By Thomas Verfuss
On the fringes of the 17th Assembly States Parties, Journalists For Justice (JFJ) exclusively interviewed President O-Gon Kwon about his fist year at the helm of the political organisation responsible for the Rome Statute, and its offspring, the International Criminal Court.
Q:You said in your first interview with Journalists For Justice (JFJ) after you took office last year that you would pursue universality as a priority. Unfortunately, there have been no new ratifications or accessions since El Salvador became a state party in March 2016. Are you hopeful that there will be new states joining the Rome Statute system any time soon, especially now as it is once again been threatened by powerful forces? Has your recent visit to Ukraine, where you met parliamentarians from all over the world, taken the process forward? Talking about universality on a very much more positive note: On the other hand, the much feared “mass withdrawal” of (especially African) states has not happened. Some credit your predecessor for this. Are there other factors that have played a role in this development?
Achieving universality is a crucial objective to help strengthen the legitimacy and effectiveness of the Court. Part of my diplomatic mission as President of the Assembly of States Parties (ASP) includes the promotion of the Rome Statute and encouraging new states to join. Indeed, I have made universality, particularly in the Asia-Pacific – my home region – one of my main priorities during my tenure. I have done so by reaching out to states that have not yet joined the Court and promoting and defending the Rome Statute system in any way I can – be it in bilateral talks with high-level government officials, presenting at international conferences and other venues, or via statements, press releases, and interviews such as this one. However, you should understand that convincing governments to ratify the Rome Statute is a complex, demanding, long-term process with many variables affecting the outcome. Particularly in an international environment increasingly characterized by protectionism, the rise of populism and extremism, as well as increased devastating violent conflicts. This is why the support of States Parties, international and regional organisations, and civil society is crucial for this endeavour. I would like to thank in particular Parliamentarians for Global Action (PGA) for their support in this respect. I am impressed by their efforts to mobilise parliamentarians from around the globe, to explain the work of the ICC and promote ratification of the Rome Statute.
The ICC has a global mandate — but not yet universal participation. Lack of universality means that the Court, due to its treaty limitations, remains unable to address every mass international crime and cannot yet protect victims equally everywhere around the world. Some 70-odd states are still not parties to the Rome Statute. On the one hand, major global and regional powers, including three of the five permanent members of the UN Security Council, have not yet ratified the Rome Statute, and on the other hand, some regions of the world are still largely under-represented. Unfortunately, this situation has regrettably generated negative perceptions of selective justice and double standards, making the Court vulnerable to criticism, particularly towards its work on the African continent. In this respect, let me emphasize the fact that the African support has been instrumental for the creation of the ICC. Senegal was the first state to ratify the Rome Statute, and many African states followed so that today 33 African countries are part of the ICC. It is true that 10 out of the 11 situations where the ICC has opened investigations concern African countries. Five of these situations were referred to the Prosecutor by the countries themselves (namely Mali, Central African Republic I & II, Uganda, and Democratic Republic of Congo).
Of the other situations, two referrals were made by the Security Council (Libya and Darfur/Sudan) and the remaining three situations were initiated by the Prosecutor’s proprio motu powers (Burundi, Cote d’Ivoire, and Kenya).
Indeed, in this respect I commend the efforts of my predecessor, Minister Sidiki Kaba, who tirelessly worked with his African counterparts to support the ICC. Bearing this in mind, the recent two withdrawals from the Statute (Editor’s note: Burundi and Philippines) are most unfortunate. Such developments generate regional segmentation and send the wrong signal to the international community. But this can be avoided. All States Parties have the opportunity to voice their concerns before the Assembly. It is important to engage in a frank and constructive dialogue on this matter. In my capacity as President of the ASP, I have and will continue to reach out to many countries in the world and to actively engage and listen to the different views and concerns that may exist in order to facilitate workable solutions for the strengthening of the Court and the broader system of international criminal justice. I urge the concerned states to return to the ICC community, as we have witnessed in the Gambia case. In the end, withdrawals from the Rome Statute affect our collective efforts towards fighting impunity. In fact, the strength of the system relies on the rich diversity of the Court’s membership. The ICC is apolitical, a court of law whose jurisdiction is complementary to domestic jurisdictions. This court of last resort does not work in isolation: it is encouraged not only by the strong support and cooperation of the 123 States Parties but also by the support it receives from other States and international and regional organizations, as well as civil society, in carrying out its mandate.
Q: In 1 or 2 years’ time, there may be little courtroom activity left: Gbagbo/Blé Goudé may soon end in the partial or total acquittal of one or two of the accused. Witness security may jeopardize the confirmation of charges in Al Hassan. The Ongwen trial will be over one day. Charges in Yekatom still need to be confirmed. Little or no courtroom activity will influence the budget discussions. Meanwhile, there are 15 openly charged suspects at large. A couple of states openly defy their obligation to execute arrest warrants.
The ICC, as a permanent international judicial institution, was created not with a short-term vision in mind, but with the long-term ambition to fight impunity. As a former international judge (Editor’s note: Kwon presided over the Karadzic trial at the ICTY, after having served on the bench of the Milosevic case) I understand the challenging nature of complex international criminal cases. I will however refrain from commenting on ongoing cases currently being adjudicated at the Court. It is nonetheless worth noting that the Court relies on the cooperation of states, for example to carry out arrests of suspects and surrender them to the Court. We regrettably still have 15 suspects at large but this does not mean that the Court cannot advance its work. As a matter of fact, just a couple of days ago, Mr. Alfred Yekatom, suspected of war crimes and crimes against humanity in the Central African Republic, appeared before the Court after being arrested and surrendered to the Court following a warrant of arrest that was issued just a few days prior to his arrest (Editor’s note: A few days prior to his formal arrest by the ICC. Yekatom was taken into custody by the CAR authorities, one day before the Office of the Prosecutor requested an ICC arrest warrant from judges at The Hague). This is a clear example of how the system of cooperation within the Rome Statute system can generate results.
With regard to the budget, it is only logical that the courtroom activities influence the budget discussions. This is why budget discussions take place on a yearly basis. States Parties decide together at the Assembly on the budget for the Court, based on the needs of the Court, and with the advice of the Committee on Budget and Finance – a mechanism of the Assembly for the budgetary and financial review and monitoring of the resources of the ICC and of the Assembly itself. The budget has always been adopted by consensus among States Parties, and the Court has adapted to the needs and available resources.
With regard to non-cooperation, indeed this is a serious challenge for the Court, as it affects its ability to carry out its mandate in full. In my capacity as President, I engage with relevant stakeholders on highlighting the importance for states to spare no effort in executing the arrest warrants issued by the Court, but also on the strengthening and implementation of measures and procedures by States Parties and the Assembly to prevent instances of non-cooperation. For example, I participated together with Prosecutor Fatou Bensouda at the Arria-formula meeting (Editor’s note: Very informal, confidential background consultations on a given topic) held at the UN Security Council in June this year. This was the first time a President of the Assembly presented at such a meeting. I recalled that cooperation is one of the main pillars of the Rome Statute system, without which the Court cannot function properly. If we want the Court to be effective, States Parties must help fulfil its noble mission to fight against impunity, and in this regard, the Security Council has the potential to be a major positive force for states to take action.
Q: According to art. 112, 2. (f) of the Rome Statute, the ASP shall “consider [..] any question relating to non-cooperation”. Do you envisage to push for more pressure on non-cooperating states? Some people talk about sanctions, inside or outside the Rome Statute system. Talking about one concrete instance of non-cooperation: A Pre-Trial Chamber referred Kenya to the ASP for non-cooperation in one of the cases involving its nationals in 2016. What progress has this referral made, and can we expect a decision at this ASP? Other countries — such as South Africa and Jordan – have been sanctioned (or come close to being sanctioned) for failing to arrest fugitives, souring relations with the Court. What alternative strategy do you or the ASP Bureau propose for dealing with this sticky situation? Not only arrests are a non-cooperation problem: the Court has few countries who want to accept provisionally released or acquitted persons. As a former international judge, you will defend the principle that it is up to judges to decide when someone must be released, and not up to immigration bureaucrats. Are you actively promoting voluntary cooperation agreements on these issues? A very high ICC official recently described witness relocation as a “major bottleneck”. Will you be pushing for more voluntary agreements on this issue as well?
Indeed, decisions of the Court on non-cooperation findings in relation to Djibouti, Uganda and Kenya were referred to the ASP in 2016. It is also true that in 2017 the Court issued a Decision on the non-compliance (under article 87(7) of the Rome Statute) by South Africa with the request by the Court for the arrest and surrender of President of Sudan Omar Al-Bashir, and a decision is still pending concerning a similar situation with regard to Al-Bashir’s visit to Jordan last year.
As I mentioned in the previous answer, I also have a role to play, by engaging in constructive dialogues such as the one we had in July at the UNSC Arria formula meeting. We must remain vigilant, active and engaged; this is no easy matter. In fact this represents one of the main challenges of the Court. As a judicial institution, the ICC does not have its own police force or enforcement body, and it cannot but rely on cooperation from countries worldwide for support. In order to ensure efficient and effective cooperation in all cases, it is paramount that States have national laws establishing clear procedures and a well-defined division of responsibilities between the ICC and the various national authorities. In addition the Assembly of States Parties also has a role to play. In this regard, and in accordance with article 112 (2)(f) of the Rome Statute,in 2011 the Assembly adopted procedures relating to non-cooperation. These procedures are aimed at enhancing the implementation of the Court’s decisions. The response by the Assembly can be formal or informal, be it via the Court referring the matter to the Assembly or the Assembly responding at the diplomatic or political levels respectively. The Assembly may certainly support the effectiveness of the Rome Statute by deploying political and diplomatic efforts to promote cooperation and to respond to non-cooperation. These efforts, however, may not replace judicial determinations to be taken by the Court in ongoing proceedings. The Bureau of the Assembly has had non-cooperation focal points that meet in New York and report to the Assembly each year. The focal points on non-cooperation engage in consultations in order to issue recommendations to strengthen non-cooperation procedures and find innovative solutions for their implementation. During this ASP the focal points will recommend that the Assembly adopt the updated “Assembly Procedures on Non-Cooperation”, and the updated “Toolkit for the implementation of the information dimension of the Assembly procedures relating to non-cooperation”.
In addition, there are also other highly important areas where the Court needs the voluntary cooperation of States. These include the relocation of witnesses under threat, the enforcement of sentences, and hosting accused persons on interim release, or acquitted persons. For the Court to be able to conclude such agreements, the state in question needs to have the necessary legislation in place. In this respect, I would like to commend the efforts of some states in signing these voluntary agreements. This year for example, the Court concluded two agreements with the Argentine Republic on Interim Release and Release of Persons respectively, making this country the first to sign all voluntary agreements with the Court. I use this occasion to call on all States Parties to follow Argentina’s example.