledged that crimes were committed by Serbian forces in the process but that they were not inherently linked to the fulfillment of the purpose of greater Serbia.
Since its establishment, the Tribunal has indicted 161 persons for serious violations of humanitarian law committed on the territory of the former Yugoslavia between 1991 and 2001. Proceedings against 149 have been concluded. Proceedings are currently ongoing for eleven accused.
Special Court for Sierra Leone (SCSL):
Moinina Fofana admitted that he violated his conditional early release agreement, which allowed him to serve the remainder of his 15-year sentence for war crimes and crimes against humanity in his home community. Fofana was convicted by the Special Court for murder, cruel treatment and pillage.
Extraordinary Chambers in the Courts of Cambodia (ECCC):
On March 14, 2016, Ao An was charged with three crimes including 1) genocide of the Cham; 2) crimes against humanity, namely murder, extermination, enslavement, imprisonment, torture, forced marriage, rape, and enforced disappearance; and 3) violations of the 1956 Cambodian Penal code, namely premeditated homicide. The charges include both new and previous charges which were disclosed during Ao An’s initial appearance in 2015.
Trial Chambers began hearing evidence on the fourth trial topic in Case 02/02: Security Centers and Internal Purges. According to Chambers records, Nuon Chea and Khieu Samphan destroyed Cambodia’s legal system and judicial structure and replaced them with a network of security centers and execution sites in order to detain and re-educate or kill those suspected of engaging in hostile activities. By 1979, approximately 200 security centers and countless execution sites were established, located in every zone throughout Cambodia and at various levels of the civilian and military hierarchy.
The International Criminal Court Case Update
Megan Manion, Benjamin B. Ferencz Fellow in Human Rights and Law
The Case Against Germain Katanga
Following up on earlier coverage of the ICC and Democratic Republic of Congo, Mr. Germain Katanga’s case has resurfaced and it required new action by the International Criminal Court.
In a process that had little international media attention, the President of the ICC approved the domestic prosecution of Mr. Katanga in DRC, his home country.
This decision presents a unique opportunity for the ICC to showcase the complementarity principle, which means that the ICC only prosecutes cases when a state is either unwilling or unable to handle the prosecution in its own national courts.
Domestic proceedings and the Court’s approval of them indicate a broad willingness to allow for national prosecutions wherein individual states prosecute those accused of war crimes, crimes against humanity, and genocide, even after ICC trials have concluded. Further, in the context of heightened criticisms against the ICC for only pursuing cases on the African continent, this will be an interesting addition and localization of criminal accountability.
In addition to these benefits, this decision also highlights a controversial point for US supporters of the ICC. Often, opponents of the Court claim that the ICC fails to provide the constitutional safeguards required by US law. To the contrary and as this decision shows, the Rome Statute and its judges are well-equipped to deal with issues around the rights of the accused. The Court considered Mr. Katanga’s right to a fair trial, whether he would be subjected to the death penalty (which DRC has formally assured the Court will not be applied in his case), whether DRC improperly used the ‘state of enforcement’ procedures to gain custody over Mr. Katanga, the overall implications for the integrity of the Court, and whether he is being prosecuted for crimes of which he has already been convicted and acquitted.
As the Court continues to hear more issues and interprets and applies the entirety of its mandate under the Rome Statute, it will be harder and harder to deny the competency and attention to defendants’ rights. This decision and the others to follow this precedent will be clearer and more practical tools for advocacy that can allow advocates for the ICC to address those critics’ concerns.
Some critics of this decision contend that Katanga is being tried for crimes that overlap with his convictions and acquittals at the ICC. While US advocates may find this decision a helpful tool in advocating for US engagement, these critiques are a necessary component to keeping the ICC accountable and effective.
International Criminal Tribunal for Rwanda (ICTR):
by Michelle Johnson, Benjamin B. Ferencz Fellow in Human Rights and Law
The International Criminal Tribunal for Rwanda, an ad hoc court that began in 1994 to prosecute perpetrators of the 1994 Rwandan genocide, concluded its operations on December 31, 2015.
The United Nations Mechanism for International Criminal Tribunals has taken over final responsibilities and duties for the ICTR. The Mechanism was created by the UN Security Council to carry out a number of essential functions after the courts for Rwanda and former Yugoslavia completed their mandates. The remaining ad hoc functions include tracking and prosecuting remaining fugitives; handling any appeals, retrials, trials for contempt of court and false testimony, and proceedings for review of final judgment.
The Mechanism’s continuing functions include victim and witness protection, supervision of enforcement of sentences, assistance to national jurisdictions, and preservation and management of the tribunals’ archives.
On December 9, authorities in the Democratic Republic of Congo arrested one of the nine Rwandan fugitives Ladislas Ntaganzwa, a former mayor. He was indicted by the ICTR for genocide and crimes against humanity for the massacre of thousands of Tutsis at various locations in his locality. He is also alleged to have orchestrated the rape and sexual violence committed against many women.
International Criminal Tribunal for the former Yugoslavia (ICTY):
The Tribunal is scheduled to render its verdict in the case of Radovan Karadzic on March 24, 2016. Karadzic was a founding member and President of the Serbian Democratic Party of Bosnia and Herzegovina. He acted as Chair of the National Security Council and Supreme Commander of the armed forces. He is charged with two counts of genocide, five counts of crimes against humanity, and four counts of violations of the laws or customs of war.
Another chamber of the Tribunal will render its verdict in the case of Vojislav Seselj on March, 31, 2016. Seselj is charged with war crimes and crimes against humanity. The indictment alleges that he participated in the recruitment, formation, financing, supply, support, and direction of Serbian volunteer units created to assist in forcible removal of a majority of the Croat, Muslim, and other non-Serb populations from Croatia and Serbia.
Special Court to Sierra Leone (SCSL):
The President and Judges of the Residual Special Court for Sierra Leone met in The Hague, Netherlands, to deliberate on matters related to the proper functioning of the RSCSL and on the challenges of the enforcement of sentences. They approved the finalization of the Appeals Chambers major jurisprudential legacy project, a legal briefing book entitled “Bearing the Greatest Responsibility: Select Jurisprudence of the Special Court for Sierra Leone.”
This Court was the first international tribunal to try and convict persons for the use of child soldiers, forced marriages, and for attacks directed against United Nations peacekeepers as crimes against humanity. In 2015, the RSCSL was the first court to grant conditional early release to a prisoner to serve the balance of his sentence in his community, subject to strict conditions and monitoring.
Extraordinary Chambers in the Courts of Cambodia (ECCC):
The Victims Support Section (VSS) of this Court will carry out a second-phase project entitled “Promoting Gender Equality and Improving Access of Justice for Female and Gender-based violence Survivors of the Khmer Rouge regime.” The project was funded by the UN Trust Fund with $1 million and will be implemented in three years.
The Appeal Hearing for Noun Chea resumed on February 16. The hearing was continued from November due to lack of legal representation for the defense. The International co-lawyer for the defense failed to attend the November hearing and the national co-lawyer walked out of the courtroom after Chea informed the court that his international lawyer would not be present in court and instructed his co-national lawyer to not answer any questions of the court. The court has ordered a standby co-lawyer to remain present in the courtroom at all times during the appeal hearing. According to the Court, this standby counsel must be prepared to take over the defense if the Chamber so directs.
Convention on the Elimination of all forms of Discrimination Against Women Update
By: Sarah Schmidt, Benjamin B. Ferencz Fellow in Human Rights and Law
A special session of the UN Committee on CEDAW convened recently in Geneva to discuss gender-related aspects of disaster risk reduction. Representatives from Africa made it clear that women and girls should be at the core of the risk reduction framework, called the Sendai Framework, which was put in place last March. The head of the UN’s Office for Disaster Risk Reduction, Robert Glasser, emphasized at the meeting that, “among the gender equality gaps that need addressing are participation in decision- making and resource management, and access to social protection measures, education, health, and early warning.” 
Nepal has nominated Bandana Rana as a candidate for the UN Committee on CEDAW. Elections will take place in New York on June 21, 2016 to elect the eleven new members of the Committee who will replace those whose terms will end on December 31, 2016. 
Japan was among the countries whose CEDAW implementation progress was most recently examined by the UN Committee on CEDAW. The Committee recommended that “Japan increase its efforts, for instance, to regulate cartoons containing depictions of sexual violence against women, prevent domestic violence, and introduce a system for married couples to be legally allowed to use separate surnames.” The Committee asked that Japan find a permanent solution to the issue of comfort women, to hold responsible those who first implemented the system of comfort women, and to pay reparations to former comfort women. 
UN Resolution 1325 on Women, Peace, and Security
Brutality and sexual violence crimes are being inflicted on women and girls by groups like ISIS and Boko Haram. International efforts to end impunity, led by both by state and non-state actors, need to be stepped up, and international directives, namely UN Security Council Resolution 1325, need to be implemented more comprehensively to create the long- term changes needed to end the violence. Experts say, “Sexual violence is a tool of war, but we have the weapons to end that.”
The UN Special Committee on Peacekeeping Operations began its 2016 session last month. UN Deputy Secretary General Jan Eliasson told attendees that comprehensive reform on peacekeeping will be addressed by a multi-year agenda and will take into account last year’s review of Resolution 1325’s implementation and recommendations . He also discussed UN Secretary-General Ban Ki-Moon’s establishment of the High-Level Panel on Peace Operations and stressed that the Special Committees has three main directives: to strengthen conflict prevention; build more effective global and regional partnerships; and improve the planning and conduct of UN peace operations.
 UN News Service and AllAfrica.com
 Kathmandu Post
 Japan News
The International Criminal Court
World Without Genocide Fellows attend International Criminal Court meetings
After the Holocaust, the Allied nations prosecuted Nazis at the Nuremberg Trials in 1945. Those trials, the first-ever practice of international justice, created a dream for many human rights leaders of a permanent court to adjudicate perpetrators of genocide and other atrocity crimes. In 2002,that dream became a reality when the International Criminal Court began operating in The Hague, Netherlands.
The Court’s jurisdiction is the prosecution of individuals for genocide, war crimes, crimes against humanity, and aggression perpetrated since 2002.
There are now 123 nations that have ratified their support for the Court, and although the United States is not yet one of those ratifying nations, the US supports the work of the Court in significant ways.
Each winter, representatives of the states parties, as the nations are called, and other entities that are involved with the Court meet to discuss and decide management and legislative issues about the Court.
This year’s Assembly of States Parties will be held at the World Forum in The Hague, November 18-26.
For the first time, five Benjamin B. Ferencz Fellows in Human Rights and Law from World Without Genocide will participate in these meetings as delegates with AMICC, the American NGO Coalition for the International Criminal Court. The Fellows are law students Guled Ibrahim, Michelle Johnson, Megan Manion, Alejandra Sanchez, and Sarah Schmidt.
In addition, two former associates from World Without Genocide, Christie Nicoson (former Program and Operations Director) and James Petermeier, J.D. (former research associate)will attend with the delegation of the Coalition for the International Criminal Court. Both Christie and James are current master’s degree students at the Rotary Peace Center, Uppsala University, Sweden.
Each of our delegates will share their experiences on this site during the meeting. Please check their daily posts about this important international meeting.
Day One – Christie Nicoson, World Without Genocide Associate
The International Criminal Court’s 14th Assembly of States Parties began today with an emphasis on the challenges and opportunities that lie ahead. In the coming year, the Court anticipates an unprecedented workload: four trials, involving ten accused persons, and further examinations into nine situations.
The Assembly welcomed state representatives, NGO members, and observers who contribute in many ways to the mandate of the Court. In collaboration with member states, these supporters are crucial to the international community’s pursuit of justice around the world. Fatou Bensouda, the Prosecutor of the Court, reminded members of the Assembly that their support is critical and that “the hopes and expectations of victims of atrocity crimes must weigh heavily on our collective conscience, and compel us to stay ever committed to the cause of international criminal justice.
Day Two – Sarah Schmidt, Benjamin B. Ferencz Fellow in Human Rights and Law
The ASP 14 convening continued on Thursday with the Coalition for the International Criminal Court holding a briefing in which ICC Chief Prosecutor Fatou Bensouda addressed the room in a question and answer session. She emphasized that her office is always open to anyone and she welcomes inquiries by anyone at any time.
The large morning session continued the General Debate, during which a number of states’ representatives stressed the need for greater cooperation with the ICC, increased
complementarity within domestic laws, the importance of the universality of the Court, and the ongoing struggle against impunity that must be fought by all states.
Thursday afternoon saw the first side sessions of the convening on the following topics: the place of victims in national procedures and the ICC; cooperation with the Court; the Justice Rapid Response’s introduction of its International Deployment Fund to strengthen investigational capacity; complementarity in Africa; the Multilateral Treaty for Mutual Assistance initiative; and digital evidence.
Capping off the day was another large plenary session comprised of a two-panel discussion on complementarity in regard to gender-based violence and crimes and victim empowerment. The panelists included Chief Prosecutor Bensouda, Swedish Minister of Culture and Democracy Alice Bah Kuhnke, the Attorney Generals of Guatemala and Botswana, the Director of Prosecutors in Uganda, the founder of Women’s Initiatives for Gender Justice Brigid Inder, and Irene Khan, Director of the International Development Law Organization.
Day Three – James Petermeier, J.D., World Without Genocide Associate
On day three of the International Criminal Court’s 14th Assembly of States Parties, state representatives discussed the issue of voluntary cooperation agreements between the Court and member states. Specifically, the discussion concluded that states must work toward greater cooperation in two main areas: the enforcement of ICC sentences and the relocation and protection of witnesses. State delegates addressed what more needs to be done to bolster these voluntary agreements. Suggestions ranged from state hosted
conferences and seminars to increasing the number of states that have established these voluntary agreements.
During one of the day’s breakout sessions, World Without Genocide associates listened as ICC President Judge Silvia Fernández de Gurmendi and Director of the War Crimes Research Office at Washington College of Law at American University Susana SáCouto discussed possible amendments to the ICC’s pretrial confirmation of charges process. The two examined whether it is more effective to strengthen the process by lengthening or expediting the pretrial confirmation process.
Day three closed with an unusual session in which the Assembly allowed the countries of South Africa and Kenya to discuss several grievances that they wished to express to the Court. These grievances revolved around the Court’s interpretation of key provisions of the Rome Statute.
Extending Justice: The International Criminal Court Beyond The Hague
Reflection by Christie Nicoson, World Without Genocide Associate
The International Criminal Court is one of today’s most successful examples of broad cooperation between countries. To date, 123 countries have signed the Rome Statute, making them a state party to the Court. They have joined a powerful network of countries dedicated to justice, a global community committed to holding criminals accountable.
To some, the Court seems lofty – an impossibly high ideal of prosecuting the most heinous crimes in a place far removed from where most of these crimes are committed. The
crimes, criminals, victims, witnesses, and evidence are scattered around the world; the Court is in The Hague, in the Netherlands.
At the 14th Assembly of States Parties, members, supporting countries, and members of civil society sought to close this gap. It has begun a shift toward a greater presence in the field.
A new approach is changing the way the Court operates. The ICC Registry is working to build a meaningful presence in the field by reaching out to the communities it serves to build trust, search for justice, and build lasting relationships.
This means establishing field offices in many locations around the world. The ICC works with local partners and communities to create a presence that is mutually beneficial. They use the Internet, social media, radio broadcasts – the media that best serve local populations to spread the news about prosecutions and improve the visibility of justice. They conduct interviews and collect evidence to build strong cases. Fieldwork brings the Court to the people.
When the Court began, it was isolated in The Hague. Today, although the Court remains headquartered in the Netherlands, it operates with a much wider reach and with field offices in countries around the world. Through this new approach, the Court not only builds stronger cases, it establishes foundations for the rule of law in far reaches of the globe. The Court is already a powerful force for justice. Its field presence will ensure that the Court continues toward its goal of ending impunity and bringing justice to victims.
Day Four – James Petermeier, J.D., World Without Genocide Associate
The first few days of the ICC’s 14th Assembly of State Parties has been an interesting look at the likely concerns of the ASP for the next few years, including the expanding workload of the Court, and the need for cooperation by states in victim protection and sentence enforcement. Only through great cooperation of states will the Court be able to realize its mandate. This is especially true with the world as it is today and as it will be in the future.
The most noteworthy experience I had at the ASP was to sit in on a panel discussing victim reparations. Panelists explained the need to include the victim’s voice during trial. One panelist discussed how allowing victims to tell of their traumatic experiences in the trial can have a healing effect. This healing effect is greatest when the victim feels that his or her testimony leads to justice being served. However, if victims feel that justice has not been served, reliving the traumatizing experiences in court can actually be more traumatizing. A second panelist, a survivors’ advocate, explained how incredibly challenging it can be to represent these survivors. The advocate explained that long before the trail begins, he finds himself without the time or resources necessary to adequately incorporate the survivor’s voice. These challenges include matters as simple as explaining his role in the matter to matters as complicated as properly explaining how the victim’s inclusion will influence reparations.
Given the varying perceptions victims can have regarding their participation, the challenges explained by this advocate lead to the question of whether victims should even be included. On the one hand, early challenges experienced by victims can lead to diminished perceptions of justice and greater re-traumatization in the long run. On the other hand, success after great adversity can lead to an enhanced feeling of justice. While the perceptions of justice are in the eyes of the survivor, perhaps the answer to this question is in the hands of the Assembly. If it is such a feat to include the voices of these victims, perhaps the Assembly should make the rules more flexible to encourage and allow easier inclusion of the victim’s voice.
Day Five – Megan Manion, Benjamin B. Ferencz Fellow in Human Rights and Law
The Assembly of States Parties is the central forum for governance of the International Criminal Court. It also provides a setting for the Court’s participants, advocates, and civil society stakeholders to discuss critical issues facing the Court and their work in relation to it. This year, “gendered legacies” of the International Criminal Court and sexual and gender-based crimes have been a consistent thread throughout the Assembly. To many, this is a long-awaited affirmation of importance of gender justice both in principle and practice.
The gender justice advocates have had a consistent platform to frame the creation of the ICC and advancement of international criminal law as a discipline that has not developed in a vacuum. Its origins and conceptions are necessarily within the larger framework of historical patriarchy and gender bias. It is heartening to note the platform for which these issues have been taken up at ASP 14. Side events have highlighted issues from around the world and have included the foremost experts on law and gender justice. Earlier in the Assembly, we saw a plenary session with experts from around the world, including Madame Prosecutor Fatou Bensouda and her Special Gender Advisor, Brigid Inder of the Women’s Initiatives for Gender Justice. This panel focused on the International Criminal Court’s role in complementing national criminal procedures using sexual and gender- based crimes to highlight the advances and the difficulties of this fundamental principle.
Further sessions deepened delegates’ understanding of gender and the Court through discussions of the misconceptions and biases in prosecution and judging at the International Court, ad hoc tribunals, and national courts. Prosecutor Fatou Bensouda pointed out the advances she seeks within her own office. Her commitment to prosecuting sexual and gender-based violence are just one contribution among the many that are needed. One of her reforms requires that, even at the initial investigation stage, an investigator must justify his or her reasons for not undertaking an investigation of sexual and gender-based crimes. The 14th ASP has not only highlighted the factual failures and successes in domestic courts of member states in redefining sexual and gender-based crimes, but has also critically brought gender mainstreaming, meaning the valuing and analysis of both male and female perspectives and qualities, into functional conversations like the budget to advocate for renewed attention to the equitable appointment of professionals at the Court as envisioned in the Rome Statute.
This is not to say, however, that the work is done. Many delegates have emphasized that we must move beyond gender mainstreaming and the recognition of sexual and gender-based crimes. The Court still fails to undertake “the bold judging” required to challenge ingrained assumptions about the inherently gendered nature of many crimes under its jurisdiction. Additionally, the conversations undertaken by the Court on gender quotas raises questions as to why such fundamental guarantees for all genders within the Rome Statute still require justification. It is clearly a time for great change. There are many opportunities for meaningful reform to dispel the systemic failures of international criminal law and its implications for both women and men.
Louise Chappell, an internationally-renowned expert on gender and the International Criminal Court, notes in her book, which notably launched this week at the 14th ASP, “the Court’s poor record in prosecuting sexual and gender-based crimes reflects continuing legacies and silences of international law and that the Court’s mixed record on gender justice is a risk to its ongoing legitimacy.” The risk noted by Ms. Chappell is one that is being mitigated by the very undertakings we are seeing at this 14th ASP.
*All quotes referencing Ms Louise Chappell’s book, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy, or her remarks made at her book launch.
Day 6 – Guled Ibrahim, Benjamin B. Ferencz Fellow in Human Rights and Law
Today was the 6th day of the Assembly of States Parties conference in The Hague. Unlike the previous days, today was a lot quieter.
As usual, the day started with side events. Today there were three events from 09.00-10.00: NGO Strategy Meeting; Why We Monitor: Engagement, Advocacy and Accountability (co-hosted by RNW Media and OSJI); and Towards the activation of the Kampala Amendments on the crime of aggression (hosted by Liechtenstein).
10.00-11.00 Plenary – Progress report by the Coordinators – Reserved 11.00-12.30 Informal consultations on the omnibus resolution 12:30-13:00 Reserved
13.00-15.00 Complementarity: The situation relating to international crimes and sexual violence in Colombia (co-hosted by the Lawyers without Borders, the Working Group to monitor compliance with Order 092 of 2008 and Order 009 of 2015 of the Constitutional Court of Colombia & CICC); Performance Indicators for the ICC (hosted by the United Kingdom and OSJI); Ecocide law: timely and necessary (hosted by Greenpeace Switzerland); and Cooperation (hosted by Kenya)
13.15-14.45 International Nuremberg Principles Academy (hosted by Germany); Visit to the ICC’s permanent premises.
The afternoon plenary with the President of the ICC and the Chief Prosecutor regarding the reorganization and coordination among the three Court organs was impressive and showed that the President, Chief Prosecutor, and Registrar have done serious work in these areas, particularly in cutting costs to run a more efficient and cooperative Court. The States Parties listening to the session understood why a budget increase is necessary and warranted and the States Parties responses seemed positive.
On Monday, both Kenya and South Africa took to the floor to raise their concerns and complaints with the Assembly.
Kenya asked for an interpretation, or a reaffirmation, that Rule 68 is not retroactive. Rule 68 provides for admission of prior recorded testimony. The issue of retroactivity is
presently under consideration by the Appeals Chamber in the context of recanted testimony by witnesses in the Ruto & Sang case. In the plenary, States Parties raised serious concerns about the independence of the Court if the ASP made a statement on retroactivity since the matter is under consideration by the Court. There were many speakers on the independence issue, including Slovenia, Colombia, Australia, and Canada.
Furthermore, South Africa succeeded in placing on the agenda issues related to Articles 97 and 98. They requested a clarification of the consultative process under Article 97 and wanted an expert panel to look at the relationship of Article 98 with Article 27. In particular, South Africa wanted consideration of whether the immunity obligation under customary international law for a head of state prevailed over a State Party’s Rome Statute obligation to arrest when the head of state is from a non-State Party. South Africa was one of the first speakers in the first plenary session raising these issues and clearly referencing the situation of Sudan’s President Al-Bashir, for whom there is an arrest warrant for genocide, coming to South Africa.
Most of Tuesday was closed meetings for States Parties negotiating multiple issues including those raised by Kenya and South Africa. Kenya’s delegation were present at all events, including the many side events hosted by NGOs. It was clear that Kenya wanted to be present for anything that arose in the sessions.
Clearly, the Kenya actions were the most disruptive and potentially the most damaging to the Court. However, on many levels, the representatives of the States Parties reaffirmed their strong commitment to the Court and to its effectiveness.
Day 7 – Michelle Johnson, Benjamin B. Ferencz Fellow in Human Rights and Law
On day seven of the International Criminal Court’s Assembly of States Parties, the Court Registrar, Herman von Hebel (The Netherlands) met with members of nongovernmental organizations (NGOs) to discuss his office’s work. The revision of the Registry process started two years ago and the implementation begins next year. Von Hebel focused on the
negative implications of the Court’s new budget, including a 20-25% reduction in the workforce and an increased concern for the effectiveness of field offices.
Next, the Working Group on the Budget met to share the draft resolution which was accepted by State Parties. The negotiated resolution provides a 7.1% increase in the Court’s budget for 2016, which many State Parties feel is not enough to permit the Court to fulfill all of its mandates. Due to the lack of funding for 2016, the Court will be unable to fund additional activities, and this will result in halting investigations in Cote d’Ivoire and Libya. The negotiated resolution is now pending adoption by the Assembly.
Capping off the day was an event on preliminary examinations by the Office of the Prosecutor. The Rome Statute provides the Office of the Prosecutor with three distinct roles: preliminary examinations, investigations, and prosecutions. Preliminary examinations are the least understood part of the Office’s work and the earliest stage of proceedings at the Court. The Rome Statute provides far less details on preliminary examinations than it does for investigations and prosecutions.
During 2015, the Office completed two preliminary examinations, in Honduras and Georgia, and opened two new preliminary examinations in Ukraine and Palestine. Work continues in five preliminary examinations, all of which are in different stages. The Iraq/UK conflict is currently in Phase II. Afghanistan, Colombia, Guinea, and Nigeria are situations under Phase III, admissibility stage.
The Office of the Prosecutor representative described the preliminary examination phase as collection of information, not investigation or evidence collection. The function of preliminary examinations is to collect information regarding alleged crimes which are included in the Rome Statute. The Office relies on public sources, government information, and collaborations with NGOs in the field to gather information. The amount and types of information collected varies from one situation to another. Since the collected information is collected from open sources, the credibility and reliability of information is important to consider.
It is important to note that victim protection and intermediaries’ roles are limited in the preliminary investigation stage. The Office of the Prosecutor is not seeking witnesses at this stage. Since a case does not officially exist in this preliminary examination phase, the obligations of the Court are limited. The Office relies on NGOs to manage victim expectations. While many view this as a concern, such as in the case of Georgia, the preliminary investigation lasted seven years. During this time, the victims of this atrocity are unable to receive reparations or victim/witness protection from the ICC. In response to this criticism, the Office of the Prosecutor reminds individuals that the ICC is a court of last resort. The foundation of the Court is complementarity to a State’s national system; the Court is unable to intervene until a case is clearly established. The Office needs a build a solid foundation of admissibility, which takes time.
For additional information regarding the preliminary investigations in 2015, the Office of the Prosecutor publishes an annual Report on Preliminary Examination Activities. The report can be viewed at https://www.icc-cpi.int/iccdocs/otp/OTP-PE-rep-2015-Eng.pdf.