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ASP 14: ICC independence under threat at annual assembly
27، Nov 2015

ICC_at_14th_assemblyA political campaign at the annual session of the International Criminal Court’s (ICC) governing body to influence the ongoing trial of Kenya’s deputy president sets a dangerous precedent for the Court’s independence, the Coalition for the ICC said today.

The 14th Assembly of States Parties (ASP) to the Rome Statute concluded in The Hague yesterday with governments agreeing to include in the Assembly’s final report an interpretation of an ICC rule on the use of pre-recorded witness testimony currently under appeal in the trial of Deputy Kenyan President William Ruto. The inclusion of the requested Kenyan language in the final report holds no obligations for states or the ICC. It remains for ICC appeals judges to decide on the application of Rule 68.

“The political campaign that we have witnessed to influence the ongoing trial of Kenya’s deputy president is deeply worrying for the ICC’s ability to deliver fair and independent justice,” said William R. Pace, convenor of the Coalition for the ICC. “Using unfounded accusations of an anti-Africa bias at the ICC and threats to withdraw from the Rome Statute, the Kenyan government has sought to gain concessions from this Assembly to put pressure on the decision-making of independent ICC judges. While we recognize that many states responded to the call of civil society to defend the independence and integrity of the ICC, and we remain disappointed that the Assembly bowed to political pressure in officially referencing Rule 68 while we await a judicial ruling on its use,” Pace continued.“The events of this week show a weakness not of the ICC but of this Assembly, and set a dangerous precedent.”

The assembly agreed the ICC’s budget and discussed cooperation between states and the ICC, the efficiency and effectiveness of ICC proceedings, strengthening ICC field presence, and national prosecutions, including of sexual and gender based crimes.

“The ASP is the place where ICC member states can and should come to discuss means to strengthen the ICC system. However, the time, energy and resources that governments have had to expend has come at the expense of progress on a range of pressing issues to make international justice more effective and speed up the delivery of justice for victims of grave crimes,” Pace added. “The leaders of the delegations that adopted the Rome Statute in 1998 would be ashamed of the governments’ delegates at this Assembly that threatened, in some instances to undermine the ICC through financial strangulation, and in others threatening to violate fundamental principles of the Rome Statute through political interference with ongoing prosecutorial and judicial proceedings.”

Kenya campaign on Rule 68

In 2015, the ICC prosecutor used an amendment to Rule 68 of the ICC’s Rule of Procedure and Evidence to present pre-recorded witness testimony in the trial. Ruto’s defense has challenged the use of the rule, arguing that governments had agreed when adopting the amendment at the ASP in 2012 that it could not be used retroactively and thus to cases that already begun.

Ruto is accused, alongside broadcaster Joshua Sang, of orchestrating crimes against humanity in Kenya’s 2010-11 post-election violence. The trial began in 2013, but several prosecution witnesses have recanted their testimony. The ICC prosecutor alleges they were pressured to withdraw. The witnesses have been termed hostile by ICC judges. The prosecutor has nevertheless sought to have their original testimonies accepted as evidence.

As ASP 14 was beginning, governments agreed at the last minute to debate a request by Kenya to have the Assembly affirm that when it amended Rule 68, the amendment was not meant to be used in ongoing cases. Following the debate, negotiations continued throughout the eight days of the Assembly session on whether to include the Kenyan proposal in the catch-all omnibus resolution that provides guidance on strengthening the ICC and ASP. Civil society organizations had called on governments to reject the Kenyan request, saying it would infringe on the ICC’s judicial independence. After the debate took place, states were urged to ensure that there would be no reference to the interpretation of the amended Rule 68 in any of the formal resolutions adopted at the end of the Assembly. On the basis that doing so would amount to political interference in a matter being litigated in an ongoing ICC trial.

The Assembly finally decided that it would include language on the non-retroactive use of Rule 68 in the final report summarizing discussions of the Assembly, but not in the omnibus resolution.

“Once again, the Assembly of States Parties has relented to the pressure of getting Kenya’s cases before the ICC tried in the Assembly rather than in court. The first time that the Assembly surrendered was in 2013, when it went out of its way to refashion the rules on presence at trial before the court, in a manner that suited the accused’s interests,” said George Kegoro, executive director of the Kenya Human Rights Commission. “The consequence of that previous surrender is that, because he is powerful, William Ruto is allowed to stay away from his trial while his co-accused, Joshua Sang, must be present in court during the trial. We have quickly become numbed to this duality of practice, which negates the principle of equality of all persons before the law, a key tenet of the Rome Statute.”

“The Assembly has thus created two tracks of practice. The first is a track involving cases against weak defendants, which continue to be handled by the judicial organs of the Rome Statute and, the second are the cases against politically-strong defendants, which are now tried in the political organs of the Rome Statute, rather than in court. In the face of a determined state, which has taken elaborate, and highly successful domestic and international measures to stifle the possibility of a fair trial of the cases, the Assembly has displayed weakness and, ultimately capitulated. This is a capitulation to impunity, and there is no longer a zone of principled engagement on international justice under the Rome Statute,” Kegoro added. “By yielding to Kenya’s unreasonable demands, the Assembly has surrendered the mandate of the ICC of bringing accountability against persons bearing the greatest responsibility for the atrocity crimes under the Rome Statute. The ICC will now become a court of low-level perpetrators and is not worth maintaining in this form. Having been ignored by the Kenyan government up to this point, the victims of Kenya’s post-election violence have now been irreversibly betrayed by the Assembly.”

“We came here to give our clear views that the integrity and independence of the Court should be paramount. This is not the first time Kenya brings controversial issues at the very last minute before the ASP. Such behavior is deeply disrespectful towards the other states parties and Kenya’s own obligations under the Rome Statute. While we recognize that the ASP is a forum for states to discuss matters of critical importance regarding the ICC, the motivation behind Kenya’s supplementary agendas is purely influenced by Kenyan domestic politics and do not aim at improving the Rome Statute system,” said Gladwell Otieno, executive director, AfriCOG, representing Kenyans for Peace with Truth and Justice. “We further regret the lack of clarity and commitment shown by the President of the ASP and the Bureau on discussions that should have never happened in the first place. Whether Kenya achieves what it wants or not, the damage has already been done as it should be certain that some matters should never be discussed.

ICC Prosecutor Fatou Bensouda this week issued a statement stating rejecting accusations of an anti-Africa bias against the Court that “obscure the truth and distort the public understanding of what the ICC is and what it does.” At the Assembly’s final plenary discussion, ASP President Sidiki Kaba called for unity among ICC member states at this critical juncture, emphasizing that many African governments support accountability for grave crimes be it through the ICC or national courts.

The Assembly also agreed to include reference to a South African request to have a discussion on the interpretation of Rome Statute provisions excluding immunity and related state cooperation with the Court.

Strengthening ICC field presence

“In these negotiations, we cannot lose sight of the fundamental purpose of the ICC itself: to fight against impunity for the most serious crimes. Strengthening outreach activities and effectively implementing victims’ rights in the proceedings are key to ensuring that the Court is meaningful to those most concerned,” said Shawan Jabarin, FIDH vice-president and Al-Haq general director.

ICC budget 2016
The Assembly set the ICC’s budget for 2016 at €139,590,600. This is an increase of €8,925,000 (6.83%) on the Court’s 2015 budget, but approximately €370,000 less than the budget recommended by the ASP’s subsidiary Committee on Budget and Finance. The Court had sought an increase of €22.66 million (17.3%) to cover additional investigations, prosecutions and associated costs. The ICC prosecutor has indicated that budgetary constraints were impacting her Office’s ability to investigate the commission of grave crimes in several situations, including in Côte d’Ivoire, Libya, among others.

“ICC members have approved a budget far below the level requested by the court. We are deeply concerned that a lack of resources will slow down much-needed investigations, delaying justice for victims,” said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. “The court should make every effort to ensure its efficient use of resources, but member countries need to reject false economies. They should work instead to find real solutions that will ensure the court has the resources it needs to meet a rising workload, in what is an increasingly turbulent world.”

Trust Fund For Victims board elections

Mama Koité Doumbia was elected to the board of the Trust Fund for Victims, also established under the Rome Statute, with 69 of the 77 votes. A strong human rights advocate, Mama Koité is currently the president of the Malian Coalition for the ICC and is the Malian inspector for youth and sports and the president of the Mali Women’s platform. One more seat remains vacant on the TFV Board of Directors for the Eastern European region.

Deletion of Rome Statute article 124 on war crimes opt-out

In a historic move anticipated and long-called for by civil society, states also agreed to delete article 124 from the Rome Statute. According to article 124, a state, on becoming a state party to the Rome Statute, may declare that for a period of seven years after ratification, it does not accept the Court’s jurisdiction with regard to war crimes allegedly committed by that state’s nationals or on its territory.

“The deletion of article 124 from the Rome Statute is a positive development for international justice as it was inconsistent with the object and purpose of the Rome Statute “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,” said Jonathan O’Donohue, legal adviser for Amnesty International. “The Rome Statute must not enable opt outs that permit impunity for the most serious crimes of concern to the international community.”

The role of civil society

The Assembly and the ASP president also recognized the invaluable assistance that has been provided by civil society to the Court. Civil society attended ASP 14 in large numbers, playing an active role in defending the independence of the ICC holding numerous events to keep a range of issues on the agenda, including victims’ rights, cooperation, universal ICC membership, national prosecutions, sexual and gender-based violence, the effective administration of international justice. They also highlighted urged accountability for grave crimes occurring situations around the world, including in Syria, Colombia, Burundi, among others.

“Civil society organizations engaged with affected communities should be protected from any harassment or threats, during the ASP sessions and in their home countries,” said Shawan Jabarin, FIDH vice-president and Al-Haq general director.

Efficiency and effectiveness of international justice

The efficiency and effectiveness of ICC proceedings were also debated by governments and civil society in the Assembly plenary and in several side events.

“Further debates on effectiveness and efficiency of the Court’s proceedings should not confine considerations to amendment proposals and financial savings. They must rather take into account the global aims of the Rome Statute and the constituencies that the ICC is meant to serve. Safeguards to fair trial rights must be ensured,” said Mariana Pena, legal officer with the Open Society Justice Initiative. “In addition, making proceedings relevant to victims and affected communities must be a key consideration. It must also be recalled that for the ICC and the Rome Statute system to operate effectively, States Parties must provide sufficient funding to the Court, defend and respect its judicial independence, execute arrest warrants, cooperate with the ICC to protect its witnesses, and prosecute serious crimes under ICC jurisdiction.”

The Assembly also expressed deep concern at the ongoing lack of support by the UN Security Council for investigations and prosecutions arising from referrals to the Court, and called for greater political and financial support from the Council.

National prosecutions, including of sexual and gender based violence Governments debated complementarity, the principle under which national prosecutions take precedence in the ICC system, with a focus on sexual and gender based crimes.

“Implementation of the Rome Statute crimes into national law lies at the heart of the principle of complementarity, and is essential to any hope for deterring the commission of future crimes. In a great number of situations where the Court exercises or could exercise its jurisdiction, the lack of relevant or comprehensive legislation causes genuine inability to prosecute heinous crimes,” said Michelle Reyes-Milk, Americas coordinator at the Coalition for the ICC. “The promise of the Rome Statute will only be fully realized if more robust national measures are undertaken, including with regards to sexual and gender-based crimes.”

Read the closing statement of the Coalition for the International Criminal Court to the final session of ASP 14.