When initially pressed to open an

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1 EQ: Equality of Arms Review A publication of the International Bar Association s ICC Monitoring and Outreach Programme Issue 3 JULY 2009 The ICC and the Gaza conflict Mark Ellis* Supported by the John D and Catherine T MacArthur Foundation International Bar Association s ICC Monitoring and Outreach Programme Peace Palace Carnegieplein 2, 2517 KJ, The Hague, The Netherlands Tel: /2827 International Bar Association 10th Floor 1 Stephen Street London W1T 1AT United Kingdom Tel: +44 (0) Fax: +44 (0) When initially pressed to open an investigation into the alleged war crimes committed in Gaza, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) correctly declined. However, in response to a request by the Palestinian National Authority, the OTP changed its position and announced that it will carefully examine all relevant issues including [the scope of the Court s] jurisdiction. 1 More than 260 individuals and organisations have made similar demands for the ICC to launch an investigation into alleged war crimes committed by Israeli troops during the present conflict. This policy change by the OTP is troubling. Most unsettling is the fact that it raises unrealistic expectations that the ICC has jurisdiction to investigate alleged crimes committed in Gaza. It does not. A jurisdictional issue The Rome Statute, the textual source and enabling treaty of the ICC, is unequivocal regarding the Court s jurisdiction to investigate breaches of international criminal law. Unless the United Nations (UN) Security Council refers a situation to the Prosecution, which is unlikely in the Gaza situation because of the veto power held by the United States, the Court has jurisdiction only over a state that is a party to the Rome Statute. Thus, the crimes in question must have occurred on the territory of the state, or by a person who is a national of the state. This policy change by the OTP is troubling. Most unsettling is the fact that it raises unrealistic expectations that the ICC has jurisdiction to investigate alleged crimes committed in Gaza. It does not. Continued on page 3

2 E Q E D I T O R I A L Dear Colleagues, The past few months have seen exciting developments at the International Criminal Court (ICC), as the Court continues to fulfil its judicial mandate. The first trial against Thomas Lubanga is well underway, the second trial against Germain Katanga and Mathieu Ngudjolo Chui is scheduled to start in September, and Abu Garda, a suspect in the Darfur, Sudan situation, has voluntarily surrendered a first for the Court. However, there are still external and institutional hurdles to overcome. For example, the issue of the permanent assignment of judges from the Pre-Trial and Trial Divisions to the Appeals Division is cause for concern. Additionally, there is still much work to be done to address some of the remaining misperceptions about the ICC s role in Africa. With the imminence of the 2010 Review Conference, the Court, states parties, civil society and other key stakeholders must begin to look closely at the ICC s legislative framework in order to chart the best course forward for the Court. Welcome to EQ This edition of EQ features an interesting compilation of opinions and perspectives from a diverse range of individuals, including Ambassador Mirjam Blaak, Deputy Chief of Missions to the Ugandan Embassy, who shares her views on the upcoming Review Conference in Uganda; William Pace, Convenor of the Coalition for the International Criminal Court, who gives insight into the dynamic relationship between the ICC and civil society; and Xavier- Jean Keita, Principal Counsel of the Office of Public Counsel for Defence at the ICC, who emphasises the importance of safeguarding defence rights. The IBA is also grateful to former ICC President, Judge Philippe Kirsch, for sharing his perspective on the ICC and his vision for the Court s continued success. We hope that this edition of EQ will stimulate further thought and discussion on the work and place of the ICC in the international community. Enjoy EQ. Mark Ellis IBA Executive Director Inside EQ EQ Opinion The ICC and the Gaza Conflict Mark Ellis 1 EQ Editorial Welcome to EQ 2 EQ Opinion An error of judgment? Justice Richard Goldstone 5 EQ Perspective ICC s first voluntary surrender a symbolic victory in a difficult situation 8 EQ Highlights Interview with Judge Philippe Kirsch, former President of the International Criminal Court 11 EQ Contributions Safeguarding defence rights at the ICC Xavier-Jean Keïta 16 Parents or partners: evaluating the relationship between NGOs and the ICC, William Pace 18 From the Seven Hills of Rome to the Seven Hills of Kampala : preparing for the 2010 ICC Review Conference Ambassador Mirjam Blaak 20 EQ News Briefs Pre-Trial Chamber confirms some charges against Jean-Pierre Bemba 22 Richard Goldstone receives MacArthur Award for International Justice 22 ICC Presidency hands down decision on family visits 23 African civil society rallies around the ICC 23 ICC Seventh Seminar of Counsel 24 EQ Events and Publications Launch of sixth IBA/ICC Monitoring Report 25 Seminar Series: Bringing the International Criminal Court to South African legal professionals 25 Conference on the International Criminal Courts: Prospects for International Criminal Justice in Mozambique 25 EQ Publications 26 About the IBA 27 2 Published by the IBA EQ: EQuality of Arms Review. Issue 3

3 Ruins of Dar al-fadila Association for Orphans in Rafah, Gaza, destroyed during the Gaza conflict, 12 January ISM Palestine Continued from cover... E Q O P I N I O N The second problem, and by far the most perplexing, is whether Palestine can be recognised as a state within the meaning of the Rome Statute Israel falls outside the Court s jurisdiction because it has not ratified the Rome Statute. More problematic is the status of the West Bank and Gaza. For the OTP to even consider jurisdiction over the Gaza conflict, it would have to invalidate the current legal status of the territories and effectively recognise the Palestinian state. There is no legal basis for such a decision. In its request for an investigation, the Palestinian National Authority is relying on an obscure but potentially forceful provision in the Rome Statute. Article 12(3) of the Statute provides, in part, that a state, even if it is not a party to the Rome Statute, may by declaration lodged with the [Court s] Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. There are two interpretive problems with this in relation to Gaza. The first is the political and legal uncertainty of suggesting that the Fatah faction of the Palestinian National Authority, which controls the West Bank, can speak for the interest of the Hamas controlled Gaza strip. The second problem, and by far the most perplexing, is whether Palestine can be recognised as a state within the meaning of the Rome Statute. Not a state The key word in Article 12(3) is state. Only a state may accept, by declaration, the Court s jurisdiction. The Palestinian territories do not currently constitute a state under international law. Moreover, the 1998 Rome diplomatic conference, which established the ICC, invited only UN Member States to participate then as signatories to the Statute. Palestine was given observer status, consistent with its observer status at the UN General Assembly; it was not designated a potential signatory. The OTP should immediately clarify that the ICC does not have jurisdiction over crimes committed in the Gaza conflict. The Rome Statute was deliberately crafted to give the Court a specified and limited jurisdiction. However restricted, it is imperative that the ICC stay within its jurisdictional boundaries. If the Court were to expand these boundaries unilaterally, it would be a paradigm shift in international law that would be seen as political and reckless. Fact-finding commission However, there is a viable legal option in Gaza. International law requires that both Israel and Hamas investigate and hold accountable any soldier or commander who has committed Published by the IBA EQ: EQuality of Arms Review. Issue 3 3

4 E Q O P I N I O N The OTP should immediately clarify that the ICC does not have jurisdiction over crimes committed in the Gaza conflict. The Rome Statute was deliberately crafted to give the Court a specified and limited jurisdiction. However restricted, it is imperative that the ICC stay within its jurisdictional boundaries or ordered the commission of war crimes. The UN has created a fact-finding commission led by Justice Richard Goldstone that is mandated to investigate and report on any violations of international humanitarian law committed by either party to the current conflict. This is a welcome move that must be fully supported. The commission s findings will provide the basis for exerting pressure on both parties to hold those who committed crimes accountable. International law is very clear regarding accountability. There can be no impunity for grave breaches of international criminal law, and there is no statute of limitations on such crimes. Note * Mark Ellis is Executive Director of the International Bar Association, London. 1 See statement of the OTP on the visit of the Palestinian National Authority Minister of Foreign Affairs, Mr Riad al Malki, and Minister of Justice, Mr Ali Khashan, to the Prosecutor of the ICC (13 February 2009) at D 0 B A D - A F E F 2 / / ICCOTP Palestinerev.pdf. Navanethem Pillay (centre), United Nations High Commissioner for Human Rights, meets with members of the factfinding mission set up by the United Nations Human Rights Council to probe rights violations during the recent conflict in the Gaza Strip. From left to right: Christine Chinkin, Professor of International Law at the London School of Economics and Political Science at the University of London; Richard Goldstone, former prosecutor for International Criminal Tribunals for the former Yugoslavia and Rwanda; Ms. Pillay; Hina Jilani, Advocate of the Supreme Court of Pakistan and former Special Representative of the Secretary-General on Human Rights Defenders; and Desmond Travers, member of the Board of Directors of the Institute for International Criminal Investigations, Geneva, Switzerland, 8 May UN Photo/Patrick Bertschmann 4 Published by the IBA EQ: EQuality of Arms Review. Issue 3

5 An error of judgment? Justice Richard Goldstone* E Q o p i n i o n * Justice Richard Goldstone is the Co-Chair of the IBA Human Rights Institute and former Chief Prosecutor at the ICTY and ICTR. The organisation of the chambers of the International Criminal Court (ICC) is as important as the election of judges who serve at the Court. While the election of ICC judges is an executive function of the Assembly of States Parties (ASP), this is only the first step. Assignments to the respective divisions of the Court are a matter that the judges alone decide. The decision requires sound judgment. Judicial assignments On 11 March 2009, five judges who had been elected to the ICC for a term of nine years by the ASP were sworn in at the seat of the Court. At the 14th plenary meeting held on 13 March 2009, the judges decided on their assignment to the Pre-Trial, Trial and Appeals Divisions of the Court, in accordance with Rule 4 of the Rules of Procedure and Evidence. The plenary made the decision to permanently assign Judges Akua Kuenyehia and Anita Ušacka both of whom previously adjudicated during the pre-trial phase of proceedings in the cases arising from the situations in the Democratic Republic of Congo (DRC) and Darfur, Sudan to the Appeals Chamber. The plenary also permanently reassigned Judge Daniel David Ntanda Nsereko to the Appeals Chamber. Judge Nsereko had been temporarily reassigned from the Trial Division to the Appeals Chamber in 2008 to replace Judge Navanethem Pillay (who had resigned). The Bureau of the ASP expressed its concerns to the President of the Court regarding the composition of the Appeals Chamber, suggesting that this eventuality was never intended by the states parties. The judges subsequently convened the 15th plenary meeting, and voted to confirm the assignments. 1 Highly questionable decision While there is no issue concerning the competence of the judges in question, the decision to permanently assign judges from the Pre-Trial and Trial Divisions to the Appeals Division is highly questionable, and arguably in breach of the Rome Statute and legal texts of the Court. Judges are elected to serve for a nine-year term at the Court. Articles 39(3)(b) and 39(4) of the Statute require that Judges assigned to the Appeals Division serve in that division for their entire term of office and only in that division. 2 By contrast, the Statute provides for assignments for a three-year period in the Pre- Trial and Trial Divisions, and implicitly allows for periodic rotation between these divisions. The Rome Statute is noticeably silent as to whether a judge from the Pre-Trial or Trial Divisions can be promoted to the Appeals Division. However, the legislative history of the Court s legal texts makes it clear that the Inaugural ceremony of the Court ICC-CPI/Wim van Cappellen Published by the IBA EQ: EQuality of Arms Review. Issue 3 5

6 E Q o p i n i o n permanent reassignment of judges from the Pre-trial and Trial Divisions to the Appeals Division is not what was envisaged by the Statute s drafters. This is not coincidental. There was sustained opposition from some states to the prospect of judicial rotation between the Trial and Appeals Division, 3 a direct response to the widespread dissatisfaction with the practice of the International Criminal Tribunal for the former Yugoslavia, where judges would regularly rotate between the Trial and Appeals Chambers. 4 One hardly needs to recite the axiom that justice must not only be done, but be seen to be done. Legal and practical difficulties Permanently reassigning judges from the Pre-Trial and Trial Chambers to the Appeals Chamber will create both legal and practical difficulties. For example, having sat on the pretrial phase of cases arising from the DRC and Darfur, Sudan situations (including the case against President Al-Bashir), Judges Kuenyehia and Ušacka must surely recuse themselves from hearing any appeals arising from those cases. In those circumstances two alternative judges must fill their places. While the Presidency is empowered under Regulation 12 of the Regulations of the Court to temporarily attach a judge from either the Pre-Trial or Trial Division to the Appeals Chamber where a member of that Chamber is disqualified or unavailable for a substantial reason, such temporary assignments are designed to ensure administrative efficiency in emergency or unexpected situations, and are meant to be exceptional, not the rule. In this particular context, the selection of replacement judges potentially leaves the Presidency open to accusations of bench stacking that is handpicking particular judges to replace the recused judges and allegations of partiality. Furthermore, the Appeals Chamber may be placed in the unsavoury position of having to rule on a challenge by the parties to its own composition. As the workload of the Court increases, the need to periodically rotate judges to sit on appeals from which Judges Kuenyehia and Ušacka have recused themselves has serious implications for the entire judicial calendar, and is clearly not the best use of the Court s judicial resources. Beyond efficiency, the assignments raise questions concerning the effectiveness of the judicial mechanism for guaranteeing an accused s fundamental right to appeal. 5 While there is no doubt about the competence of the judges of the Pre-Trial or Trial Divisions, nor any suggestion that these divisions should be deemed inferior to the Appeals Division, one might question the desirability of a Pre-Trial or Trial judge sitting in the Appeals Chamber one day, and then potentially having one of their own judgments come before the Appeals Chamber in another matter the next. In the eyes of the defendant, the rulings of the Appeals Chamber may not be viewed as carrying any greater authority than the Pre-Trial or Trial Chamber decision being appealed. 6 Furthermore, where the Appeals Chamber is not fully insulated from the Pre-Trial and Trial Divisions there may be questions raised as to the independence of the Appeals Chamber. 7 One hardly needs to recite the axiom that justice must not only be done, but be seen to be done. Conclusion Appeals Chamber judgments are important in ensuring uniformity and coherence with regard to matters of both substantive and procedural law. 8 The appointment of judges Beyond efficiency, the assignments raise questions concerning the effectiveness of the judicial mechanism for guaranteeing an accused s fundamental right to appeal. 6 Published by the IBA EQ: EQuality of Arms Review. Issue 3

7 While there is no issue concerning the competence of the judges in question, the decision to permanently assign judges from the Pre-Trial and Trial Divisions to the Appeals Division is highly questionable, and arguably in breach of the Rome Statute and legal texts of the Court. E Q o p i n i o n to the Appeals Chamber for their entire term in office provides a level of stability in the composition of the Chamber which creates optimal conditions for the development of consistent jurisprudence from that Chamber. 9 The present state of affairs seriously jeopardises this prospect. The issue of whether Pre-Trial and Trial Division judges may be permanently reassigned to the Appeals Division must be resolved. States parties should consider an amendment to Article 39 of the Statute pursuant to Article 121, either at the next ASP meeting in November, or at the Review Conference next year to fully clarify the issue. In the meantime, the ASP Bureau and Presidency should work towards finding a practical and principled solution. Notes 1 William A Schabas, New Decisions and a Whiff of Crisis at the International Criminal Court (2009) PhD Studies in Human Rights < com/2009/06/new-decisionscand-and-whiff-of-crisis. html> at 30 June William A Schabas, An Introduction to the International Criminal Court (3rd ed, 2007), 346; Jules Deschênes and Christopher Staker, Chambers in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article (2nd ed, 2008) 957, M Cherif Bassiouni (ed), The Legislative History of the International Criminal Court: Volume II An Article-by- Article Evolution of the Statute from (2005), See for example the United Kingdom: Judges who have served in the Appeals Chamber shall not serve in any other Chamber and judges who have served in a Trial Chamber shall not serve in the Appeals Chamber. 4 William A Schabas, An Introduction to the International Criminal Court (3rd ed, 2007), 346; Xavier Tracol, The Appeals Chambers of the International Criminal Tribunals (2001) 12 Criminal Law Forum 137, See for example International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, art 14(5) (entered into force 23 March 1976). 6 John RWD Jones, Composition of the Court in Antonio Cassese, Paola Gaeta and John RDW Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (2002) 235, Salvatore Zappala, Human Rights in International Criminal Proceedings (2003), Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the Criminal Tribunal for Rwanda, UN Doc A/54/634 (1999), [102]. 9 Giuseppe Nesi, The Organs of the International Criminal Court and Their Functions in the Rome Statute: the Assembly of States Parties in Flavia Lattanzi and William A Schabas (eds), Essays on the Rome Statute of the International Criminal Court: Volume I (1999) 233, 293. EQ IQ Committee on Budget and Finance (CBF) comments on composition of Appeals Division The CBF is a subsidiary expert body of the Assembly of States Parties which assists with the complex task of compiling and monitoring the budget of the ICC. The CBF s recent report on the work of its twelfth session included the following comments in relation to the composition of the Appeal Chamber: Contamination of judges The Committee expressed concern with the financial implications that the composition of the Appeals Division could have in terms of the amount of work the two contaminated judges may be able to engage in over the next few years, as well as the impact on any legal officers working with these judges. The Committee requested that a detailed report outlining the scope of the issues, the potential costs for [the Judiciary] and the impact on the establishment of efficiency measures within the Court be provided along with a revised staffing structure prior to its next session. (Report of the Committee on Budget and Finance on the work of its twelfth session, ICC-ASP/8/5 (2009), [ ]). Published by the IBA EQ: EQuality of Arms Review. Issue 3 7

8 E Q P E R S P E C T I V E ICC s first voluntary surrender a symbolic victory in a difficult situation Mr Bahar Idriss Abu Garda (Mr Abu Garda) arrived in The Hague on 18 May 2009 to appear before the International Criminal Court (ICC) on charges of war crimes allegedly committed in Darfur, Sudan. Despite the seriousness of the charges facing him, Mr Abu Garda was not arrested and brought to the ICC; he appeared voluntarily in response to a summons issued by the judges of Pre-Trial Chamber (PTC) I. Mr Abu Garda is the first Sudanese suspect to face proceedings arising from the ICC Prosecutor s investigations in Darfur, Sudan, and it is the first time in the Court s history that a suspect has voluntarily surrendered. Given the strong anti-icc sentiments generated by the arrest warrant issued for Sudanese President Omar Al-Bashir for his alleged role in the Darfur conflict, this is no doubt a significant moment for the Court. The Haskanita attack Mr Abu Garda, the 46 year-old leader of the Sudanese insurgency, the United Resistance Front, is charged with three counts of war crimes allegedly committed during an attack against African Union (AU) peacekeepers stationed at Haskanita in North Darfur, Sudan, on 29 September The attack, which involved some 1,000 rebels armed with antiaircraft guns and rocket propelled grenades, resulted in the deaths of twelve peacekeepers and severely injured eight others. The attackers destroyed the AU peacekeeping mission s communications installations, dormitories and vehicles and appropriated a range of property. ICC Prosecutor Luis Moreno- Ocampo said that by killing peacekeepers, the perpetrators attacked the millions of civilians who the soldiers came to protect Attacking peacekeepers is a serious crime under the [Rome] Statute and shall be prosecuted. 1 The attack was allegedly carried out by splinter forces of the rebel Justice and Equality Movement, under Mr Abu Garda s command, with the cooperation of other armed groups. Based on the evidence produced by the prosecution the PTC found that there were reasonable grounds to believe that Mr Abu Garda is criminally responsible as a coperpetrator under the Rome Statute for the war crimes of violence to life in the form of murder, attacking a peacekeeping mission, and pillaging. Stark contrast The voluntary surrender of Mr Abu Garda is in stark contrast to the antagonistic response from other persons charged in the Darfur situation. On 2 May 2007, the PTC issued arrest warrants for Ahmad Muhammad Harun and Ali Kushayb, and on 4 March 2009, for the Sudanese President Omar Hassan Ahmad Al-Bashir, for war crimes and crimes against humanity. The Sudanese Government has openly rejected the Court s jurisdiction and refused to cooperate with investigations. But Mr Abu Garda s voluntary surrender is not without conditions. Though not in custody, Mr Abu Garda cannot leave the location assigned to him by the Court without its permission. He is also prohibited from Bahar Idriss Abu Garda ICC-CPI 8 Published by the IBA EQ: EQuality of Arms Review. Issue 3

9 E Q P E R S P E C T I V E African Union Peacekeepers on patrol in South Darfur Derk Segaar/IRIN discussing issues related to the charges and evidence and from making political statements while within the Court s premises or the Courtassigned location. Show of good faith or political motivations Mr Abu Garda s cooperation was welcomed by the Court as sending a very good message. 2 The Court hopes that this demonstration of good faith and confidence in the ICC will encourage other suspects currently at large to come forward. The New York Times reports a member of Mr Abu Garda s delegation as stating, We want to set an example to the Sudanese leadership and others accused in Sudan we believe the Court is independent and impartial. Let the others also come to the Court. 3 However, it has been suggested that Mr Abu Garda s motivations for coming to The Hague have less to do with supporting international justice, and more to do with promoting his own political agenda. 4 By breaking the mould of Sudanese hostility towards the Court, Mr Abu Garda has not only managed to distinguish himself from President Al-Bashir and his political opponents in the Sudanese Government, but has captured international attention for himself and his cause in Darfur. From here, we call the international community to put pressure on the government to bring back aid organisations to Darfur. If that doesn t happen, real genocide will happen in Darfur because of famine, he said in an interview following the hearing. 5 Regardless of motivations, Mr Abu Garda s voluntary appearance is an important symbolic victory for the ICC, following the controversy sparked by the arrest warrant for President Al- Bashir and accusations of anti-africa bias in the Court s operations. The case against Mr Abu Garda suggests that the prosecution is not only targeted at the Sudanese Government and Janjaweed militia, but also the rebel leaders. As Dismas Nkunda, Chair of Darfur Consortium, said: Nobody will be able to hide behind impunity, whatever their role in the conflict, either rebels or those in government. 6 Furthermore, the trial will fulfil the AU s demands that the attackers be brought to justice. Precedent for future cases The Abu Garda case is also an encouraging example of international cooperation with the ICC, as a number of African and European nations, including the Netherlands, Chad, Senegal, Nigeria, Mali and Gambia, worked with the Prosecutor and Registry to secure Mr Abu Garda s presence in The Hague. Such collaboration is a welcome manifestation of the international cooperation called for in United Nations Security Council Resolution 1593, which referred the situation in Darfur to the Court. It is unclear, and perhaps unlikely, that the voluntary surrender of Mr Abu Garda will set a precedent for future cases before the ICC. However, such cooperation is always welcome and comes at a critical time for the Court as it seeks to reshape its relationship with Africa. Published by the IBA EQ: EQuality of Arms Review. Issue 3 9

10 E Q P E R S P E C T I V E Karim Khan, Counsel for Bahar Idriss Abu Garda CICC By breaking the mould of Sudanese hostility towards the Court, Abu Garda has not only managed to distinguish himself from President Al-Bashir and his political opponents in the Sudanese Government, but has captured international attention for himself and his cause in Darfur. In some ways it is clear that the case will be very different from others currently before the Court. Counsel for Mr Abu Garda, Mr Karim Khan, has already indicated that his client will waive his right to attend any status conference before the confirmation of charges hearing in October though it is too early to say whether he will attend the hearing itself or not. Though significant, Mr Abu Garda s voluntary surrender is only the beginning. Time will tell whether the victory is symbolic or pyrrhic. Notes 1 ICC Office of the Prosecutor, Prosecutor: The attack on African Union peacekeepers in Haskanita was an attack on millions of civilians they had come to protect; we will prosecute those allegedly responsible (Press Release, 17 May 2009, 1). 2 Transcript of Proceeding, The Prosecutor v Bahr Idriss Abu Garda (International Criminal Court Pre-Trial Chamber I, Judge Tarfusser, 18 May 2009, ICC-02/05-02/09-T-4- ENG ET WT NB PT). 3 Marlise Simons, Darfurian Rebel Commander to Face War Crimes Charges, The New York Times, 18 May 2009, 5. 4 Stéphanie Plasse, A Sudanese Rebel Leader Manipulates the ICC (2009), Afrik.com < article15707.html> at 2 June Katy Glassborrow, ICC Suspect Rewrites Tired Old Script (2009) Institute for War and Peace Reporting < at 2 June Coalition for the International Criminal Court, ICC Issues Summons To Appear for Rebel Leader in Third Darfur Case Citing Crimes Against AU Peacekeepers (Press Release, 17 May 2009, 2). 10 Published by the IBA EQ: EQuality of Arms Review. Issue 3

11 Interview with Judge Philippe Kirsch Former President of the International Criminal Court E Q H I G H L I G H T S Background In June 2009 Lorraine Smith, IBA Programme Manager (ICC) spoke with former ICC President Philippe Kirsch about his perceptions of the ICC s achievements and challenges. Judge Philippe Kirsch, former ICC President 1. During your tenure as the first President of the International Criminal Court (ICC) what would you say were the ICC s main achievements and challenges? In the wake of unprecedented momentum of support for international justice, the 60 ratifications necessary for the entry into force of the ICC Statute came much earlier than anticipated. The number of states parties now amounts to 108, a significant development considering the complexity of the system and the demands it places on the states involved. The Court had to be built quickly, administratively and judicially in order to respond effectively to the referral of four situations in rapid succession. It has become fully operational, and most importantly, it has proved itself to be a purely judicial body. Additionally, the ICC has had a demonstrable preventive effect in certain areas. The Court still faces a number of challenges, predominantly but not exclusively external. The first is the need to increase understanding of the Court. The Court is relatively better understood now than before, but ignorance has always been and continues to be its worst enemy. A second challenge is that the Court operates in areas of continuing conflicts, creating a high number of practical and political problems. Third, the Court must receive adequate support from states parties. Granted, support for the Court has been vigorously reiterated at the Assembly of States Parties (ASP) and United Nations (UN) and been given tangible form in various ways. Nevertheless, support and cooperation need to be further developed and coordinated, as experience grows. For example, many of the arrest warrants issued remain unexecuted. Not enough agreements on enforcement of sentences and relocation of victims and witnesses have been concluded. What is required generally is greater coherence in the commitments made by states and consistency in fulfilling them. Fourth, the Court should achieve as close to universal acceptance as possible. This is the natural consequence of its creation by treaty and is necessary in practice given statutory constraints on the exercise of its jurisdiction. Finally, internal unity and cohesion between the organs of the Court clearly need strengthening, without compromising the independence of any particular organ. 2. Before becoming President of the ICC you were the Chair of the Committee of the Whole at the Rome Conference. If you were able to go back to the conference now, which provision(s) in the Rome Statute would you like to change and why? The Court is still a very young institution, which has not even achieved a full cycle of proceedings. In the circumstances, it is too early to make a proper assessment of whether the basic issues of the constitution of the Court require revision. There is no evidence to date that the jurisdictional system established under the Rome Statute is not working properly. It would be a mistake at this stage to seek either to broaden the jurisdiction (such as universal Published by the IBA EQ: EQuality of Arms Review. Issue 3 11

12 E Q H I G H L I G H T S jurisdiction) or to make it more restrictive. As for the crimes enunciated in the Statute, these are all based on well established international law. The fact that the detailed requirements for each crime contained in the Elements of Crimes were adopted by consensus by the Preparatory Commission, which followed the Rome conference, clearly shows that the crimes themselves are generally accepted by states parties. It has been suggested that it may be appropriate to extend the jurisdiction of the Court to cover additional international crimes, such as terrorism, drug trafficking, piracy, use of certain weapons and so on; however, this is strictly an issue to be determined by the states parties. Another matter is the actual functioning of the Court. In my opinion, the Court system is too rigid and over regulated. It would for example be desirable in due course to review the alignment between the provisions of the Rome Statute and the Rules of Procedure and Evidence (RPE). However, again it is too early to comment on the full scope of such issues as the Court is yet to complete a full cycle, and even after that it will take time for the judges and the Court to digest the lessons from the court room. 3. What are your views on the present amendment mechanism for the RPE? Do you think it unnecessarily limits judicial freedom? In my opinion, the RPE are overly specific in parts, and there should be provision for the Rules to be more efficiently amended. The requirement that amendments be adopted by a two-thirds majority of states parties is unduly cumbersome, and slows the natural and necessary development of the Court s procedures. In drafting the RPE, it is understandable that states parties were seeking certainty in the way the Court would operate. However, I believe the prescriptive and extremely detailed nature of the RPE and awkward amendment mechanisms adopted went too far. In any other international court, the development and amendments of the rules of procedure were left to judges. It is in everyone s interests the Court, the participants, and the states parties that a more efficient mechanism for amending the RPE be adopted. There are different ways of approaching this issue. One possibility could be a variation of the amendment procedure applied to the Regulations of the Court, whereby the judges may adopt a new regulation, which is then circulated to states parties. If there is no objection within six months, the amended provision enters into force. A similar approach for the RPE, perhaps allowing for a longer reaction time, seems sensible to me, as it allows the states parties an opportunity to respond to proposed amendments, but is sufficiently flexible to allow the Court to proceed expeditiously and efficiently. The provision which already exists in the Statute authorising a short-cut for amending the Rules in emergency situations is a beginning but is in my view too restrictive. A similar observation applies to the Statute itself. Again, states were understandably careful in Rome to avoid creating an unstable system through an excessively flexible amendment process, but this led to overabundance of caution which extended to technical areas. To give you a simple example linked to the issue we just discussed, any modification to the amendment process of the RPE requires an amendment to the Statute itself, which can only enter into force if it is ratified by seveneighths of the states parties. This is a recipe for very slow progress indeed. 4. ICC Pre-Trial proceedings are often lengthy with very detailed filings and decisions. Procedural issues dealt with at that stage are often re-litigated before the Trial Chambers. Do you think the ICC Pre-Trial Chambers (PTCs) are functioning as envisioned? The PTC was created for two principal reasons: first, to maintain oversight of the Prosecutor in his investigations; and second to consider issues which though extraneous to the trial itself, must be dealt with, such as issues of jurisdiction and admissibility. The PTC was given additional functions such as the issuance of arrest warrants, the protection of victims and witnesses, and the confirmation of charges. Initially pre-trial proceedings in some ways evolved into a mini-trial. This is not to criticise the PTC, as it is simply a consequence of the very complicated issues at hand and the fact that this is a new process, including entirely new elements such as the participation of victims. The pre-trial process has advanced through experience and become more refined over time. However similar issues still arise at both the pre-trial and trial phase, such as disclosure and victims participation, which are not always resolved with consistency. In my opinion, the system has not functioned 12 Published by the IBA EQ: EQuality of Arms Review. Issue 3

13 as efficiently as it could. It may not require any textual changes, but there are issues which could be looked at. It may be appropriate to consider making the pre-trial phase, which currently entails considerable delays for the defendant, shorter and more limited in scope. For example, it may be worth considering the question of whether the threshold of evidence applied by the PTC is set at the right level. Is it too high, or too low, and how should it relate to the threshold at the trial stage? 5. One important principle on which the Rome Statute is built is that of complementarity. What role, if any, should the ICC play in helping to strengthen national systems to allow them to prosecute complex Rome Statute crimes? The Court is a judicial body. There are constraints upon the level of direct assistance it can provide to national systems. There is an element of risk in the Court becoming involved in the formulation of domestic laws, as this leaves the Court open to criticism further down the track if there are any unforeseen complications with the application of those laws. However, I understand that the Registry is developing a database of national implementing legislation as a resource for other countries to refer to. In terms of rendering direct assistance to states, I would argue that this is the role of the states parties, international and regional organisations such as the European Union and African Union (AU), non-governmental organsations (NGOs), and academia, rather than the Court itself. 6. The arrest warrant against President Al-Bashir has fuelled debates that the ICC is subject to political control of the United Nationals Security Council (UNSC). Can the ICC avoid the stigma of politicisation associated with its relationship with the UNSC and does the Court have a responsibility to try to counter any negative perceptions arising from this association? The Court did not adopt its own Statute; states did. The creation of the Court and the parameters set for it resulted from political decisions taken by the international community. The Court must respect those parameters and act judicially. The mandate of the Court is to apply the Statute as it is written, and not as someone wishes it were written. In relation to the UNSC, the power to request a deferral of proceedings is grounded in a specific provision of the Statute. As such, recourse to that provision by states, if it happens, is legitimate and must be respected by the Court. I would suggest, however, that the members of the UNSC and other states should carefully reflect upon the implications of the use of this mechanism, and consider its long term effect upon the Court as an institution. I believe that its application will have serious future implications well beyond any particular E Q H I G H L I G H T S Judge Philippe Kirsch (left), and United Nations Secretary-General Ban Ki-moon (right), United Nations Headquarters, New York, 10 February UN Photo/Eskinder Debebe Published by the IBA EQ: EQuality of Arms Review. Issue 3 13

14 E Q H I G H L I G H T S situation at hand. That said, it is not the role of the Court to challenge the Statute but to apply it. The Court can and must avoid any politicisation by strictly adhering to a purely judicial role in applying the Statute. 7. The AU s response to the arrest warrant for President Al-Bashir reiterates the importance of ongoing cooperation between the ICC and regional organisations such as the AU. Has the ICC been too slow in concluding a relationship agreement with the AU which would have facilitated more effective cooperation between both entities? The Court has been attempting to conclude a formal relationship agreement with the AU for more than four years. While considerable progress was made in reconciling positions in substance, the actual conclusion of such an agreement remained elusive. I believe that the Court remains very interested in concluding such an agreement. Other ways are being explored to establish a closer relationship and better understanding between the ICC and the AU, such as more frequent contacts. Also, the ASP has approved in principle the establishment of an office at the AU headquarters in Addis Ababa, upon which discussions are also continuing between the ICC and AU. I believe this would be a valuable development in enhancing collaboration between the bodies. 8. One major challenge that the ICC faces is that of negative perceptions about its work. Do you think the Court has a duty to try to counter these (mis)perceptions? How can this be done without compromising its core mandate and independence? Unfortunately, it can be very difficult for the Court to counter such misperceptions, because if it engages in the debate too directly, it risks entering a political role and compromising its judicial independence. Furthermore, it is not possible for the Court to defend itself everywhere where these allegations emerge. While the Court certainly has a responsibility to explain what it is and does and has done so from the very beginning within the limits of its resources I would argue that it is not the primary role of the Court, but rather the states parties and those who support the Court and wish to see it succeed, to address misperceptions. One of those misperceptions is the suggestion that the Court is targeting Africa. This is demonstrably false, as clearly illustrated by the fact that of the four African situations before the Court, three were referred to it by the states themselves, and the fourth was referred by the UNSC. The ASP has also demonstrated its support for Africa by the fact that there are five African judges now in the Court. Yet this unfortunate perception persists. This is a case where lack of knowledge and inaccurate information are harmful to the ICC. 9. What measures do you think can be taken to improve the level of ratification at the ICC? What boundaries still exist to ratification? Do you think we will see universal ratification at some point in the future? In my opinion there are a number of different reasons why some states have declined to ratify the Rome Statute to date. Let me give just a few illustrations. A number of states have waited to see how the Court operated in practice. Some countries have been unwilling to join pending resolution of national or regional situations in which they are involved. Others have cited a number of technical legal reasons for not ratifying the Statute, in particular issues of immunities, penalties, and surrender of suspects. Yet, a number of states which did ratify the Statute met similar legal problems, to which there are solutions. Ultimately, a decision to ratify or not largely amounts to a matter of political will. 10. Going forward, what do you envisage for the ICC? There has been a very rapid development in international criminal law since the 1990s. The field had largely stagnated since Nuremberg up to that point. There is now greater certainty in the law. Look, for example, at the list of crimes enumerated in the Rome Statute. A number of them, especially sexual crimes, existed in customary international law for a long time without being properly articulated in treaties. Now there is no more room for ambiguity. We also see the emergence of new bodies, such as the ad hoc tribunals, hybrid bodies, and the ICC. Even though, for jurisdictional reasons, there has been no contradiction so far between the existence of the ICC and the creation of new tribunals, the ICC is bound by its very nature to become the centrepiece of an 14 Published by the IBA EQ: EQuality of Arms Review. Issue 3

15 Judge Philippe Kirsch, former ICC President, and Lorraine Smith, IBA Programme Manager (ICC), at the launch of the sixth IBA ICC Monitoring Report on 9 June E Q H I G H L I G H T S international criminal system. Despite all the challenges we have seen, the Court is much more solidly settled today than it was five years ago. I believe that the ICC will succeed if two conditions are met: first and foremost, the Court must maintain a purely judicial approach in any circumstances; and second, the Court must receive adequate support from states parties, both operationally and politically. On this latter point, the challenge is to secure consistency in the actions of states. I believe that it is in the long term interest of states for the Court to succeed, so that while states may at times waiver in their commitment, they will ultimately not give up. Politics will pass, but the Court is permanent. All in all, if these conditions are met I believe that over time the institution of the ICC will become as widely accepted on the international landscape as the International Court of Justice is now. 11. What issues would you like to see addressed at the upcoming Review Conference? The only mandatory task for the Review Conference is to determine what to do with Article 124 of the Rome Statute, which allowed states not to accept the jurisdiction of the ICC over war crimes for seven years after entry into force. Clearly, the conference will also be expected to pursue the work undertaken by the Preparatory Commission and later by the ASP on the definition of the crime of aggression and conditions for the exercise of the Court s jurisdiction over that crime. It is my understanding that some proposals for inclusion of other crimes will also be made. In addition, the Review Conference should take the opportunity to take stock of where the ICC is. What progress has been made? What has it done well and where should it improve? Finally, although it is still too early to engage in a full technical review of the system, there is an opportunity for the beginning of very useful discussions about some of the general areas that should be considered by the ASP in the future. Formally, the Court has no role in this process. However, it is my understanding that states wish to benefit from the Court s own experience so far and are encouraging its input. I believe this is a healthy development. Prior to the conference the Court should have an opportunity to present its views on some of the issues that it thinks should be discussed at the conference. A platform could be created at the conference for the Court to further elaborate on this, without necessarily leading to immediate action given the limited development of judicial proceedings so far. Published by the IBA EQ: EQuality of Arms Review. Issue 3 15

16 E Q c o n t r i b u t i o n s Safeguarding defence rights at the ICC Xavier-Jean Keïta* The Rome Statute creating the International Criminal Court (ICC) fully recognises and embodies the notion of the right to a fair trial for all persons irrespective of the gravity of the alleged offence. During the drafting process of the Rome Statute, states parties were aware that their nationals could either appear as victims or defendants before the Court. Thus there was a significant emphasis on the procedural safeguards available to guarantee fair trials. The need to secure fair trials and the rights of the defence also stems from the concept of complementarity, according to which the ICC can only assume jurisdiction if national courts are unwilling or unable to fairly and impartially achieve justice. If the ICC is to fill the gap in prosecuting international crimes that are not adequately addressed by national courts, it must also be willing to be judged on the fairness of its proceedings. The importance of fair trial principles was recognised in an early ruling by the ICC Appeals Chamber in December The judges recalled that the mission of the ICC was not to convict, but to deliver fair and impartial justice, and stated that [a] fair trial is the only means to do justice. This was reiterated by ICC Registrar Ms Silvana Arbia on 18 May 2009 when Mr Abu Garda, a suspect in the Haskanita case from Darfur, Sudan made his first appearance before the Court pursuant to a summons to appear. Ms Arbia noted that the voluntary appearance of [Mr] Abu Garda might serve to encourage other suspects currently at large to come before the Court to be heard with all guarantees of a fair trial. States and the international community Fair trial guarantees are not the sole responsibility of the Court. States parties and the international community must assume their responsibilities to assist the Court to implement fair trial principles by providing the necessary cooperation. Cooperation with the ICC means assisting the Court to render fair and impartial justice and enabling the defence to fully exercise their rights under the Statute. For example, states can cooperate by facilitating defence investigations in the same manner that assistance is given to the prosecutor. By so doing, states are helping to prevent injustice because only a Court that is fully apprised of the evidence and arguments of all parties and participants can issue fair, independent and impartial decisions. Consistent with the fundamental human right to liberty, detention must remain the exception and interim release the rule. Given the presumption of innocence, even those who are charged with or suspected of the worst *Xavier-Jean Keïta is the Principal Counsel for the Office of Public Counsel for Defence at the ICC If the ICC is to fill the gap in prosecuting international crimes that are not adequately addressed by national courts, it must also be willing to be judged on the fairness of its proceedings 16 Published by the IBA EQ: EQuality of Arms Review. Issue 3

17 Cooperation with the ICC means assisting the Court to render fair and impartial justice and enabling the defence to fully exercise their rights under the Statute horrors may be acquitted. Acquittal of an innocent person, whose provisional detention was unnecessarily extended during the pre-trial and trial phase, cannot be repaired by compensation. In this regard, while states parties have an obligation to facilitate the execution of warrants of arrest, the freezing of assets and witness relocation, among others, they should equally assist in facilitating persons who have been provisionally released or the repatriation of persons who have been acquitted. It is therefore imperative that the ICC is not faced with the so called Rwandan syndrome, which refers to the situation which developed when defendants who were acquitted by the International Criminal Tribunal for Rwanda found themselves obliged to remain in detention as a result of not being able to return home in complete safety. This phenomenon shattered the principle of the presumption of innocence before international tribunals and today serves as a reminder of the dire consequences of being denied the fundamental right to liberty. Institutional defence support The ICC has established independent institutional support for both victims and defence in the form of the Offices of Public Counsel for Victims (OPCV) and for the Defence (OPCD) which have been hailed as beneficial by international lawyers. At the pretrial stage, the OPCD represents and defends the rights of the defence (regulation 77(4) of the Regulations of the Court) and provides support and assistance to counsel, defence teams and all suspects and accused persons appearing before the ICC. For defence teams the OPCD plays the same role as the Legal Advisory and the Appeals Sections of the OTP. The main function of the OPCD is to provide technical support and assistance to counsel, thereby attempting to address the institutional inequalities and imbalance between them and the OTP, which has considerably more resources and greater familiarity with the cases. The existence and organisation of the OPCD which is not a substitute for freely chosen counsel represents considerable progress from the ad hoc tribunals which preceded the ICC. Though independent in function, the office still falls under the Registry for administrative purposes and is not a separate organ of the Court. By contrast, the recently established Special Tribunal for Lebanon goes a step further: its Defence Office is one of the Tribunal s organs, in the same way as the Chambers, the Office of the Prosecutor and the Registry. This is an encouraging sign that advancements continue to be made in institutionalising support for the defence and safeguarding their rights. Conclusion The road to achieving universality of the principles embodied in the Rome Statute is paved with the core tenets of the presumption of innocence, equality of arms and of fair trial for all. The ICC experience demonstrates that these core principles are at the heart of justice, and that the defence is a necessary pillar of such justice. However, justice comes at a price and international trials are particularly costly because of the logistical elements involved. It is therefore crucial that sufficient funds are made available to allow fair trial rights to be meaningfully realised and not reduced to mere words. It is only by proving that it is a model of international justice, both on paper and in practice, that the ICC, with the assistance of the international community, will silence its detractors and win over sceptics. Note: The views expressed herein are those of the author alone and do not necessarily reflect the views of the International Criminal Court. E Q c o n t r i b u t i o n s The road to achieving universality of the principles embodied in the Rome Statute is paved with the core tenets of the presumption of innocence, equality of arms and of fair trial for all. Published by the IBA EQ: EQuality of Arms Review. Issue 3 17

18 E Q c o n t r i b u t i o n s Parents or partners: evaluating the relationship between NGOs and the ICC William Pace* When the Rome Statute of the International Criminal Court (ICC) came into being in 1998, it created a new world court designed to enforce individual violations of war crimes, crimes against humanity and genocide. The adoption of the Rome Statute was not only, according to many experts, the greatest advance in international law since the adoption of the United Nations (UN) Charter, but also represented one of the most important examples of a new model of making international law called by some the new diplomacy. The role of non-governmental organisations (NGOs) It is well-recognised that the ICC is unlikely to have emerged in the same way without the crucial participation of global civil society. 1 Indeed, it is doubtful whether any international organisation and assembly of state parties have more constructive consultative arrangements with NGOs than the ICC. Yet few have a comprehensive insight into the multi-layered and multi-faceted role that NGOs have had, and indeed continue to have. When, whether by accident or intention, the UN General Assembly s Legal Committee began consideration of a Draft Statute for an ICC in 1994, NGOs from different sectors and parts of the world decided to come together and began immediately to work constructively with like-minded governments. At the Rome conference, NGOs surprised many government delegations by the significance of their substantive contributions. NGOs influenced the content of the Rome Statute itself and the inclusion of specific provisions including: the independence of the judges and prosecutor, automatic jurisdiction over the crimes within the Court s jurisdiction, no immunity, strong provisions on gender crimes, victims participation and reparations, among others. The diversity and depth of civil society s involvement before and since 1998 makes the question of whether NGOs can be considered parents or partners a challenging, but very interesting one. The difficulty in making such a determination also stems from the complex identity of NGOs as a collective or as one actor. For most NGOs involved with the ICC, the Rome Statute constitutes one component of their overall objective be they human rights, justice, conflict prevention or gender. While they are committed to the system in principle, their support for and involvement in a certain ICC issue is contingent on its relevance to their specific objectives and mandate. This is what makes the NGO Coalition for the ICC (CICC) network so crucial, in that it assists in ensuring that NGOs are engaged where useful and relevant to their work. Consultation, advocacy and support Despite their often limited resources, NGOs have played a key supportive role both within and outside of the ICC. Within the Court, NGOs have consulted extensively with different court organs on matters of policy and strategy. An important contribution, and arguably the most visible side of NGOs relationship with the Court, is their active role in documenting gross violations of international humanitarian and human rights law and submitting their * William Pace is the Convenor of the NGO Coalition for an International Criminal Court (CICC) CICC 18 Published by the IBA EQ: EQuality of Arms Review. Issue 3

19 NGOs are considered by the Court, states parties and observers as partners with complementary objectives and activities. William Pace in a meeting with various NGOs. CICC findings to the Court, which are often cited in court proceedings and filings. Beyond the Court, NGOs dedicate significant resources to raising awareness and generating support and cooperation with the ICC. Strategic approaches include organising training for key stakeholders, press releases and media advocacy. The Court relies extensively on support and cooperation in order to be able to carry out its daily functions. Indeed, many NGOs act as intermediaries or bridges between victims in affected communities and the ICC. The work of civil society does not replace but rather supplements the Court s efforts and fills a critical gap. Ratification and implementation campaigns The Rome Statute is no different from other treaties; there is usually an initial groundswell of support for its adoption, however the devil is in the detail. NGOs knew that once the Rome Statute was adopted, the Court would then be faced with the challenge of securing the sustained support of states through ratifications and implementation of Rome Statute crimes at the national level. Ratification and implementation campaigns organised by NGOs are crucial to the Court s sustainability. Although the activities of the Court have an immense political impact, it is a judicial not a political creature. As such it relies extensively on NGO efforts to help raise awareness among states to create the political will for countries to join the Court and to adopt implementing laws. With their expertise in these issues, NGOs assist countries to address legal obstacles to ratification, including by producing manuals and model laws. Partners not parents A parent is someone who carries responsibility and seeks to provide life-sustaining support for their offspring. While NGOs were engaged at the outset and have remained engaged in every stage of this historic evolution, primary responsibility and control has remained with states. Rather, NGOs have become an important support system to the parents. NGOs are considered by the Court, states parties and observers as partners with complementary objectives and activities. However, as with any independent partnership, there are often areas of disagreement about priorities and strategies. NGOs are far from being complacent partners; a crucial component of their role is to provide constructive criticism of the Court s work. While this may be a challenge for the Court, it is an important part of civil society s investment in the system. Conclusion The ICC and the Rome Statute system are still very young. The formative years of a young organisation are its most vulnerable, during which it requires most support. The system of cooperation with states, the principle of complementarity and collaboration with regional organisations and civil society is still being formalised. NGOs have been a part of the process since its inception and have a vested interest in the Court s success. Much has been achieved the first trial has finally begun but the Court still has a long journey ahead to full maturity. The NGOs and CICC will accompany the Court as vital partners that will help the ICC to fulfil its mandate. Notes 1 How Activists Shaped the Court, by Marlies Glasius, War Crimes Project, December 2003, crimesofwar.org/icc_magazine/icc-glasius.html E Q c o n t r i b u t i o n s Despite their often limited resources, NGOs have played a key supportive role both within and outside of the ICC Published by the IBA EQ: EQuality of Arms Review. Issue 3 19

20 E Q c o n t r i b u t i o n s From the Seven Hills of Rome to the Seven Hills of Kampala : preparing for the 2010 ICC Review Conference Ambassador Mirjam Blaak* The Hague, 2002 The International Criminal Court (ICC) was established in 2002 in The Hague, the Netherlands. African states, which constitute the largest single regional geographical group that have ratified the Statute, have attached great value to this institution and showed true commitment by making the first referrals, handing over its first indictees and more recently cooperating with the ICC by facilitating the first voluntary surrender of a suspect to the Court. Kampala, 2010 * Ambassador Mirjam Blaak, Deputy Head of Mission at the Ugandan Embassy in Brussels Rome, 1998 In July 1998, the Plenipotentiary Diplomatic Conference brought together all diplomats, intellectuals, activists and United Nations (UN) member states; in short, every aspect of life was represented in Rome. All cried out in unison with jubilation when the Rome Statute was adopted and ready for signature. In 1945 when the UN was created, those present said that there should never be war again. In 1998 they went a step further to say no to impunity and disregard for human dignity. A new era was born that would ensure no hiding place for criminals, and redress for victims of the crimes described in the Rome Statute. The Rome Statute (Article 123) provides for a Review Conference to be held seven years after the Statute enters into force. Uganda offered to host the Review Conference during a meeting of the Special Working Group of the Crime of Aggression at Princeton University in June In keeping with African cultural tradition whereby people visit others who have suffered to empathise, comfort and show solidarity, Uganda felt that states parties coming to the region which has borne the brunt of the century s worst atrocities would remind victims that they are high on the Court s agenda. Though there was vast support for this initiative some states were apprehensive about hosting the Review Conference in a country in which the ICC is currently carrying out investigations. However, with the assurances extended by the Government of Uganda, the Assembly of States Parties (ASP) finally agreed that the venue for In keeping with African cultural tradition whereby people visit others who have suffered to empathise, comfort and show solidarity, Uganda felt that states parties coming to the region which has borne the brunt of the century s worst atrocities would remind victims that they are high on the Court s agenda 20 Published by the IBA EQ: EQuality of Arms Review. Issue 3

21 The first Review Conference of the ICC is more than simply an opportunity to analyse the legal texts of the Court. Holding the Review Conference in Uganda provides an unprecedented opportunity to create avenues of engagement between ICC states parties, other delegates and the people affected by the Court s work the Review Conference would be in Kampala, Uganda s capital city. Despite its turbulent political history, Uganda is one of the countries that have spearheaded the cause for justice at national and international levels. Uganda ratified the Agreement on Privileges and Immunities of the Court in January 2009, and has continued to cooperate with the Court. Uganda is no stranger to hosting high-profile international conferences; this is aptly demonstrated by the successful hosting in October 2007 of the Commonwealth Heads of State meeting where high-ranking officials, and Her Majesty the Queen of England were among the guests. Issues for review The proposed dates for the Review Conference are 31 May to 11 June 2010 but are subject to change. The final dates and agenda will be confirmed during the ASP in November The ASP has recommended that the Review Conference be an occasion for stocktaking of international criminal justice with the input of academics, global policy makers, and civil society. The Conference will be convened by the UN Secretary General and announced in July The review may include but is not limited to the list of crimes contained in Article 5 of the Statute, namely genocide, war crimes, and crimes against humanity. The Conference will also discuss specific amendments to the Rome Statute, particularly the inclusion of the definition and trigger mechanism for the crime of aggression, the fourth crime listed in Article 5, but which is not yet defined. The crime of aggression has been discussed for many years in special sessions and working groups of the ASP. Civil society involvement Uganda attaches great value to the role played by non-state actors such as the local non-governmental organisations (NGOs) in the situation countries who support the work of the Court by their activities including providing assistance to local victims. Prior to and during the Review Conference, a platform will be provided to NGOs to organise forums and debates that will no doubt enrich the discussions and provide useful information for states delegates and others. One such initiative is the nationwide awareness campaign co-launched by the Human Rights Network-Uganda, the international organisation No Peace Without Justice and the Ugandan Coalition for the International Criminal Court. The initiative is aimed at ensuring the effective participation of civil society during the Review Conference; raising awareness and creating understanding of the Review Conference and the ICC among the Ugandan public; and creating avenues of engagement between ICC states parties and Ugandan civil society. Conclusion The first Review Conference of the ICC is more than simply an opportunity to analyse the legal texts of the Court. Holding the Review Conference in Uganda provides an unprecedented opportunity to create avenues of engagement between ICC states parties, other delegates and the people affected by the Court s work. Despite the fact that African states have been involved with the Court since its inception, some Africans still hold the view that the ICC is a European Court judging Africans. Indeed, recent developments at the African Union about the ICC s role in Africa make it clear that there is urgent need for dialogue on the African continent in order to create greater understanding about international criminal law and the obligations of states parties. E Q c o n t r i b u t i o n s Prior to and during the Review Conference, a platform will be provided to NGOs to organise forums and debates that will no doubt enrich the discussions and provide useful information for states delegates and others Published by the IBA EQ: EQuality of Arms Review. Issue 3 21

22 E Q N E W S B R I E F S EQ News Briefs First appearance of Jean-Pierre Bemba before the Pre- Trial Chamber III ICC-CPI Pre-Trial Chamber confirms some charges against Jean-Pierre Bemba On 15 June 2009, Pre-Trial Chamber (PTC) II confirmed a number of the charges brought by the Prosecutor of the International Criminal Court (ICC) against Jean-Pierre Bemba Gombo, the alleged President and Commander-in- Chief of the Mouvement de Libération du Congo (MLC). Mr Bemba, former Vice President of the Democratic Republic of Congo (DRC) was charged with five counts of war crimes (murder, rape, torture, outrages upon personal dignity, and pillaging), and three counts of crimes against humanity (murder, rape and torture) arising from the role of the MLC in the conflict in the Central African Republic (CAR) between October 2002 and March The Prosecutor originally charged Mr Bemba with criminal responsibility as a co-perpetrator under Article 25(3)(a) of the Rome Statute; however, following a decision of the PTC the charging document was amended to include the alternate mode of liability as a military commander. This amendment was crucial to the Prosecution s case as the PTC ultimately rejected co-perpetration as a mode of liability, and relied exclusively on command responsibility. The PTC confirmed the charges of murder and rape as crimes against humanity, and murder, rape and pillaging as war crimes. The Chamber declined to confirm torture as a crime against humanity and outrages against human dignity as a war crime on the basis that these charges, which were largely based on acts of rape and other sexual violence, were fully subsumed by the charges of rape as the same conduct underpinned both charges. The PTC declined to confirm these charges on the basis that the prosecutorial practice of cumulative charging was detrimental to the rights of the defence, noting that it imposed on the defence the undue burden of responding to multiple charges for the same facts and ultimately delayed the proceedings. The PTC also declined to confirm torture as a war crime, finding that the Prosecutor had failed to sufficiently demonstrate the specific intent of the alleged perpetrators. The Prosecutor has applied for leave to appeal, contending that the PTC acted outside its authority under Article 61(7) of the Statute by declining to confirm the charges on grounds other than the sufficiency of the evidence. In declining to confirm the charges the Chamber noted that the Prosecutor s charging document had failed to clearly identify the facts underpinning the charges. This deficiency in the Chamber s view effectively denied the defence the opportunity to adequately prepare its case. The Prosecutor urged the Chamber to grant leave so that, among other things, a consistent jurisprudence on how charging documents will be interpreted can be established. Richard Goldstone receives MacArthur Award for International Justice The International Bar Association Human Rights Institute (IBAHRI) Co-Chair, Justice Richard J Goldstone, was conferred with the John D and Catherine T MacArthur Foundation MacArthur Award for International Justice in The Hague on 25 May As part of the award, Justice Goldstone was awarded $100,000 for his own work as well as an additional $500,000 to provide support for non-profit organisations working on international justice issues. The IBAHRI was one of the grateful recipients of $100,000. According to the John D and Catherine T MacArthur Foundation, the Award for International Justice honours individuals that have been transformative forces in the fields of human rights and Justice Richard Goldstone 22 Published by the IBA EQ: EQuality of Arms Review. Issue 3

23 Mathieu Ngudjolo Chui ICC-CPI international justice; improved existing, or helped to create new, institutions, norms, and systems of international justice; and have demonstrated long-term commitment and made a significant personal contribution to advancing international justice. Justice Goldstone has played a huge role in the development of the modern era of international justice. He was Chief Prosecutor of the Tribunals for Rwanda and the former Yugoslavia, helping to direct the first courts of their kind since Nazi war criminals were tried at Nuremberg following the Second World War. Justice Goldstone set a high moral and legal standard for tribunals by insisting on the independence of counsel and judges, transparency in the establishment of facts in each case, due process for the accused, and the importance of first-hand testimony from witnesses and surviving victims. Prior to 1994, Justice Goldstone was Chair of the Commission of Inquiry Regarding Public Violence and Intimidation in South Africa, where he also served as an inaugural member of the Constitutional Court. ICC Presidency hands down decision on family visits At its seventh session in November 2008, the Assembly of States Parties (ASP) adopted a resolution recognising the entitlement of detained persons to receive family visits but indicating that there was no co-relative legal right to have those visits funded by the detaining authority. 1 The Assembly urged constructive dialogue between the Court and states parties aimed at a proper review of the issue by the Committee on Budget and Finance and for ultimate decision by the Assembly during its eighth session. 2 On 10 March 2009 a decision was handed down by the Presidency of the Court on the matter of family visits. 3 Mr Mathieu Ngudjolo Chui, who is charged before the ICC and held at the ICC detention centre since February 2008, challenged the Registrar s decision to fund three family visits of two persons or two family visits of three persons, on the basis that at no time will he have a chance to see his entire nuclear family. In its decision, the Presidency found that although there was no consensus as to a general obligation by the Court to fund family visits, in order to give effect to the indigent detainee s right to such visits in the particular case, there was an implied positive obligation to fund the family visits. The Registrar was ordered to ensure that provision is made for the funding of family visits to indigent detained persons in the budget of the Court. The Presidency noted that the obligation to fund family visits cannot create an entitlement to unlimited funding but would be restricted by the Court s resource constraints. 4 For some states parties the Presidency s decision is a matter of some concern, coming as it did after the Assembly s resolution that there should be constructive dialogue between the Court and states parties concerning a policy decision to fund family visits. States are concerned that the Presidency s decision could establish an unfortunate precedent that could have implications even for national courts. Discussions on the issue are continuing at the level of The Hague Working Group in advance of the upcoming session of the Assembly. African civil society rallies around the ICC Civil society can have a powerful impact, particularly when it speaks with one voice. When African civil society became aware that African states parties to the Rome Statute were planning to meet in Addis Ababa, Ethiopia on 8-9 June 2009 to consider their position on the ICC, they rallied together to voice their unequivocal support for the Court and international criminal justice. At a meeting organised by the Coalition for the International Criminal Court (CICC) in Kampala, Uganda, May, 24 regional and international non-governmental organisations (NGOs) issued a powerful outcomes statement calling on African states parties to the Statute to, among other things: commit to respect the principles established under the Rome Statute and not take any steps that could undermine the functioning of the Court. The NGOs also urged the states parties to fully support the work of the Court, as it represents the last resort for the thousands of victims of grave human rights violations who cannot obtain justice at the national level. 5 The Court was encouraged to pursue robust engagement with key stakeholders including governmental officials, civil society organisations and regional groups such as the African Union(AU). The latter was urged to establish a mechanism to facilitate dialogue between its organisation, civil society, the ICC and other relevant bodies. A similar call was made by civil society on the occasion of the fifth citizens continental E Q N E W S B R I E F S Published by the IBA EQ: EQuality of Arms Review. Issue 3 23

24 E Q N E W S B R I E F S conference on the 13th African Union summit held on 5-6 June 2009 in Addis Ababa. More than 30 national, regional and international civil society organisations including the IBAHRI, adopted a communique and made recommendations on issues related to Agriculture, Food Security and Financing for Development in Africa as well as on Peace, Security and Human Rights in Africa. Participating organisations recalled the active involvement of African countries in drafting the Rome Statute and establishing the ICC. In this regard, the organisations called upon AU member states to respect the independence of the ICC and its judicial processes, as well as that of national courts. 6 Several recommendations were made directly to the AU including the need to conclude a cooperation agreement and sign a memorandum of understanding with the ICC; facilitate the opening of an ICC liaison office in Addis Ababa; make a clear distinction between the principle of universal jurisdiction and the ICC; and, operationalise the African Human Rights and Justice Court in order to fight impunity in Africa. ICC Seventh Seminar of Counsel The Hague, the Netherlands May 2009 On May 2009, the ICC held its annual Seminar of Counsel at the World Forum in The Hague, the Netherlands. This seminar, organised every year since the establishment of the ICC, offers an excellent opportunity for the ICC legal community to meet and discuss issues of shared interest. This year the event brought together over 200 participants, including 150 of the 280 members of the ICC List of Counsel, the roster of lawyers accredited to practice before the ICC. In his opening remarks ICC President Sang-Hyun Song noted that the Seminar of Counsel shows the ICC s dedication to continuing engagement with the legal community. The seminar provided the attendees with information concerning the latest developments at the ICC and discussed challenges related to defence issues, legal aid for victims, as well as disclosure of evidence and the anonymous participation of victims in proceedings before the Court. The participants were also given updates about the activities of the Victim Participation and Reparations Section, the Defence Support Section, and the Offices of Public Counsel for Victims and Defence by representatives of these units. Many of the discussions were led by panels comprised of experts in the field of international criminal law. IBA Executive Director Mark Ellis was a member of an expert panel and gave some critical perspectives on the Registry s proposed amendment to the determination of indigence under its legal aid programme. The seminar was followed by a three day training course for counsel, aimed at providing lawyers with the practical skills necessary to effectively perform their duties as defence counsel and legal representatives for victims. The training covered legal issues such as the elements of crimes and modes of responsibility under the Rome Statute; as well as practical matters, such as the ICC e-court system, the protection of victims and providing advice to suspects. Notes 1 See Part III Resolutions adopted by the Assembly of States Parties, docs/iii.pdf at para Ibid para See Decision on Mr Mathieu Ngudjolo s Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar s Decision of 18 November 2008, reclassified as public on 24 March 2009, ICC-RoR /08, at iccdocs/doc/icc-ror eng.pdf. 4 Ibid para See full outcomes statement at documents/statement_africa_strategyfvv.pdf. 6 The full statement can be accessed at pambazuka.org/aumonitor/comments/2391/. Seventh annual International Criminal Court Seminar of Counsel in The Hague, the Netherlands, May icc-cpi.int 24 Published by the IBA EQ: EQuality of Arms Review. Issue 3

25 EQ events and publications Launch of sixth IBA/ICC Monitoring Report The Hague, the Netherlands, 9 June 2009 The sixth International Bar Association (IBA) International Criminal Court (ICC)monitoring report entitled First Challenges: An assessment of landmark developments at the International Criminal Court was launched on 9 June during a ceremony at the South African Embassy in The Hague. The event was hosted by the Ambassador of the South African Embassy, His Excellency Mr Peter Goosen. Former ICC President Judge Philippe Kirsch and Justice Richard Goldstone gave keynote addresses to a distinguished gathering of guests including ICC President Judge Sang-Hyun Song and Ms Silvana Arbia, ICC Registrar. The report looks at developments in the case of Thomas Lubanga Dyilo, the ICC s first trial; the arrest warrant against Sudanese President Al-Bashir, the ICC s first against a sitting head of state; and the case against Jean-Pierre Bemba, the ICC s first case from the Central African Republic. that day, Ms Nicole Fritz, Executive Director of the Southern African Litigation Centre discussed the issue of universal jurisdiction and international justice in Africa; and Ms Liliana De Marco Coenen, Head of the IBA Outreach Programme on the ICC, presented on the role of lawyers and opportunities for South African legal professionals to engage with the Court. Over 50 participants from diverse backgrounds attended the seminars. The breadth of the presentations on issues such as whether Africa is the sole target of ICC prosecutions; accountability in Zimbabwe; the role of regional courts; politicisation of international proceedings and the role of the United Nationals Security Council, triggered an interesting and engaging debate between the panellists and the audience. More information may be accessed on the IBA website at: aspx?documentuid=cfa0e A3E4-D6ACC618DDB6 E Q e v e n t s a n d p u b l i c a t i o n s Liliana De Marco Coenen (Head, IBA Outreach Programme (ICC)), Brian Spilg SC (Convenor Human Rights Committee of the GCB), and Fatou Bensouda (ICC Deputy Prosecutor) at the seminar in Johannesburg, 16 April 2009 Seminar Series: Bringing the International Criminal Court to South African legal professionals Johannesburg and Cape Town, South Africa, 14 and 16 April 2009 The IBA ICC Monitoring and Outreach Programme, in collaboration with the Law Society of South Africa and the General Council of the Bar of South Africa, hosted two seminars in Johannesburg and Cape Town, South Africa, on issues related to the ICC and international justice. At the seminar, ICC Deputy Prosecutor Fatou Bensouda, gave a general introduction about the ICC including an overview of the situation and cases before the Court. Ms Bensouda also spoke about Africa s involvement with the ICC. Professor Max du Plessis, senior researcher at the Institute for Security Studies, addressed South Africa s obligations under the Rome Statute and South Africa s ICC Act. During another session later Conference on the International Criminal Court: Prospects for International Criminal Justice in Mozambique Maputo, Mozambique, June 2009 The IBA, in collaboration with the Mozambican Bar Association and the Institute for Security Studies, organised an international conference for lawyers and civil society organisations on the ICC entitled Prospects for International Criminal Justice in Mozambique. The two day high-level conference was designed to facilitate debate among the legal profession, and featured keynote remarks by ICC Judge Sylvia Steiner; ICC Deputy Prosecutor Fatou Bensouda; President of the Constitutional Court of Mozambique, Dr Luis Mondlane; Minister of Justice of Mozambique, Her Excellency Bevinda Levi; and President of the Southern Africa Development Community Lawyers Association, Mabvuto Hara, among others. The first day of the conference was dedicated to introducing the Rome Statute establishing the ICC and discussing general principles of international criminal justice. On the second day there were vibrant debates on the relevance of the ICC and international criminal justice to Mozambique, perceptions of the Court, and domestic implementation of the Rome Statute in Africa. Published by the IBA EQ: EQuality of Arms Review. Issue 3 25

26 E Q e v e n t s a n d p u b l i c a t i o n s EQ Publications Latest ICC monitoring report: First Challenges: An assessment of landmark developments at the International Criminal Court The latest IBA ICC Monitoring Report was released on 9 June The IBA report looks at developments in the case of Thomas Lubanga Dyilo, the first accused to be tried before the ICC, the arrest warrant against Sudanese President Omar Al-Bashir and the case against Jean-Pierre Bemba, the ICC s first from the Central African Republic. The report notes that while the progress made in the Lubanga trial is encouraging, the ICC still faces many obstacles. One key finding of the report is that public access to the Lubanga trial proceedings is often hindered by the number of closed session hearings. This highlights the challenges faced by ICC judges in guaranteeing the defendant s right to open justice without compromising the security of witnesses who testify. In relation to the Al-Bashir arrest warrant, the report notes that criticism of the ICC s alleged bias against Africa and negative views about the impact of ICC proceedings on local peace processes have increased significantly since the warrant was issued. The report encourages the African Union as a regional leader and African states parties to fully support the work of the ICC on the continent by collaborating with the Court to combat impunity for crimes affecting thousands of African victims. The report may be accessed on the IBA website at: IBA Human Rights Institute A n n u a l R e p o r t IBA Human Rights Institute Annual Report 2008 The International Bar Association s Human Rights Institute has recently published its 2008 Annual Report, detailing the activities of the past year and the development and progression of the Institute s aims and objectives, notably: The promotion, protection and enforcement of human rights under a just rule of law; The promotion and protection of the independence of the judiciary and the legal profession worldwide; The worldwide adoption and implementation of standards and instruments regarding human rights accepted and enacted by the community of nations; and The acquisition and dissemination of information concerning issues related to human rights, judicial independence and the rule of law. Editorial Notes Correction In the Special African Edition of EQ (Issue 2, March 2009), footnotes to two quotes which appeared on pages 3 and 19 were omitted. These were quotes from Judge Navanathem Pillay taken from An African Guide to International Justice at page ix and from Max Du Plessis and Jolyon Ford in No Peace, No Justice Unable or Unwilling, Case Studies on Domestic Implementation of the ICC Statute in Selected African countries (ISS Monograph No 141), Executive Summary, both publications of the Institute of Security Studies (ISS). The IBA regrets the omission. Disclaimer The views expressed by contributors are those of the authors alone and do not necessarily reflect the view of the International Bar Association. 26 Published by the IBA EQ: EQuality of Arms Review. Issue 3

27 Lorraine Smith (IBA Programme Manager (ICC)), Shirley Pouget (Intern), Tom Beamish (Intern), and Liliana De Marco Coenen (Head, IBA Outreach Programme (ICC)). About the IBA The International Bar Association (IBA), established in 1947, is the world s leading organisation of international legal practitioners, bar associations and law societies. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world. It has a membership of more than 30,000 lawyers and nearly 200 bar associations and law societies spanning all continents. It has considerable expertise in providing assistance to the global legal community. In 2005 the IBA commenced the International Criminal Court (ICC) Monitoring and Outreach Programme through funding provided by the Catherine T and John D MacArthur Foundation. The monitoring component of the programme analyses the developments of the ICC focusing in particular on issues affecting the fair trial rights of the accused, the implementation of the Rome Statute, the Rules of Procedure and Evidence, and related ICC documents. The IBA monitor engages in high level consultations with key stakeholders within and outside of the ICC. Periodic reports are then issued. The outreach component of the programme disseminates information and promotes debate on the ICC through the IBA s membership network. In order to promote a deeper understanding of how the ICC fits within the broader landscape of international justice, the IBA works in key countries in partnership with national bar associations and civil society organisations. Findings and recommendations from the outreach work are fed back to the Court with a view to creating a dialogue between targeted groups and the Court. For more information about the IBA/ICC Monitoring and Outreach Programme visit the IBA website at or contact the IBA Programme Lawyers in The Hague: A B O U T T H E I B A Monitoring Lorraine A Smith IBA Programme Manager (ICC) +31 (0) lorraine.smith@int-bar.org Outreach Liliana DeMarco-Coenen Head, IBA Outreach Programme (ICC) +31(0) liliana.demarco-coenen@int-bar.org Published by the IBA EQ: EQuality of Arms Review. Issue 3 27