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Exclusive interview: New ASP President Kwon seeks to expand the ICC family

Journalists For Justice / 09 March 2018

Signing up to serve as the head of the Assembly of States Parties (ASP), the ICC’s management, oversight and legislative body, takes some nerve.  As the highest official in the ICC’s political organ, the ASP President takes as much incoming fire as is directed at the International Criminal Court. But unlike the court, which deliberately eschews political debates, the ASP President has to perform a delicate diplomatic dance in order to keep the ICC family intact

The job is akin to herding cats. That’s if the cats had been indicted by the ICC, had millions of dollars to spend on discrediting the Court, could play the race card and were strategically important players in an often overheated geopolitical environment. Still, it is a job that must be done. Respected jurist O-Gon Kwon is set to captain the ASP through the choppy waters that lie ahead.

Kwon’s credentials are unquestionable. A Harvard alumnus, he served as a judge for 22 years in his native South Korea before taking up a position as a permanent judge of the International Criminal Tribunal for the former Yugoslavia (ICTY) from 2001 to 2016.

As he settles into his new position, Kwon granted a wide-ranging interview to Journalists for Justice’s Thomas Verfuss, who didn’t shy away from raising the tough questions. The interview has been edited for clarity.

The ICC faced the ‘withdrawal crisis’ last year. The outgoing ASP president, a prominent African politician and human rights activist, has succeeded in getting relations between African states and the Court on track again, into calmer waters, mainly through dialogue and silent diplomacy. What will be your approach to this difficult reconciliation process? As a first measure, you have insisted on an ASP vice-president from Africa. You have ‘taken the temperature’ during a first Bureau meeting in The Hague just before Christmas. Has this led to new plans or will you continue the strategy of your predecessor for now?

 Kwon: Let me start by paying tribute to the previous President of the Assembly, Sidiki Kaba, for all his outstanding work during his presidency. He relentlessly fought for the values and ideals that the ICC represents. His term coincided with unprecedented challenges, notably the notifications of withdrawal from the Statute by several States, and he made great efforts to address that crisis through open dialogue under the auspices of the Assembly. As President of the Assembly, I will continue his legacy by engaging in an open and honest dialogue with the different parties and interests at stake in the African continent and beyond, to understand concerns and work together to strengthen the system. The fact remains that the Court is not an African court but a world court with a global mandate, which nonetheless does not yet have universal participation. The legitimacy of the Court also comes from increased membership and solid commitment. I will redouble my efforts as President to promote universality and work towards increasing the number of States Parties to the Rome Statute. I will put particular emphasis on reaching out to the Asia-Pacific region, which is the least represented regional group in the Rome Statute system.

The recent initiatives to withdraw from the treaty are a stark reminder that the expansion of the system cannot be taken for granted. We must not only seek to attract new members, but also maintain the current membership. States Parties must remain firm in their defence of the integrity of the Rome Statute so that the ICC continues to be a solid and durable protector of victims of the most atrocious crimes around the world. And indeed, while the withdrawal of Burundi from the Statute is regrettable, I am glad that further withdrawals have not materialized. In fact, there seems to have been also a wave of renewed commitment in reaction to the notifications of withdrawals, including by numerous African States, which also continue to provide strong cooperation for the Court’s investigations and trials.

I am in the process of setting my own priorities, which I will reassess on a continuous basis. In any case, as I already indicated, frank and constructive dialogue will definitely be an important part of my approach as President of the Assembly. The rich diversity of the Court’s membership is a strength of the system, and it comes with a variety of views on matters within the Assembly’s mandate. I will actively seek to listen to the different views and any concerns that may exist in order to facilitate workable solutions for the strengthening of the Court and the broader system of international criminal justice.

Compared to the enthusiasm at the Rome conference (delegates hugging each other after the adoption of the treaty text), support for the Court is now rather lukewarm. Have you plans to redress this issue, especially in the year 2018 when the fight-against-impunity will take centre stage and the international community will take stock and celebrate 20 years of the Rome Statute?

Kwon: It is quite difficult to compare the enthusiasm around any international organization or court at the adoption of its founding document to a period of two decades or more later when the institution is up and running and busy at work. In Rome, the ICC was a dream – now it is in many ways business as usual. Having said this, the Court has solidified itself as the key reference point for international criminal justice; it is now a full-fledged and respected international institution, and support for the Court continues to be strong, not only among States but in particular among the victims of the crimes over which the Court has jurisdiction.

And, in fact, I believe that the special enthusiasm you recall is still there. I had the privilege of witnessing another historic and exhilarating moment on December 14, 2017 when at the Assembly of States Parties decided, by consensus, to activate the jurisdiction of the Court over the crime of aggression, with delegations and NGO representatives rejoicing.

[The year] 2018 is a very important and symbolic […] as it marks the 20th anniversary of the Rome Statute that led to the creation of the ICC. With the unanimous activation of the jurisdiction of the Court over the crime of aggression this past December, the international community once more reiterated its strong support for the ICC and renewed commitment to the values and ideals it stands for. That said, the fight against impunity is a continuous struggle, especially in a changing, turbulent world with new types of violent conflicts. I intend to work closely with other stakeholders, in particular governments, to redouble efforts not only to maintain but to advance, strengthen and expand the Rome Statute system of international criminal justice.

Judge Perrin de Brichambaut expressed the fear recently that there may be no suspects to be tried soon, which would, of course, further undermine the credibility of the Court and states' willingness to give it sufficient financial resources. On the other hand, there are prominent fugitives. What are you going to do about this situation in particular and the recurrent lack of cooperation in general?

Kwon: It is very worrying that 15 ICC suspects remain at large, some of them avoiding justice already for more than 10 years. Indeed, the lack of arrests means that the Court is unable to hear the allegations against the defendants in the courtroom, also rendering it impossible to provide justice to victims.

With good reason the Court has repeatedly raised with the Assembly the high number of outstanding arrest warrants as a serious matter with a significant negative impact on its ability to execute its mandate.

As President of the ASP, I will endorse the promotion of enhanced coordination and consultation with respect to efforts to secure arrests of fugitives. It is a difficult and complex challenge, but we must seek ways to step up the efforts. It is absolutely essential for the credibility of the system, and the ability of the Court to make an impact in reducing impunity and providing justice to victims.

Let us keep in mind that under the Rome Statute, the enforcement of arrest warrants is the responsibility of States, not the Court – in this sense the Assembly of States Parties undoubtedly has an important role to play, and I will actively look for ways to make progress on this matter. The UN Security Council should also play a part in the context of situations that it has referred to the ICC Prosecutor, imposing obligations of cooperation on States in the referral resolutions.

Obviously, we also need to strengthen cooperation in general, but arrests are an issue deserving special attention. In this context, we may also look to the experiences of other international courts and tribunals, such as the International Criminal Tribunal for the former Yugoslavia and the Special Court for Sierra Leone, which were successful in bringing fugitives to justice, even if it took a very long time in some cases. These experiences show that with the cooperation of the relevant actors, determination and concerted efforts over a long time, results can be achieved. That said, naturally the context of the ICC is different and, furthermore, the situation of every fugitive is unique – but I believe that where there’s a will, there’s a way.

Despite the challenges in respect of arrests, the Court is busy at the moment with three trials, multiple appeals, and reparations proceedings in four cases. The ICC continues carrying out its mandate. For example, on August 15, 2017 a warrant of arrest was issued for Mr Mahmoud al-Werfalli, a Major in the Al-Saiqa forces, on charges of murder as a war crime for his alleged participation in executions in the Benghazi area of Libya.

Recent reports by Mediapart and other media have led to a renewed discussion about oversight and supervision versus independence of the Court and its Prosecutor. Will you reopen the debate on checks and balances, and have you proposals to make?

Kwon: The Court takes such allegations seriously. The Court, in particular Prosecutor Bensouda, reacted swiftly by taking provisional measures and reporting the allegations implicating OTP staff members to the Independent Oversight Mechanism (IOM). Soon after the OTP requested the IOM to intervene, the IOM determined that the matter would proceed to a full investigation.

The IOM is a mechanism established by the Assembly of States Parties in accordance with the Rome Statute with the mandate to conduct internal Court inspections, evaluations and investigations at the request of the Assembly or a Head of Organ of the Court. As a subsidiary body of the Assembly, the IOM is separate and independent from the Court. The IOM investigation mandate relates to matters of compliance with Court rules and regulations, including the Court's Rules of Procedure and Evidence, by personnel, staff members and elected officials of the Court. Non-compliance is deemed to be misconduct.

I have full confidence that the IOM will treat and assess any allegations in an objective and impartial manner with full respect for due process standards and fair treatment of the staff members concerned. When investigations are under way, it is preferable that speculation not be entertained.

For these reasons the existence of a robust and independent IOM is of crucial importance for the Assembly’s ability to provide meaningful oversight to the Court without jeopardizing the Court’s or the Prosecutor’s independence. The two matters are not contradictory or incompatible, as long as clear procedures and effective mechanisms are in place, such as the IOM. 

This is also why I do not see the need to “reopen” debates, but rather focus on ensuring the necessary support to the IOM and other existing functions of the Assembly and the Court itself. Naturally, this is not to preclude consideration of possible improvements where warranted.  

What can the Court do to better address the needs and concerns of the victims?

Kwon: Victims are central to the work of the Court. The Court makes particular efforts to facilitate their access to the trials and increase their knowledge about the proceedings through better outreach and communication of the Court ́s work in the affected communities. Currently, nearly 13,000 victims are participating in the proceedings, a 30 per cent increase from 2014. The role accorded to victims by the Court’s legal regime is unique and we must continue to ensure that victims benefit from meaningful outreach, participation, legal representation and reparations.

A great deal has been done during the Court’s first 15 years of operations but these are still early days in the lifespan of the institution and continuous efforts should be made to learn lessons from the experiences so far with a view to identifying possible improvements. This has also been underlined by the outgoing President of the Court, Judge Silvia Fernández, who has said that judges should seek to identify best practices and harmonize procedures for the participation of victims, and that efforts should be made to expedite proceedings, not least to ensure that reparations could be provided to victims without unnecessary delay.

In 2017, reparations orders were issued in both the Katanga and Al Mahdi cases, stemming from the situations in the Democratic Republic of Congo and Mali, respectively. The Registry is working with the Chambers, legal representatives for victims and the Trust Fund for Victims to implement these orders and to render this vital element of distributive justice meaningful for the victims. The stronger the Court’s presence on the ground is, the more efficient it will be in gaining the trust and support of victims and communities affected by atrocity crimes. In this sense, I find it positive that the Court has recently reinforced its field offices in countries where it has investigations.

Recently, I participated in the joint monitoring visit to northern Uganda led by the government of Ireland and the Trust Fund for Victims (TFV). The TFV has been implementing assistance programs in northern Uganda for 10 years since 2008, providing medical rehabilitation, psychological rehabilitation, and livelihood support across 18 districts. I find it fortunate for me to be able to participate in such a mission in the early part of my mandate. I was able to confirm that the idea of the Rome Statute of bringing the victims to the center of the Court was a right one and the programs TFV is implementing are indeed very important and worthy ones. I was also deeply impressed by the commitment and dedication of the various people involved in this lofty mission. I will do my best to support the TFV program during my mandate.

You are the first ASP president with extensive experience as an international (criminal) court judge. Based upon your ICTY years, are there elements of the current ICC system that you think the ASP should improve -- for example the procedures to deal with contempt of court, for independent justice to be seen to be done?

Kwon: I do believe that my experience as an international judge may be useful in carrying out my duties as ASP President, particularly as it helps me understand the functioning of the Court and the specific challenges faced by the institution. We must all bear in mind that the Rome Statute system is a work in progress and that the ICC is still a relatively young institution – 15 years since the operations of the Court started. While the ICC is not like other international organizations, it is relatively young and still needs to reach its full potential.

In general terms the ICC system, including the Court and States Parties, are working to improve on several fronts simultaneously such as the efficacy and effectiveness of Court proceedings, an improved legal aid system, cooperation on asset recovery and voluntary agreements, and the issue of information security.

On the proceedings front, I am impressed by the work carried out by the President of the Court, Judge Silvia Fernández de Gurmendi, who in her three-year term has made extensive efforts to enhance the efficiency and effectiveness of the Court by making it the top priority of her Presidency with particular emphasis on expediting the judicial process. To safeguard fair proceedings, equality of arms must be at the centre of the debate regarding any reform of the legal aid system of the ICC.

Regarding asset recovery, the Court must be able to recover assets of convicted persons wherever those assets may be located for the reparations proceedings to be meaningful. This requires the building of effective networks between the Court and national authorities so that we understand each other’s needs and can work together to identify, freeze and seize such assets. In this matter, I would like to express my gratitude to the co-facilitators of The Hague Working Group on cooperation, the Ambassadors of France and Senegal for their work in promoting a better understanding of this issue, and cooperation among States Parties and specialized international and regional organizations.

An additional issue is voluntary agreements with the Court. Vulnerable witnesses participating in the proceedings and their families must be relocated from the source of the threat, sometimes to third States. The Registry’s work in this regard in collaboration with committed States Parties – by entering into framework agreements with the Court to facilitate future relocations – remains crucial.

In this new era of information technology, there are new challenges that emerge as the Court faces situations in more diverse geographical areas. Information security for example is a vital part of the operations of the Court. The Court must have the right practices in place as well as the appropriate equipment in use to ensure that highly sensitive information, for example identities and locations of vulnerable witnesses, is not compromised.

Other issues such as allegations of witness interference and other offenses against the administration of justice remain a pressing concern for the Court, and must be addressed to protect the integrity of its proceedings. Any allegations brought under Article 70 have to follow a consistent and transparent set of procedures ensuring necessary safeguards for the rights of the accused.

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