By Thomas Verfuss
As of the first week of December the world begins to wind down on festivities as diplomats across the world travel to the international city of peace and justice,the Hague Netherlands. Journalists for Justice begins a special coverage of the 17th Assembly of States Parties.In the first installment of the continuing series of stories on the ASP,Thomas Verfuss reports on justice,politics and money as diplomats and state representatives prepare for this year’s ASP.
Hundreds of diplomats, NGO representatives and journalists will gather in the World Forum in The Hague on December 5th for a yearly ritual, the annual session of the Assembly of States Parties (ASP) to the Rome Statute, the founding treaty of the International Criminal Court (ICC). The ASP, where 123 member states can send their delegations, as well as observer states and NGOs, is the managerial oversight and legislative body of the ICC. Delegations will meet for more than a week in the biggest congress centre of The Hague, The Netherlands, the seat of the court.
The annual sessions are held at the end of the year, mostly in The Hague, but sometimes also in New York, at the seat of the United Nations. In between the sessions, the work is prepared in countless meetings of the Hague Working Group and the New York Working Group, about issues like the court’s budget, (state) cooperation, governance (management of the organization) and universality (the idea that all the states in the world must ratify or accede to the Rome Statute, so that accountability for the worst crimes like genocide and war crimes is assured everywhere).
A diplomat of an embassy in The Hague once told Journalists For Justice that when he was posted here he was surprised how many working hours diplomats in The Hague invest into the oversight of the ICC, with sometimes several meetings per week. Other diplomats with experience with other international courts confirm that the ICC is maybe the ‘most-controlled’ international court in the world. When the UN Security Council sets up an international court, it may exercise its oversight by just two meetings per year.
For one ambassador the fact that the ICC, unlike the International Court of Justice also based in The Hague, is not a UN court explains that so much oversight must be done within the Rome Statute system itself: “We have no headquarters in New York that is watching.”
Apart from the practical side, there is also a political side to the intensive oversight effort. A diplomat from a small country says: “The big countries try to influence what the court is doing, not so much directly, but through their many nationals that work in the organs of the court. That is why it is good if the small countries keep a close eye from the ASP.”
As said, the ASP is the oversight and legislative body, and it elects court officials like the judges and the prosecutor and the deputy prosecutor(s). “Oversight” refers to the management of the organization. In its judicial functions, the ICC is independent, as it should be.
This principle of independence has led to debate when the ASP exercised its second, legislative role, the most important instance of which is when it changes the Rules of Procedure and Evidence. The crimes prohibited and punishable under the Rome Statute system are listed and defined in the treaty itself: genocide, crimes against humanity, war crimes and aggression. The treaty can be changed only if the states agree on amendments, vote them during a review conference and then the parliaments of the participating states ratify them – a cumbersome process.
But the procedure by which suspects of ICC crimes are tried, can be changed much more easily: the ASP can change the Rules of Procedure and Evidence. This can be seen as an interference in ongoing trials – changing the rules of the game when the game has already started. It happened when the Kenya cases at the ICC were still active and the ASP loosened the rule obliging the accused to be present at trial, in order to accommodate vice-president Ruto who said he was needed in Nairobi and could not sit at this trial in The Hague all the time, as the rules prescribed. Some saw this step as unacceptable interference of the political/diplomatic world in the judicial world.
One “headache item” at every year’s ASP is the budget for next year. Unlike temporary international tribunals for specific countries like Yugoslavia, Rwanda and Sierra Leone, the permanent ICC gets more and more countries (“situations”) in its dock, requiring new investigative capacities. But diplomats from important western countries are sent into budget negotiations with instructions from their capitals to bear in mind the principle of “zero growth” for the budgets of international organisations. The lack of means for the Office of the Prosecutor means that countries like Georgia can remain in the limbo of “preliminary investigation” and then investigation without visible results for years, causing great frustration for the victims.
Another factor of frustration is cooperation. The court has been described as a body without arms and legs, because it has no police force of its own. It is basically just an office building in The Hague – and a detention centre in Scheveningen, where the suspects, once apprehended, are held during trial and appeal. But to have trials, suspects must be apprehended in the first place by states parties and their police forces. In a year or two, the ICC may find itself with little or no courtroom activity, while there are lots (15 known, others may be secret) of outstanding arrest warrants.
States will have to discuss how to hold each other to account as far as cooperation duties are concerned. Article 112 of the Rome Statute only states that the ASP shall “consider” questions relating to non-cooperation. The possibility of sanctions is not explicitly mentioned. When in other organisations like the UN the rules are violated and the internal mechanisms don’t lead to the sanctions stage – like when Russia annexed the Ukrainian peninsula of Crimea – groups of UN members decided in other fora to impose sanctions on Moscow. In the case of the ICC, the political will does not seem to be there to impose sanctions for non-cooperation – economic and strategic considerations are clearly more important.
For many problems, there is no solution in sight, but one other headache issue that caused lots of concern two years ago, seems to be off the agenda now: the threat of a “mass withdrawal” of African states. Only Burundi has actually done it; in other countries that were considering withdrawal, like South Africa, the matter is not actively on the legislative agenda. As one ambassador from an African country who does not want to be named, puts it: “We do not pursue withdrawal any more. We prefer to watch the system from within.”