COALITION FOR THE - iccnow.org · COALITION FOR THE . INTERNATIONAL CRIMINAL COURT . CICC REPORT ....

C O A L I T I O N F O R T H E I N T E R N A T I O N A L C R I M I N A L C O U R T

C ICC REPORT

ON THE SIXTH SESSION OF THE ICC ASSEMBLY OF STATES PARTIES

30 NOVEMBER - 14 DECEMBER 2007 & 2 – 6 JUNE 2008 NEW YORK, USA

AUGUST 2008

* This document was compiled by the CICC Secretariat, based on reports from CICC caucuses, teams and experts, as well as on official ASP documents on each respective subject and should

not be taken to represent the views of all Coalition members.

ASP6 REPORT COALITION FOR THE INTERNATIONAL CRIMINAL COURT

2

COALITION FOR THE

INTERNATIONAL CRIMINAL COURT

I. INTRODUCTION ...................................................................................3

II. GENERAL DEBATE ...............................................................................7

III. JUDICIAL ELECTIONS...........................................................................8

IV. ELECTION OF THE REGISTRAR ............................................................. 11

13

14

15

18

27

31

34

38

40

41

43

46

48

50

52

54

55

IV. ELECTION OF THE ASP PRESIDENT........................................................

IV. ELECTIONS OF THE MEMBERS OF THE COMMITTEE ON BUDGET AND FINANCE ..

V. TRUST FUND FOR VICTIMS...................................................................

VI. THE CRIME OF AGGRESSION ................................................................

VII. REVIEW CONFERENCE.......................................................................

VIII. COOPERATION ...............................................................................

IX. BUDGET AND FINANCE.......................................................................

XI. LEGAL AID......................................................................................

XI. STRATEGIC PLAN .............................................................................

XII. FAMILY VISITS OF INDIGENT DETAINEES ................................................

XII. OUTREACH ....................................................................................

XIII. RECRUITMENT ...............................................................................

XIV. ICC PREMISES ................................................................................

XV. UNIVERSALITY OF THE ROME STATUTE .................................................

XVI. OVERSIGHT MECHANISM ...................................................................

XVII. OMNIBUS RESOLUTION ....................................................................

XVIII. DECISIONS CONCERNING DATES AND VENUES OF THE NEXT ASP SESSIONS....


3

I. INTRODUCTION

1. This summary was written by the Coalition Secretariat. The Coalition Secretariat would like to thank: the teams of students from the The Council for American Students in International Negotiations for their production of daily minutes of the formal plenary and working group meetings of the ASP, which are also available through the Coalition; team leaders Alison Smith (NPWJ), Jutta Bertram Nothnagel (Union Internationale des Avocats), Mariana Pena (Fédération Internationale des Ligues des Droits de l’Homme), Jonathan O’Donohue (Amnesty International), Marie Pierre Poulain (Avocats sans Frontières), Lars van Troost (Amnesty International Netherlands), Brigid Inder (Women’s Initiative for Gender Justice) and David Donat Cattin (Parliamentarians for Global Action);1 all members of the teams who made the production of team reports and the Coalition’s report possible; and the Secretariat of the Assembly of States Parties for the summary proceedings and the list of documents. The Coalition Secretariat takes all care to ensure accuracy. Corrections and additions are welcome.

2. The Regular Sixth Session of the Assembly of States Parties (ASP) was held in New

York, at the UN Headquarters. The Resumed Sixth Session of the ASP was held in New York, at the UN Headquarters, on 2-6 June 2008

3. The Seventh Session will take place in The Hague on 14 - 22 November. 4. More than 200 representatives from non-governmental organisations from all parts

of the world attended the sixth session of the ASP. The continued commitment of NGOs to invest time and resources in the ASP is a clear indication of the sustained support for the Rome Statute system. Although not always of the same opinion, the dialogue between the participating NGOs, on the one hand, and Court, ASP Secretariat and States Parties officials, on the other, was constructive and informative. Various States Parties continued to invest time and resources in crucial side events, with the intention of building capacity, seeking dialogues and exchanging information.

5. The Assembly of States Parties met for the sixth session in an atmosphere of

anticipation and intense activity at the Court on its first cases and against a background of the advanced maturation of the ICC. The date for the confirmation of charges hearing for the second detainee, Germain Katanga had been set for

1 While the work of the teams reflects the positions of those Coalition members most active on particular

issues, their work cannot be construed to represent the views of all organisations/members of the CICC. Since the Rome Diplomatic Conference, Coalition members have organised themselves into teams, one to follow each working group or theme of the intergovernmental process. Coalition Teams now follow issues addressed by the Assembly of States Parties or its subsidiary mechanisms and by the International Criminal Court. Teams provide a forum within which interested members discuss issues, follow developments, elaborate relevant research and positions in response to developments, and elaborate and implement advocacy strategies in relation to those positions. All Coalition members are welcome to join any teams and all Coalition members are regularly apprised of the work of the teams.


4

February. While it was clear at this and the resumed session that the ICC has become a truly established international organization, many issues remain for the Court and the ASP to work on: much more has still to be done to ensure effective and sustained cooperation and support; the process towards the building of the permanent premises for the Court has only started; the ASP had yet to organize itself fully and to decide on its subordinate bodies; and preparations for the Review Conference are underway.

6. During the regular and resumed session, the Prosecutor reported for the sixth and

seventh time to the UN Security Council on his investigations in the Darfur situation. During the resumed session, the Prosecutor updated the Council on the progress of his second and third cases in Darfur, and explored possible Council reactions to the Sudan’s non cooperation with the Court and non compliance with UN Security Council Resolution 1593. In this respect, a civil society campaign called the Justice for Darfur developed during this time period to advocate for the arrest of the two Sudanese individuals, Ahmed Harun and Ali Kushayb, under ICC arrest warrant.

7. The sixth session continued to demonstrate a readiness of States Parties to engage

in issues beyond the Court’s most urgent operational issues, as well as a willingness to think more long-term and to accept the responsibility of the ASP and States Parties for the implementation of the Rome Statute in general. This was a trend set by the fourth and fifth session. As will be demonstrated below in this report, the ASP also indicated its commitment to remain seized of a number of political and strategic issues of key concern both to the Court and to the Rome Statute system. Such issues include cooperation, review conference, legal aid, strategic planning and outreach. Some of this progress was however somewhat clouded by the hesitant approach of states regarding concrete commitments, e.g. on cooperation, and the inability of the UN Security Council to take action in response to the Prosecutor’s report on the Sudan situation.

8. The work of the ASP is governed by the Bureau, which comprises a President, two

Vice-Presidents and 18 members elected by the ASP for three-year terms (for the members of the Bureau, see below). The work of the ASP is also facilitated by various formal and informal subsidiary mechanisms active in between the meetings of the Assembly, including the Committee on Budget and Finance, the two Working Groups of the Bureau (one in New York and one in The Hague) and the “Friends of the ICC” (informal groupings both in New York and The Hague).

9. The Bureau and the Working Groups may also appoint Coordinators and

Facilitators to prepare issues in advance of meetings. As a follow-up to the fifth ASP session, the Bureau appointed coordinators in order to hold consultations and facilitate work on some subjects within the ASP’s mandate prior to the sixth meeting. The same persons, for the most part, also acted as formal or informal coordinators during the ASP session. Other coordinators were appointed for the purpose of the meeting only. Under each relevant Chapter below, you will find reference to these coordinators.


10. The fact that the regular session took place over a period of eleven working days enabled States to avoid too many parallel meetings behind closed doors. This change had two significant consequences: States represented by smaller delegations could follow most working groups and discussions; and non-anglophone delegations could participate more constructively since interpretation was provided at most meetings. Nevertheless, the Coalition noted with regret that, in comparison with the fifth session, an increased number of parallel informal meetings were announced with short notice and/or held behind closed doors without interpretation facilities.

11. The meetings began with Minister Bruno Stagno Ugarte from Costa Rica, President

of the ASP, opening the session. The President explained how the ASP would continue to organise itself into Working Groups.

12. At the regular session, the President of the ICC, Judge Philippe Kirsch, provided a

report on the Court’s activities since the last ASP session. The Prosecutor of the ICC, Mr. Luis Moreno-Ocampo, also presented a report on the activities of the Office of the Prosecutor. The Executive Director of the Trust Fund for Victims (TFV), André Laperrière speaking on behalf of Mme Minister Simone Veil, Chair of the Board of the Directors, reported on the recent third meeting of the TFV Board and summarized the Board’s activities in 2007. ASP President Stagno Ugarte then presented a report on the work of the ASP Bureau and its Working Groups.

13. The reports of the various organs and bodies were followed by the General

Debate (see below). CICC reports of each day’s events during the sixth session can be found at: http://www.iccnow.org/?mod=browserdoc&type=21&module=1054

14. As in previous years, the NGOs coordinated

their activities through the Coalition and a number of side-events were held. All the CICC teams, caucuses and working groups took advantage of the diverse participation and met (around Budget and Finance, Communications and Outreach, Gender Justice, Crime of Aggression, Review Conference, Trust Fund for Victims, Victims issues, Premises, Legal Representation, etc) with a frequency depending on the issues before them. There were also daily regional NGO meetings with governments on ratification and implementation, as well as on developments in the situation countries.

CICC Members attending a Plenary Meeting of the Sixth ASP. Credit: CICC

5


15. There were also a number of meetings with ICC officials and a press briefing on state and multilateral cooperation with the ICC. During the press briefing, which was presided by William Pace (CICC), statements were given by Richard Dicker, Director of Human Rights Watch’s International Justice Program, Osman Hummaida, Sudanese activist and Director of the INSAF Centre for Justice and Peace, Mohammed Ndifuna, National

Coordinator of HURINET-U and Chair of the steering committee of the Ugandan Coalition for the ICC.

William R. Pace, CICC Convenor, Osman Hummaida, Director of the Sudan Organisation against Torture (SOAT), Richard Dicker, Director of the International Justice Program at Human Rights Watch and Mohammed Ndifuna, National Coordinator of HURINET-U (l to r). Credit: CICC

6


II. GENERAL DEBATE 16. This second formal General Debate took place

in the beginning of the sixth session in New York (the statements of the non-governmental organisations were however postponed at the last minute and were held only on Friday 7 December). This provided an opportunity for States Parties, observer States and NGOs to express their concerns and priorities, but also their commitment vis-à-vis the Rome Statute system including, but far from limited to, issues included in the ASP agenda. These statements elevated the debate at the ASP and provided the Court and the Assembly with guidance about its general direction as well as setting the framework for the discussions to follow on various future agenda items. A large number of States (51) did contribute to the general debate, and addressed a broad number of areas beyond the immediate agenda of the ASP, including issues of cooperation, budget, strategic plan, outreach, the peace and justice debate, ratification and implementation, recruitment, gender issues, review conference and the Trust Fund for Victims. The CICC has compiled a chart of the statements according to these particular issues. This chart is available upon request from the CICC Secretariat.

Prince Zeid Ra’ad Zeid Al-Hussein, Jordan's Permanent Representative to the United Nations, presenting Jordan’s statement to the sixth ASP. Credit: CICC

The statements are available on the CICC website: http://www.iccnow.org/?mod=browserdoc&type=13&module=1054

17. Statements were also made by the CICC and by representatives of the following non-governmental organisations: Amnesty International; Human Rights Watch; Indonesian Association of Families of the Disappeared; Ligue pour la Paix et les Droits de l’Homme Coordination Nationale (DRC); Fédération Internationale des Ligues des Droits de l'Homme; Caritas France, National Coalition for the ICC - Central African Republic; INSAF Centre for Justice and Peace (Sudan) and Human Rights First.

On 7 December2007, NGO Representatives presented their declarations to the sixth ASP. Credit: CICC

The statements are available on the CICC website: http://www.iccnow.org/?mod=browserdoc&type=21&module=1054

7

http://www.iccnow.org/?mod=browserdoc&type=13&module=1054

http://www.iccnow.org/?mod=browserdoc&type=21&module=1054


III. JUDICIAL ELECTIONS

18. The 2007 judicial election served to

replace three judges who resigned prior to the end of their terms: Judge Maureen Harding Clark of Ireland, Judge Karl T. Hudson-Phillips of Trinidad and Tobago and Judge Claude Jorda of France.

19. By the end of the nomination period,

six candidates were nominated: Mr. Daniel David Ntanda Nsereko of Uganda (List A), Ms. Jean Angela Permanand of Trinidad and Tobago (List A), Ms. Fumiko Saiga of Japan (List B), Mr. Bruno Cotte of France (List A), Ms. Graciela Dixon of Panama (List A) and Mr. Sunday Akinola Akintan of Nigeria (List A) (in the order they were nominated). The candidacy of Mr. Sunday Akinola Akintan of Nigeria was withdrawn at a later stage.

20. The procedures for nominations of candidates, elections and filling judicial

vacancies are outlined in Articles 36 and 37 of the Statute and Resolution ICC-ASP/3/Res.6. In addition, two note verbales from the ASP Secretariat were issued on 16 April and 1 June 2007 and a memo on the elections was issued on 2 October 2007.

21. The Rome Statute establishes different criteria for States Parties to consider

when voting. Candidates can be nominated on list A (criminal law and criminal trial experience) or list B (expertise in the field of international law) depending on their qualifications. The Statute provides that there must be at least nine judges from list A and at least 5 judges from list B. With the departures of three list A judges, the number of list A judges stood at 7, and 8 for list B. According to the election procedure, States would have to vote for two judges from list A (9 minus 7 = 2). This minimum voting requirement remains until it has been fulfilled. There was no minimum voting requirements for list B judges since the minimum of five had already been reached.

22. CICC letters were sent to all States Parties to encourage them to nominate or

support the nomination of highly qualified candidates through a transparent process. Questionnaires on qualifications and expertise were submitted to all six judicial candidates. Interviews were held prior to the ASP. The Coalition’s Elections Team followed and gave input to developments.

8


Election Results

23. On Friday, 30 November 2007, during the first round of elections, two of three new ICC judges were elected by the requisite two-third majority of the 105 States Parties present and voting (70 votes): Ms. Fumiko Saiga Saiga of Japan (List B) with 82 votes and Mr. Bruno Cotte of France (List A) with 79 votes.

24. The three remaining candidates on the

ballot received the following number of votes and were not elected: Mr. Daniel David Nsereko of Uganda (List A) with 54 votes, Ms. Jean Angela Permanand of Trinidad and Tobago (List A) with 50 votes and Ms. Graciela Dixon of Panama (List A) with 45 votes.

25. On the same day during the second round,

no judge was elected by the requisite two-third majority of the 104 States Parties present and voting (69 votes, 1 invalid). The three remaining candidates on the ICC ballot received the following number of votes: Mr. Daniel David Nsereko of Uganda with 53 votes, Ms. Jean Angela Permanand of Trinidad and Tobago with 26 votes and Ms. Graciela Dixon of Panama with 25 votes.

Judges Fumiko Saiga, Daniel David Ntanda Nsereko, and Bruno Cotte (l. to r.) were formally sworn in on 17 January 2008 at the seat of the International Criminal Court. Credit: ICC-CPI/Marco Okhuizen

26. On Monday, 3 December 2007, during the third round, no ICC judge was elected

by the requisite two-third majority of the 102 States Parties present and voting (68 votes). The three remaining candidates on the ICC ballot received the following number of votes: Mr. Daniel David Nsereko of Uganda with 60 votes, Ms. Jean Angela Permanand of Trinidad and Tobago with 21 votes and Ms. Graciela Dixon of Panama with 21 votes.

27. Following the third round, Trinidad and Tobago announced the withdrawal of

Justice Permanand's candidacy.

28. On the same day during the fourth round, the third ICC judge was elected by the requisite two-third majority of the 102 States Parties present and voting (68 votes): Mr. Daniel David Nsereko of Uganda with 74 votes. Ms. Graciela Dixon of Panama received 28 votes.

29. After the election of all three judges, Ambassador Saiga was selected by lot to

serve the remaining period of Judge Jorda’s term (until 10 March, 2009) and will be eligible for re-election for an additional 9-year term. Judge Cotte and Professor Nsereko will serve the remaining 4 years of Judges Clark’s and Hudson-Phillips’ terms, both who were serving nine-year terms expiring on 12 March 2012.

9


10

Relevant documents Assembly of States Parties to the ICC, Elections of the Judges to the ICC, http://www.icc-cpi.int/library/asp/Election_of_Judges.3Dec.2030.pdf Election of Judges of the ICC: Frequently Asked Questions, 28 November 2007, http://www.icc-cpi.int/library/asp/Fact_sheet._Judges._28_November_2007_11.00.pdf Election of judges to fill three judicial vacancies of the International Criminal Court: Guide for the Election, ICC-ASP/6/24, 20 November 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-24_English.pdf Election of judges to fill three judicial vacancies of the International Criminal Court, ICC-ASP/6/15 & ICC-ASP/6/15/Add.1, 2 October 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-15_English.pdf; http://www.icc-cpi.int/library/asp/ICC-ASP-6-15-Add1_English.pdf; http://www.icc-cpi.int/library/asp/ICC-ASP-6-15-Add.1-Corr.1_English.pdf Judicial candidate responses to CICC questionnaires and interviews (CICC website), http://www.iccnow.org/?mod=electionjudges2007 Nomination and election of judges, Note verbale, ICC-ASP/6/S/10, 1 June 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-S-10_judges_election.ENGLISH.pdf Nomination and election of judges, Note verbale, ICC-ASP/6/S/9, 16 April 2007, http://www.icc-cpi.int/library/asp/ICC-6-S-9_English.pdf Procedure for the nomination and election of judges of the International Criminal Court, ICC-ASP/3/Res.6, 10 September 2004, http://www.icc-cpi.int/library/asp/ICC-ASP-3-25-III_English.pdf

http://www.icc-cpi.int/library/asp/Election_of_Judges.3Dec.2030.pdf

http://www.icc-cpi.int/library/asp/Fact_sheet._Judges._28_November_2007_11.00.pdf

http://www.icc-cpi.int/library/asp/Fact_sheet._Judges._28_November_2007_11.00.pdf

http://www.icc-cpi.int/library/asp/ICC-ASP-6-24_English.pdf




http://www.icc-cpi.int/library/asp/ICC-ASP-6-15-Add1_English.pdf


http://www.icc-cpi.int/library/asp/ICC-ASP-6-15-Add.1-Corr.1_English.pdf

http://www.icc-cpi.int/library/asp/ICC-ASP-6-15-Add.1-Corr.1_English.pdf

http://www.iccnow.org/?mod=electionjudges2007

http://www.icc-cpi.int/library/asp/ICC-ASP-6-S-10_judges_election.ENGLISH.pdf

http://www.icc-cpi.int/library/asp/ICC-6-S-9_English.pdf

http://www.icc-cpi.int/library/asp/ICC-ASP-3-25-III_English.pdf

http://www.icc-cpi.int/library/asp/ICC-ASP-3-25-III_English.pdf


11

IV. ELECTION OF THE REGISTRAR 30. The five year term of the first and current Registrar of the ICC, Mr. Bruno

Cathala expires on 3 July 2008. In order to fill this important post, the Court had, previous to the ASP session, performed an initial selection process through the standard recruitment channels of the ICC. This selection process, led by the Presidency of the ICC, resulted in a short list of 10 candidates2 which the President of the ICC submitted to the ASP by a letter dated 5 October 2007. In the letter, the Presidency requested the ASP to make any recommendations, in accordance with article 43 of the Statute and rule 12 of the Rules of Procedure and Evidence.

31. At the 6th Session, the ASP recommended with consensus that the judges take

into account, among other, the following criteria: the highest standard of efficiency, competency and integrity; representation of principle legal system, equitable geographical representation, gender balance, legal expertise on specific issue; managerial skills; familiarity with intergovernmental processes and diplomatic skills; national of a State Party; different regional groups for Registrar and Deputy Registrar; etc.

32. In addition to the official recommendations, the ASP noted that a number of

delegations recommended, during the discussions, that the judges should first appoint the Registrar and then the Deputy Registrar, allowing the new Registrar to be involved in the selection of the Deputy.

33. As part of its campaign for fair and transparent elections, the CICC had asked

each candidate to reply to a questionnaire, in order to promote transparency in the process by making candidates’ qualifications more accessible and by giving each candidate an opportunity to expand on his or her experience. Five of the candidates responded extensively to the questions (Ms. Ciaravolo, Mr. Dieng, Mr. Hocking Mr. Rackwitz and Mr. Zimmer) and their responses are available on the CICC website.

Relevant documents ASP Recommendations concerning the election of the Registrar of the International Criminal Court (p. 80) http://www.icc-cpi.int/library/asp/OR_Vol_I_PartIII_Resolutions_and_Recomm_English.20-12-07.094.clean.pdf 2 Ms. Silvana Arbia (Italy); Mr. Richard Chetwynd (United Kingdom); Ms. Annunziata Ciaravolo (Italy); Mr. Adama Dieng (Senegal); Mr. John Hocking (Australia); Ms. Blanca Pastor Borgonon (Spain); Ms. Kalyani Pillay (South Africa); Mr. Klaus Rackwitz (Germany); Mr. Rama Rao Sankurathripati (India); and Mr. Markus Zimmer (Switzerland and the United States of America).

http://www.icc-cpi.int/library/asp/OR_Vol_I_PartIII_Resolutions_and_Recomm_English.20-12-07.094.clean.pdf




12

Election of the Registrar of the International Criminal Court, Note by the Secretariat, ICC-ASP/6/16, 12 October 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-16_reissued_English.pdf CICC Website about the Office of the Registrar, including the candidates’ responses to the CICC Questionnaire: http://www.iccnow.org/?mod=registrar ICC Website on the functions of the Registrar: http://www.icc-cpi.int/registry/regfuncs.html

http://www.icc-cpi.int/library/asp/ICC-ASP-6-16_reissued_English.pdf

http://www.iccnow.org/?mod=registrar

http://www.icc-cpi.int/registry/regfuncs.html


IV. ELECTION OF THE ASP PRESIDENT

34. The Bureau had asked Ambassador Rosemary Banks (New Zealand) to facilitate informal consultations with States Parties on the election of the President of the Assembly for the 7th to 9th sessions. During the ASP, she informed the Bureau that there appeared to be consensus support for the election of Ambassador Christian Wenaweser, Permanent Representative of Liechtenstein to the United Nations, as the next President of the Assembly. The Bureau then recommended to the Assembly the election of Ambassador Wenaweser as the next President and the ASP elected him as its new Assembly President for the 7th to 9th sessions. He will be succeeding Ambassador Bruno Stagno Ugarte of Costa Rica at the beginning of the seventh session.

Ambassador Christian Wenaweser. Credit ICC-CPI/ASP

35. Ambassador Wenaweser currently chairs the Special Working Group on the

Crime of Aggression.

13


14

IV. ELECTIONS OF THE MEMBERS OF THE COMMITTEE ON BUDGET AND FINANCE

36. The election of six of the Assembly’s Committee on Budget and Finance's

members took place at the sixth session. The following candidates were elected to serve in the Committee for a period of three years: David Banyanka (Burundi); Carolina Fernández Opazo (Mexico); Gilles Finkelstein (France); Juhani Lemmik (Estonia); Gerd Saupe (Germany); Ugo Sessi (Italy).

37. The distribution of seats for the election was as follows: African States (1 seat);

Eastern European States (1 seat); Group of Latin American and Caribbean States (1 seat); and Western European and Other States (3 seats). With the withdrawal of the candidatures of Mr. Peter Lovell (United Kingdom), Mr. Rodrigo Yanez Pilgrim (Venezuela) and Ms. Rossette Nyirinkindi (Uganda) the number of nominees per region equalled the number of seats to be elected; thus no ballot was necessary and the members were elected by acclamation.

38. As part of its campaign for fair and transparent elections, the CICC has asked

each candidate to reply to a questionnaire, in order to promote transparency in the process by making candidates’ qualifications more accessible and by giving each candidate an opportunity to expand on his or her experience. Three initial candidates responded (Mr. Lemmik, Mr. Lovell and Ms. Nyrinkindi) and their responses are available on the CICC website.

39. To guide states parties in nominating candidates for the forthcoming and future

elections of Committee members, the Coalition’s Budget and Finance Team has also prepared a set criteria based on both the resolutions governing the nomination and election of the Committee members and the work of the Committee in its first years. This paper is also available on the CICC website.

Relevant documents CICC website on the CBF elections (incl. candidates’ answers to CICC questionnaire) http://www.iccnow.org/?mod=electionasp2007 CICC Recommended criteria for states parties to nominate the highest qualified candidates to the CBF http://www.iccnow.org/documents/CICC_CBF_Nomination_Criteria_English.pdf

http://www.iccnow.org/?mod=electionasp2007

http://www.iccnow.org/documents/CICC_CBF_Nomination_Criteria_English.pdf




V. TRUST FUND FOR VICTIMS Background

40. The mandate of the Trust Fund for Victims is to provide assistance to victims of the crimes under the jurisdiction of the ICC and to their families, either by implementing reparations awards made by the Court's chambers or by supporting assistance projects through voluntary contributions.

41. The work of the Trust Fund is guided by a Board of Directors, which benefits

from the assistance of the Secretariat of the Trust Fund. The members of the Board are Madame Minister Simone Veil from France, His Grace Archbishop Emeritus Desmond Tutu from South Africa, Mr. Tadeusz Mazowiecki from Poland, Mr. Arthur N. R. Robinson from Trinidad and Tobago and Mr Bulgaa Alterangerel from Mongolia.

Issues Report of the Board of Directors of the TFV

42. Following a statement delivered by the Executive Director of the Trust Fund Secretariat on behalf of Madame Simone Veil, the Assembly considered the Report on the Activities and Projects of the Board of Directors of the Trust Fund for Victims for the period 1 July 2006 to 30 June 2007 and took note of the report.

15

General Debate

43. During the General Debate a number of States Parties (Belgium, Colombia, Finland, France, Germany, Liechtenstein, Nigeria, Poland, Portugal on behalf of the EU, South Africa, Spain, Switzerland, Trinidad and Tobago, Uganda and the United Kingdom) mentioned the Trust Fund for Victims in their statements and highlighted the importance of its work. Some of the States took the opportunity during the General Debate to pledge funds to the Trust Fund (Liechtenstein, Poland, South Africa, Spain, and the United Kingdom). In addition, Uganda and South Africa in their respective statements also explicitly expressed support for the proposed amendment(s) to the Regulations of the Trust Fund.

Executive Director of the TFV André Laperrière and Grace Archbishop Emeritus Desmond Tutu at the November 2007 Board meeting. Credit: CICC

Omnibus Resolution

44. For the first time, a call for voluntary contributions to the Trust Fund for Victims was included in the Omnibus Resolution (paragraph 45). NGOs had advocated for this inclusion.


16

Amendments to Regulations of the Trust Fund 45. On the basis of a proposal by the Board of Directors and following a short,

uncontroversial discussion during informal consultations, the Assembly decided to amend Regulation 27 of the Regulations of the Trust Fund for Victims. This regulation deals with earmarked funds and states that voluntary contributions from governments cannot be earmarked and that voluntary contributions from other sources may be earmarked by the donor for up to one third of the contribution for an activity or project. The amendment gives some flexibility to accept earmarked funds since it introduces the possibility for the Board of Directors and/ or the Executive Director to accept such funds when they have been raised at the initiative of the Trust Fund. The amendment allows the Trust Fund to adapt to a fundraising reality; many donors need or want to know how their funds will be used.

46. The amendment proposal regarding Regulation 19, which had previously

been withdrawn by the Board of Directors of the Trust Fund, was reintroduced by Uganda. Regulation 19 deals with consultations between the Fund and the Registrar on administrative and legal matters. The proposed amendment aimed at giving greater independence and autonomy to the Trust Fund. However, after some informal discussions, States decided not to amend Regulation 19 at this sixth session considering that the Board had withdrawn the proposed amendment due to a need for more consultations and discussion on the issue.

47. All informal consultations were facilitated by South Africa under the leadership

of Mr. Sabelo Sivuyile Maqungo. Budget for 2008 and vacancy rate

48. The ASP followed the recommendation of the Committee of Budget and Finance and endorsed all the requested resources for 2008, including the position of P3 Field Programme Officer to be based in Kampala, Uganda. As suggested in the budget proposal, the costs for the Kampala position will be offset by eliminating the post of P2 Associate Legal Officer.

49. The exemption from the adjusted vacancy rate for the Trust Fund was,

however, not granted by States (see budget section). The Secretariat of the TFV had requested to be saved from the application of any vacancy rate for new or established posts arguing that all its positions including the P3 Kampala position, had already been recruited and that flexibility does not work for smaller ‘major programmes’ like the Trust Fund. Although States Parties did not approve of an exception for the Trust Fund, they indicated that should problems arise for small major programmes as a result of the application of the vacancy rate during 2008, the Court could revert with proposals for transfers of funds between major programmes at the next session of the Assembly.

Relevant Documents


17

Report to the Assembly of States Parties on the activities and projects of the Board of Directors of the Trust Fund for Victims for the period 1 July 2006 to 30 June 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-11_English.pdf Trust Fund for Victims financial statements for the period 1 January to 31 December 2006, http://www.icc-cpi.int/library/asp/ICC-ASP-6-6_English.pdf Resolution ICC-ASP/6/Res.3, Amendment to the regulations of the Trust Fund for Victims (p. 73) http://www.icc-cpi.int/library/asp/OR_Vol_I_PartIII_Resolutions_and_Recomm_English.20-12-07.094.clean.pdf Comments and Recommendations of the CICC Team for the Trust Fund for Victims, to the Sixth Session of the Assembly of States Parties http://www.iccnow.org/documents/CICC_VTF_Team_Draft_Team_Paper_ASP_6__191107.pdf







18

VI. THE CRIME OF AGGRESSION Background

50. As one of the crimes listed in Article 5 of the Rome Statute, the crime of aggression is under the jurisdiction of the Court but the exercise of jurisdiction remains suspended because the Rome Diplomatic Conference did not reach an agreement on a definition and jurisdictional conditions. Instead, Resolution F of the Final Act requested that the subsequent Preparatory Commission prepare proposals to be presented to the ASP for consideration at a Review Conference. The Preparatory Commission concluded its work in 2002 in the form of a coordinator’s discussion paper, merging various options, although not reflecting complete agreement.

51. At its first session in September 2002, the ASP established a Special Working

Group on the Crime of Aggression to continue the work and to meet during ASP sessions or at any other time that the Assembly deems appropriate and feasible. The ASP Bureau appointed Ambassador Christian Wenaweser (Liechtenstein) to chair the Working Group. The Working Group is open to States Parties and non-States Parties on an equal footing.

Substantive Issues

52. During the sixth session, the Special Working Group held seven meetings on the 4-7 and 12 December 2007. At the sixth resumed session the Group met also in seven meetings on the 2-4 and on 6 June 2008.

53. During the sixth session, the discussion paper proposed by the Chairman in

January 2007 remained the formal basis for the negotiations but the Special Working Group concentrated in particular on three non-papers proposed by the Chairman. One non-paper on the definition of the state act of aggression and another on the exercise of jurisdiction, both presented in May 2007, had been already the focus of the informal inter-sessional meeting at Princeton University, 11-14 June 2007, and a further non-paper on the definition of the conduct of the individual was circulated before the sixth session and reflected the result of the Princeton meeting on that subject.

54. During the resumed sixth session, negotiations proceeded on the basis of a

revised discussion paper proposed by the Chairman which contains the definition of the crime of aggression in a new Article 8 bis and the conditions for the exercise of jurisdiction in a new Article 15 bis. The “revision June 2008” reflects the development since the 2007 version and adds technical instructions relevant for the incorporation of the provisions on the crime of aggression into the Statute. Prior to the resumed sixth session, the Chairman circulated also an informal note which highlighted those technical instructions and issues which


19

had not been thoroughly addressed during recent sessions. These items included the procedure for entry into force of amendments on aggression; deletion of article 5, paragraph 2; application of article 28 to the crime of aggression; inclusion of the text of GA resolution 3314 as an annex to the Rome Statute; and the Elements of Crimes. In addition, the note indicated that the Working Group would continue to discuss the definition of the crime and act of aggression, the conditions for the exercise of jurisdiction, as well as the future work of the Working Group.

Modalities for Entry into Force and Deletion of Article 5(2)

55. During the resumed sixth session, the Chairman held a substantive discussion on the procedure for entry into force of an amendment on the crime of aggression. The Group had addressed this subject during the 2004 and 2005 intersessional meetings at Princeton University but the evaluation had not been conclusive.

56. At the resumed sixth session, delegates argued whether Article 121 paragraph

(4) or paragraph (5), would govern the amendment on aggression. Under paragraph 4 an amendment enters into force for all States Parties after ratification or acceptance by seven eighths of them. A State Party which does not accept the amendment may only withdraw from the Statute as a whole. Under paragraph 5, entry into force is only possible with regard to States Parties which ratify or accept the amendment. The Court may not exercise its jurisdiction with regard to the crime covered by the amendment when committed by a national or on the territory of a non-accepting State Party. A number of countries expressed support for Article 121 (4). They noted in particular that the provision on aggression was not an amendment of Articles 5, 6, 7, and 8, and did not create a new crime under the Rome Statute because aggression was already included under Article 5(1) and State Parties had therefore already accepted it.

57. A number of other states argued that paragraph (5) would be applicable

because it was intended for amendments concerning the substance of the crimes within the Court’s jurisdiction and because it would respect the sovereignty of States Parties which have chosen not to accept the amendment. In light of the division of opinions, the Chairman acknowledged that it would be necessary to continue the discussion in the future.

58. In addition, during the resumed sixth session, a brief discussion was held on the

question of deleting Article 5(2). While some states recognized that Article 5(2) would become redundant once there has been an agreement on aggression, a number of delegations expressed the view that the discussion was premature at this stage.

Crime of Aggression – Defining the Individual’s Conduct

59. On the crime of aggression- defining the individual’s conduct- discussions had advanced during Princeton 2007 and resulted in a second revision of variant (a)


20

of paragraph 1 of the Chairman’s paper of 2007. The first revision at the resumed fifth session had tested a jurisdictional wording for the leadership clause, the second returned to a definitional wording. The basic approach of variant (a), as well as of the revisions allows for the application of the general principles on participation in article 25(3) of the Statute (the “differentiated” approach), with the leadership requirement reflected both in the definition and in a new article 25(3) bis. The discussions at the sixth session centered on the non-paper reflecting the second revision from Princeton and replacing both variants (a) and (b) of the first part of paragraph 1 of the Chairman’s paper of January 2007. Similarly, the revised discussion paper at the resumed session did not include variants and reflected only the “differentiated” approach.

60. The proposed language of the non-paper for the first part of paragraph 1 read:

“For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression/armed attack, [which, by its character, gravity and scale…]”. The conduct clause met with general support at the sixth session. With regard to the choice between a reference to “act of aggression” and “armed attack” in the first part of paragraph 1, all who spoke on this point agreed on using “act of aggression” as the focus of the individual conduct. A reexamination of the leadership clause suggested by one delegate, and supported by others, was shifted to the discussion of the proposed new article 25(3)bis. (See below.)

61. The first paragraph of Article 8 bis in the revised discussion paper uses largely

the same language for the definition of the crime as in the prior non-paper, except that the focus of the conduct is now clearly specified as “act of aggression.” During the resumed sixth session, a large number of countries reaffirmed their general support for this definition of the individual criminal conduct. The only remaining disagreement with regard to the first paragraph concerned the threshold requiring an act of aggression ”which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”. While the threshold maintained strong support, it also raised again a number of concerns. Thus, it was argued in particular that the threshold was unnecessary and that all acts of aggression constituted manifest violations. In addition, some states thought that the requirement of a “manifest violation of the Charter of the United Nations” was not consistent with the definition of the State act in article 8 bis paragraph 2 which requires the use of armed force “inconsistent with the UN Charter”. For others the two phrases were compatible, since they relate to different aspects of the definition. Still others called for the harmonization of the two phrases or for shifting the threshold into paragraph 2.

62. An alternative or additional qualification or reference point for the act of

aggression which would add “such as, in particular, a war of aggression or an act which has the object or result of establishing a military occupation of, or annexing, the territory of another State or part thereof” had only varied


21

support during the sixth session. In the Chairman’s revised discussion paper presented at the resumed session, the phrase was placed in a footnote with the understanding that it remained on the table. While some argued that the phrase should be maintained, others pointed out that it was superfluous in light of the definition of the act in Article 8 bis paragraph 2.

63. A reexamination of the leadership clause during the sixth session took largely

place in the context of the proposed new article 25(3)bis which clarifies that the leadership requirement does not only apply to the principal perpetrators, but to all relevant forms of participation in article 25: “With respect to the crime of aggression, the provisions of the present article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.” Many delegations expressed support or flexibility. At the same time, drafting suggestions were made and delegates considered the question if the clause covered the intended leadership level, including leadership involving more than a single person and reaching outside the formal government. A number of States expressed their understanding that the clause was sufficiently broad in that regard. At the resumed session, article 25(3bis) was again shortly considered. Delegations spoke either in favor or expressed again flexibility.

64. During the resumed session, the Special Working Group took up the question

regarding the applicability of article 28 to the crime of aggression, which provides for criminal responsibility of military commanders or other superiors for crimes committed by their subordinates. The question raised was whether article 28 should be excluded explicitly with regard to the crime of aggression. Many delegations noted that although article 28 did not apply to the crime of aggression, it would be wiser to leave it as it is. A few delegations expressed the view that in certain circumstances article 28 could apply to the crime of aggression and therefore the article should not be explicitly excluded. The Chairman recognized a general trend among countries’ positions that there was no need for an explicit exclusion.

The Act of Aggression – Defining the Conduct of the State

65. During the sixth session, discussions on the definition of the State act of aggression centered on Article 8bis paragraph 2 as contained in the non-paper introduced before Princeton 2007 (Annex IV of the Princeton report). The non-paper illustrated a definition which would incorporate relevant text of UN General Assembly resolution 3314 (XXIX) of 14 December 1974. It consisted of a generic part and a specific part listing particular acts of aggression. Both parts referred to the resolution.

66. While broad support was given to using resolution 3314 as the basis of the

definition of an act of aggression in paragraph 2, views continued to diverge on the extent of incorporation and/or form of reference. In particular, the Special Working Group considered whether the definition should merely refer to the resolution or incorporate relevant text from it or do both. With regards to the


22

first and last option, delegates debated if a documentary reference should cite the resolution as a whole or only articles 1 and 3. In this regard, a number of States were opposed to any partial reference. At the same time, serious objections were raised to references to the resolution as a whole as far as such a reference could tie the definition to article 4 of the resolution and thus to a determination by the Security Council. Since such a link could entail an open-ended and possibly retroactive definition, it was of concern to many states in light of the principle of legality. In general, discussions with regards to the definition of the act followed similar lines as in Princeton 2007.

67. There was wide support for the inclusion of the list of acts taken from article 3

of resolution 3314, but views continued to differ on whether the acts should be exhaustive (closed) or non-exhaustive (open) and on the nature of the list in this regard. The chapeau preceding the list of acts reads: “Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression...”. Different delegations expressed conflicting views as to whether this language introduced an open or closed list. Some states explicitly requested clarification on the intended nature.

68. At the resumed sixth session, delegates debated the definition of the state act

of aggression as contained in the revised discussion paper of the Chairman. The definition continues a two part structure with a generic definition and a specific list. The specific list and the chapeau immediately preceding the list remained the same as in the non-paper. In contrast, the generic part of the definition does no longer refer to resolution 3314. Many states considered the new version of the definition a good solution. At the same time, the remaining reference to resolution 3314 in the specific part and the closed or open nature of the list continued to be a matter of debate, while the interplay with the new generic definition required at the same time new evaluations. The discussions on the definition of the act of aggression were burdened by the different approaches to the threshold in paragraph 1 of Article 8bis (see above) which in turn led even to proposals that would reintroduce references to resolution 3314 in the generic part of paragraph 2.

69. During the regular and resumed sixth session, some states continued to object

to the requirement of “armed force” in the general part of the definition. They asked instead for terminology which would include economic, financial and political sanctions, as well as future forms of warfare such as cyber attacks. One delegation repeated its concern that the right to self-determination required an express reference to Art.7 of resolution 3314

70. With regard to the suggestion in the Chairman’s revised discussion paper to

annex resolution 3314 to the Statute, the vast majority of states either spoke against such an annex or indicated that it would not bring any added value. Following the discussion, the Chairman concluded that agreement had been reached against the annex.


23

Conditions for the Exercise of Jurisdiction

71. At the sixth session, discussions focused in particular on two elements from the non-paper on the exercise of jurisdiction (Annex III of the Princeton report): 1) the suggested role of the Pre-Trial Chamber and 2) the so-called “green light” option for the Security Council.

72. The non-paper was welcomed for separating jurisdictional issues from the

definition of aggression by creating a separate provision in the Statute (article 15 bis). A new structural non-paper by Belgium suggested further placement and additional separation ideas.

73. On the role of the Pre-Trial Chamber (PTC), paragraphs 2, 3 and 5 of article 15

bis in the Chair’s non-paper elaborate that the PTC would act as a judicial filter and provide checks and balances to the Prosecutor’s activities. Under paragraph 4 of article 15 bis, the PTC would be responsible for the notification of the Secretary General of the United Nations in the absence of a determination or decision by one of the United Nations organs as set out in paragraph 3. The discussions on the filter and communication roles of the PTC remained inconclusive.

74. Under the “green light” option elaborated in paragraph 3(b) of article 15 bis in

the non-paper, the Security Council would make a decision not to object to the investigation of the crime of aggression instead of making a determination of an act of aggression. The provision attempts to offer a compromise idea by lowering in this way the jurisdictional threshold of paragraph 3(a). As in Princeton, the language found only limited support. Delegates asked especially for more procedural and substantive clarity. But new drafting and timing ideas for the notifications between the Court and the Security Council were also offered. With regard to the idea of dialogue between the Security Council and the Prosecutor or Pre-Trial Chamber of the Court, the need for transparency was emphasized.

75. Views continued to diverge on the role of the General Assembly or International

Court of Justice in the determination of an act of aggression (paragraph 3(c) of article 15 bis in the non-paper).

76. For the resumed session, the Chairman’s revised discussion paper offered a new

version of the jurisdictional conditions which tries to present the alternatives and options in a clearer manner. During the resumed session, the Chairman circulated in addition a flow chart with the various conditions. Delegations continued to seek a compromise solution that would be consistent with the role of the Security Council under the UN Charter and the independence of the Court. The revised discussion paper was generally welcomed for its clarity. Discussions focused mainly on the role of the Security Council and more specifically on the situation when the Council has not made a determination of aggression. Under alternative 1 of the revised discussion paper, the Special Working Group considered two options. Under the first option the Prosecutor


24

may not proceed. Under the second option the Prosecutor is blocked as well unless the Security Council makes a request to proceed. The second option represents a revised formulation of the ‘green light’ (see above). Alternative 2 sets out four options enabling the Prosecutor to proceed. All options require a waiting period. Under the first option, the waiting period is the only requirement. Under the second option, the Prosecutor may proceed provided the Pre-trial Chamber has authorized the commencement of the investigation in accordance with the procedure contained in Art.15 of the Statute. Option 3 requires a determination of an act of aggression by the General Assembly. Option 4 requires a determination of an act of aggression by the International Court of Justice.

77. States offered again their different positions. Among the States which

expressed support for alternative 2, several argued that a six-month waiting period would be too long and proposed various shorter time frames.

78. Three States made new proposals changing or adding to the language of the

revised discussion paper of the Chairman: A written informal proposal by Columbia would amend alternative 2 option 2 permitting the Prosecutor to proceed “in accordance with Article15”. The proposal appeared to be intended as a simplification of the wording concerning authorization by the Pre-Trial Chamber. The Netherlands offered a written informal proposal with additional language to clarify that the Prosecutor may proceed when the Security Council has made a determination of an act of aggression. Several States, as well as the Chairman, concurred that the proposal would add clarity. Belgium presented a non-paper suggesting a “red light” approach. The proposal builds on article 2 of resolution 3314 which recognizes the right of the Security Council to conclude that a determination of an act of aggression would not be justified, including due to insufficient gravity. Under the proposal, an investigation could not proceed if the Security Council made such a conclusion by adoption of a resolution. Unlike the mechanism used in article 16 of the Rome Statute, a resolution under the “red light” approach would be definitive unless succeeded by a different Security Council resolution. A number of delegations expressed interest in this proposal. Other delegations reacted more negatively. In general, the responses were preliminary and subject to further study of the proposal. Belgium offered that the language might be adjusted.

Roadmap

79. During the sixth session, the future roadmap of the SWGCA was discussed. The ASP took note of the report of the Special Working Group and again recognized that the Special Working Group must conclude its work at least 12 months prior to the Review Conference in order to be in a position to submit proposals for a provision on aggression.

80. The ASP also reiterated its decision to devote at least two days of the seventh

session to the Special Working Group.


25

81. The ASP also decided to hold a resumed seventh session of five days (as necessary) in 2009 in New York to conclude the work of the Special Working Group. The date will be determined by the Bureau and be approximately 12 months before the Review Conference.

Elements of Crime

82. In the January 2007 discussion paper, the Elements proposed in 2002 at the end of the Preparatory Commission had been included as a placeholder to make clear that they still needed to be discussed. The Chairman’s revised discussion paper from June 2008 did not reproduce the Elements as they were likely to create more confusion than clarity in light of the progress made in other parts of the discussion.

83. During the sixth session, a consideration of the timing of the drafting of the

Elements of Crimes for the crime of aggression resulted in an agreement for postponement.

84. During the resumed session, the question of the timing of the drafting of the

Elements was again considered. A brief discussion was held whether to commence work on their drafting in parallel with the other substantive discussions or to postpone discussions either until the Special Working Group concludes its work on the proposals for the definition and the jurisdictional conditions twelve months prior to the Review Conference or until an agreement has been reached at the Review Conference. Some delegations questioned the need for the Elements since the definition appears to become fairly detailed. Others reiterated the importance of drafting the Elements to clarify the scope of the leadership clause and the nature of the specific acts under the list included in the definition. Overall, more states spoke in favor of postponing the drafting, with several seeing a possibility to start in the twelve months period prior to the Review Conference.

Other 85. On 7 December 2007, five NGOs made interventions to the SWGCA including the

Union Internationale des Avocats, the CICC, the Institute for Law, Accountability and Peace (UK), Amnesty International, and the Just War Theory Project (in the order of presentation). During the resumed session, on 4 June 2008, in addition to Ben Ferencz, four NGOs made interventions including the Union Internationale des Avocats, Association of the Bar of the City of New York, the Institute of Law, and Peace (UK), and the Just War Theory Project (in the order of presentation).

Relevant documents Discussion paper on the crime of aggression proposed by the Chairman (revision June 2008), ICC-ASP/6/SWGCA/2, 14 May 2008, http://www.icc-cpi.int/library/asp/ICC-ASP-6-SWGCA-2__English.pdf

http://www.icc-cpi.int/library/asp/ICC-ASP-6-SWGCA-2__English.pdf

http://www.icc-cpi.int/library/asp/ICC-ASP-6-SWGCA-2__English.pdf


26

Report of the Special Working Group on the Crime of Aggression, Annex II (p. 87-95), http://www.icc-cpi.int/library/asp/OR_Vol_I_Annexes_English.20-12-07.1438.clean.pdf CICC fact sheet, The ICC and the Crime of Aggression, 1 May 2007, http://www.iccnow.org/documents/CICCFS_Crime_of_Aggression_Factsheet_FINAL_eng_1May07.pdf Report of the Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, held at the Liechtenstein Institute on Self Determination, Woodrow Wilson School, Princeton University, United States, from 11 to 14 June 2007, ICC-ASP/6/SWGCA/INF.1, 25 July 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-SWGCA-INF.1_English.pdf Discussion paper proposed by the Chairman, ICC-ASP/5/SWGCA/2, 16 January 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-5-SWGCA-2_English.pdf

http://www.icc-cpi.int/library/asp/OR_Vol_I_Annexes_English.20-12-07.1438.clean.pdf

http://www.icc-cpi.int/library/asp/OR_Vol_I_Annexes_English.20-12-07.1438.clean.pdf

http://www.iccnow.org/documents/CICCFS_Crime_of_Aggression_Factsheet_FINAL_eng_1May07.pdf

http://www.iccnow.org/documents/CICCFS_Crime_of_Aggression_Factsheet_FINAL_eng_1May07.pdf

http://www.icc-cpi.int/library/asp/ICC-ASP-6-SWGCA-INF.1_English.pdf

http://www.icc-cpi.int/library/asp/ICC-ASP-6-SWGCA-INF.1_English.pdf

http://www.icc-cpi.int/library/asp/ICC-ASP-5-SWGCA-2_English.pdf


27

VII. REVIEW CONFERENCE Background 86. As the date for the first Review Conference of the Rome Statute approaches,

both substantive and procedural issues are of key concern. Following a decision made by the ASP at its fifth session, the Bureau Working Group, under the facilitation of Mr. Sabelo Sivuyile Maqungo (South Africa) submitted a Report to the ASP dealing with issues such as rules of procedure, financial matters, timing, venue and scope.

87. The CICC Team on the Review Conference recommended that the success of the

Conference should not solely rely on amendments and that it should also be an opportunity for stocktaking, benchmarking and evaluating the work of the international justice system established by the Rome Statute. Furthermore, the Team noted that the choice of location could have a significant impact on the scope, influence and results of the Review Conference, and recommended the ASP to adopt final criteria or procedures for selecting the venue.

88. At the resumed session, the Team argued that the selection of a proper venue

is vital to the overall success of the Review Conference. It considered that the venue is likely to have implications on the substantive work at the conference and in shaping perceptions on the ICC, particularly those on its effectiveness and legitimacy. According to the Team, these implications may also have further effects on the future success of the Court with regard to potential ratifications of the Rome Statute and cooperation with the ICC.

89. For these reasons, the Team concluded that the Conference should be hosted

by a State that is willing and able to protect the integrity of the Rome Statute, that fully cooperates with the ICC, that can offer an adequate political climate, taking into account the substantive scope of the Conference and is open to liaise with and facilitates access to civil society organisations.

Key Issues Regular Session 90. During the regular session, the ASP Focal Point for the Review Conference, Mr.

Rolf Fife (Norway), summarised the main points of the progress report presented to the ASP. This report details the consultations held on issues such as the scope, duration, timing and the venue of the Conference. A number of states and civil society organisations, including the CICC, contributed to those discussions. Mr. Fife acknowledged that there was broad agreement on a number of issues and on certain goals, one of which being the deep commitment by states parties to protect the integrity of the Rome Statute.


28

91. Furthermore, the Minister of Justice and Constitutional Affairs, and Attorney

General of Uganda, Mr. Khiddu Makubuya, presented a detailed slideshow to advocate for Uganda's bid to host the Review Conference in 2010.

92. In accordance with the recommendations contained in the Bureau’s report on

the Review Conference, the Assembly resolved to hold the Review Conference for five to ten working days during the first semester of 2010 on the basis of invitations to be sent by the Secretary-General of the United Nations in 2009.

93. Regarding the scope of the Conference, it was agreed by the Assembly that in

addition to those amendments that command very broad (preferably consensual) support, the Review Conference should include a stocktaking process of international criminal justice.

94. Furthermore, the draft rules of procedures, which were extensively discussed

within the Working Group in New York, were endorsed by the ASP and will have to be adopted by the Review Conference.

95. The issue of venue was one of the main focuses of the discussions at the

Working Group. Delegations expressed appreciation for Uganda’s offer to host the Review Conference and some delegations felt that having the Review Conference in Africa would bring the Court closer to the region where it currently carries out investigations. Other delegations, however, expressed some concern regarding the principle of hosting the Conference were investigations that could involve government officials are being conducted, where there are outstanding arrest warrants and where there is an ongoing peace process.

96. The Assembly requested the Bureau to continue consultations on the venue

taking into account a non-exhaustive list of objective criteria contained in the Working Group’s report, with a view of submitting proposals regarding the venue of the Review Conference to the resumed sixth session of the ASP in June 2008. As a result, the Working Group, chaired by the ASP Focal Point - Mr. Rolf Fife (Norway) - met to discuss the issue of venue.

97. Following a request of the Bureau, a site-visit to Uganda was carried out from

13 to 15 May 2008 to compile information on the practical and logistic matters pertaining to the conference. The meetings focused on a wide range of issues, such as Uganda’s political commitment to facilitate the hosting of the conference, the legal framework required to ensure that all conference participants would be accorded the requisite privileges and immunities, the logistic capacity to accommodate all participants, the relevant budgetary issues, the impact on the country and the region of holding the conference, and also the steps taken by the host State in support of the ICC.

Resumed session


29

98. At the resumed session, the Ugandan Attorney General and Minister of Justice and Constitutional Affairs, Dr. Khiddu Makubuya, outlined to the Working Group on the Review Conference a number of issues in relation to Uganda’s bid to host the Review Conference. Dr. Makabuya reiterated Uganda’s commitment to cooperate with the ICC and its offer to host the ICC Review Conference in 2010.

99. The Attorney General argued that Uganda, as a situation country and the first

country to refer a situation to the ICC, has a legitimate claim to host the Review Conference. Such an early referral was said to be a testament to Uganda’s confidence in the Court, and hosting the Conference would serve as an opportunity for Uganda and the central African region to appreciate and identify with the Court. As regards the current lack of national implementing legislation for the Rome Statute, the Ugandan government promised that it will be expedited before the end of 2008.

100. Also at the resumed session, the Argentinean delegation made a proposal to

host the Review Conference in the city of Buenos Aires. In their proposal, Argentina established that although they acknowledged that Uganda had already made an earlier proposal, their offer was made in a good and proper manner. They emphasised that Argentina has implemented nationally the Rome Statute, has ratified the Agreement on Privileges and Immunities, and referred to the active support of the Latin American region to the Court.

101. In its resumed session resolution, the ASP took note of the Ugandan site-visit

report and welcomed Dr. Makabuya’s statement on behalf of Uganda. Furthermore, The Assembly took note of Argentina’s offer to host the Review Conference as a possible alternative to Kampala, should Uganda’s bid not be adopted, and requested that additional information concerning the offer be provided as soon as possible, prior to the next ASP session.

102. The Assembly also mandated the Bureau to continue its preparations taking into

account the report on the Ugandan site-visit, the broad support for the offered made by Uganda expressed in the debate held by the Working Group as well as the availability of facilities in The Hague and New York.

103. Lastly, the Assembly emphasised the need to reach a final decision on the

venue at the seventh session of the Assembly, and that an appropriate consideration of any additional offers to host the conference would thus be difficult.

Relevant documents Review Conference: Report on the Uganda site-visit, ICC-ASP/6/WGRC/INF.1, 4 June 2008, http://www.icc-cpi.int/library/asp/ICC-ASP-6-WGRC-INF.1_English.pdf CICC Team on Review Conference: Comments and recommendations on criteria for the Review Conference venue, 2 June 2008, http://www.iccnow.org/documents/ReviewConferenceRecommendations_2june08.pdf

http://www.icc-cpi.int/library/asp/ICC-ASP-6-WGRC-INF.1_English.pdf

http://www.iccnow.org/documents/ReviewConferenceRecommendations_2june08.pdf


30

Report of the Bureau on the Review Conference, ICC-ASP/6/17, http://www.icc-cpi.int/library/asp/ICC-ASP-6-17_English.pdf Review Conference: scenarios and options - Preliminary paper by Mr. Rolf Einar Fife, ICC-ASP/6/INF.2, http://www.icc-cpi.int/library/asp/ICC-ASP-6-INF.3_English.pdf Strengthening the International Criminal Court and the Assembly of States Parties, http://www.icc-cpi.int/library/asp/OR_Vol_I_PartIII_Resolutions_and_Recomm_English.20-12-07.094.clean.pdf Comments and Recommendations of the CICC Review Conference Team to the Sixth Session of the Assembly of States Parties http://www.iccnow.org/documents/CICC_Review_Conference_Draft_Team_Paper_ASP_6_(English).pdf



http://www.icc-cpi.int/library/asp/ICC-ASP-6-INF.3_English.pdf





VIII. COOPERATION Background 104. With the Court now in the judicial phase of its activities and having six

outstanding public arrest warrants, the issue of cooperation has become much more pressing for the Court and States Parties.

105. Notwithstanding the letters sent by the CICC and Human Rights Watch to the

Bureau of the ASP requesting the creation of an ASP Working Group on Cooperation at the sixth session of the Assembly in order to have in-depth discussions on the issue, such Working Group was not established and the issue of cooperation was not in the official agenda of the ASP.

106. Nevertheless, a vast majority of delegations stressed the importance of

cooperation for the success of the Court during the General Debate. The issues raised by the delegations covered concerns expressed for the outstanding arrests warrants and the need for States to fulfil their responsibility in this regard; the importance of having a consistent and active role in the diplomatic and public support to the Court; the need for effective implementing legislation and bilateral cooperation agreements with the Court, including the APIC; the importance of the relationship between the Court and the UN; among other.

107. Similarly, both the President of the Court and the Prosecutor stressed the

importance of cooperation in their reports to the ASP. In addition, during his briefing to the Security Council, the Prosecutor strongly emphasised the need for effective cooperation and consistency from the UN and the Security Council in ensuring respect for its referral to the Court of the Situation in Darfur and the execution of the warrants of arrest.

108. The CICC organised as a side event an

informal meeting on cooperation sponsored by Denmark and the Netherlands and co-sponsored by 13 other delegations. The meeting, which focused on identifying mechanisms to further the Bureau’s recommendations, benefited from the participation of Court officials, government officials and experts from civil society organisations. The issues raised were various and touched upon the usefulness of the Bureau’s report on cooperation, practical ways to implement cooperation trough the different actors, lessons learned from negotiating cooperation

Jurg Lauber, Chef de Cabinet, ICC Presidency and CICC Convenor Bill Pace during CICC’s informal hearing on cooperation, 12 December 2007. Credit: CICC

31


32

agreements with the Court and cooperation within the context of issues related to victims.

109. As a similar side event, the CICC organized an informal meeting on cooperation

during the resumed 6th session of the ASP. As part of the meeting’s agenda the ASP Focal Point on Cooperation, Ambassador Yves Haesendock (Belgium), raised the issue of Witnesses Protection and Enforcement of Sentences agreements. Mr. Gerard Dive, from the Belgian ICC Task Force, shared experiences and lessons learned with regards to arrest of Mr. Jean Pierre Bemba by the Belgian authorities. Furthermore, Mr. Phakiso Mochochoko, Senior Legal Adviser of the ICC Registry, talked about the expectations and challenges in negotiating cooperation agreements with the Court. Finally, Mr. Richard Dicker, from Human Rights Watch, addressed the need for cooperation and possible modalities of cooperation in the situation in Darfur, Sudan.

Key Issues 110. Since the fifth session, both the Working Groups in The Hague and New York,

under the facilitation of Ambassador Kirsten Biering (Denmark) and Ms Brechje Schwachofer (the Netherlands) respectively, started a consultation process with the aim of reporting back on the progress of their discussions at the sixth session.

111. The Bureau adopted a comprehensive report including specific

recommendations for the different clusters and sections as discussed by the Working Groups. This report, which was submitted to the ASP, recommends to establish a follow-up mechanism in the form of a focal point for cooperation and to have another full review of the issue of cooperation within the next 2 – 3 years, depending on the needs of the Court.

112. A number of NGOs stressed the importance of this report as an extraordinary

tool which can strengthen the lobby efforts to enhance cooperation at the national, regional and international level. The report gives States the necessary information required to implement effective cooperation through its national legal mechanisms and through bilateral negotiations with the Court.

113. The CICC Cooperation Team welcomed the Bureau’s report as an important first

step and recommended the Assembly to endorse the recommendations contained in the report with a strong commitment to implement such recommendations.

114. Through the omnibus resolution, the ASP took note of the Bureau’s report on

cooperation and endorsed the recommendations contained in the report. Furthermore, the Assembly requested the Bureau to appoint a focal point to continue the work on cooperation in close coordination and dialogue with the Court and to report back to the ASP at its next regular session on any significant developments with regards to cooperation.


33

Relevant Documents Strengthening the International Criminal Court and the Assembly of States Parties (Omnibus Resolution), ICC-ASP/6/Res.2, December 2007 (p. 44) http://www.icc-cpi.int/library/asp/ICC-ASP-6-20_Vol.I_Part_III_English.pdf Report of the Bureau on Cooperation, ICC-ASP/6/21, http://www.icc-cpi.int/library/asp/ICC-ASP-6-21_English.pdf CICC Cooperation Team, Comments and Recommendations to the Sixth ASP, http://www.iccnow.org/documents/CICC_Cooperation_Team_Draft_Team_Paper_ASP_6_(English).pdf


http://www.iccnow.org/documents/CICC_Cooperation_Team_Draft_Team_Paper_ASP_6_(English).pdf

http://www.iccnow.org/documents/CICC_Cooperation_Team_Draft_Team_Paper_ASP_6_(English).pdf


34

IX. BUDGET AND FINANCE Background 115. The ASP considered the ICC Budget for 2008, as proposed by the Court.

Discussions were mainly based on the report from the Committee on Budget and Finance (CBF), a subsidiary body of the ASP, which considered the Proposed 2008 Budget on 10 – 18 September 2007.

116. Both the Proposed 2008 ICC Budget and the report of the CBF had been the

subject of discussions within the Bureau’s Working Group in The Hague, under the facilitation of Ambassador Hans Magnusson (Sweden), as well as at various meeting in the period leading up to the Assembly of States Parties. The Registrar had given presentations to States Parties both in New York and The Hague and the EU States considered the issue at the EU Council Working Group on Public International Law (COJUR). This was reflected during the general debate of the ASP in which a number of States Parties raised their different concerns and views on the budget and its process in a well-informed and comprehensive manner.

117. Additionally, members of the CICC Teams on Legal Representation and Budget

and Finance had the opportunity to give input to the CBF during its eighth and ninth sessions in April and September 2007 respectively. NGOs were also able to consider and give input to the budget discussions in different instances throughout the year with the Court, and, after the CBF had issued its report, CICC representatives met with Court officials in order to better understand the implications that such recommendations would have on the Court’s work. Moreover, during a series of meetings with the diplomatic community in The Hague, Brussels and New York leading up to the ASP, CICC members had the opportunity to further discuss, and analyse, budget issues with representatives from a number of delegations.

Timetable and Participants 118. The Budget discussions at the ASP within the Working Group, which were

chaired by Ambassador Magnusson, opened with reports to the ASP from the Registrar of the Court and by Ms. Rossette Nyirinkindi (Uganda) on behalf of the CBF. These reports were followed by questions and requests for clarifications from some of the delegations which focused on a range of issues, such as, the cuts to the legal aid budget, the adjustments to the vacancy rate, the budget for the Project Office’s Director for the permanent premises project, the Court’s underspending, the use of budgetary flexibility by the Court. During the 4th meeting of the Working Group, the CBF Chairman, Mr. David Dutton, addressed a number of issues raised by the Working Group during an exchange via video link.


35

119. The Working Group on Budget based its discussions on the recommendations

presented by the CBF and organised its work on the basis of the thematic list of clusters following the structure of the CBF report. The discussions benefited from the presence of the Registrar who answered questions, and responded to the concerns expressed by States.

120. The Budget and Finance Team welcomed this approach taken by the Working

Group, which demonstrated an intention to comprehensively consider the issues arising from the Committee’s report. The Team appreciated the fact that the discussions not only reflected a particular support from States for the importance of Legal Aid, but also for other issues such as translation costs, which, although not included among the Team recommendations for this ASP session, had been topics of concern brought before the CBF in its September 2007 session.

121. At the end of the first session, the CICC Teams on Legal Representation and on

Budget and Finance were allowed to make a short statement to the Working Group. The statement presented the recommendations made by the Teams in their paper submitted to the ASP, and during previous diplomatic briefings. The Teams emphasised the fundamental importance of legal aid to conduct fair trials and the role of the Office of Public Counsel for the Defence (OPCD) in the Court’s mandate to assist the defence, and requested that States not endorse the CBF recommendations for reductions in the Division of Victims and Counsel (DVC) of €321,500 for contractual services including legal aid and a GTA P4 Counsel for the OPCV.

122. Nevertheless, the ASP, following the Report of the Working Group, decided to

approve the CBF report as a package, which represents a total budget of €90,382,100 for 2008, which corresponds to an increase of around 1.7% compared to the 2007 budget. Although the ASP based its decision on the expert recommendations submitted by the CBF, the decision to open the recommendations up for discussion indicates an acknowledgement by the ASP of its responsibility to consider and decide the budget for Court.

Key Issues Legal Aid and OPCD 123. Regardless of the many concerns raised by some delegations and their

willingness to grant more resources for legal aid, the ASP endorsed the recommendation of the CBF not to approve the proposed increase in contractual services for legal aid and the GTA P4 Counsel for the OPCD and that these requirements should be met through flexibility from existing unspent resources. The Registrar, at the end of the discussions, assured the Assembly that, although the use of flexibility will be very difficult for 2008, the Court will make efforts to absorb those costs. Moreover, the ASP stressed the importance of legal aid to ensure fair trials and recommended to keep this issue under constant review.


36

Recruitment delays and vacancy rates 124. The ASP endorsed the concerns of the CBF regarding the recruitment delays and

urged the Court to take urgent and strong action to increase its overall recruitment capacity. Furthermore, the ASP endorsed the CBF recommendation to adjust the vacancy rate for existing posts from 10% to 18% as to reflect the likely rate of appointment of staff. The ASP noted that if problems would arise for the small major programmes (such as the Secretariat of the Trust Fund for Victims or the Judiciary) as a result of the application of the adjusted rate, if necessary, the Court could revert with proposals for transfers between major programmes which would need to be approved by the next session of the ASP.

Family visits of indigent detainees 125. The ASP did not make a decision to cut the funds, however, it took note of the

recommendation made by the CBF and decided to take up the issue at the next regular session of the ASP when a policy decision on the matter could be discussed in light of more comprehensive information from the Court. The issue was one of the main concerns at the budget discussions.

Judge Disability Pension 126. At the resumed session, the ASP authorized the transfer of €236.722 from major

programme IV to major programme I in order to cover the remaining costs of the disability pension payable to a judge by the Court. The total costs of the disability pension were €1.407.170 and since no provision had been made in the 2007 budget for such a situation, the total of €1.170.448 from the underspend of major programme I had been utilized to cover the disability pension accrual.

Relevant documents Report “Programme Budget for 2008”, In: ICC-ASP/6/20, page 12 http://www.icc-cpi.int/library/asp/MERGED-OR_Vol_1_English_20-12-07_1900.pdf Proposed Program Budget for 2008 of the International Criminal Court, ICC-ASP/6/8, 25 July 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-8_English.pdf Report on the budget performance of the International Criminal Court as at 31 July 2007 ICC-ASP/6/10, http://www.icc-cpi.int/library/asp/ICC-ASP-6-10_English.pdf Report of the Committee on Budget and Finance on the work of its eighth session, ICC-ASP/6/2 29 May 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-2_English.pdf Report of the Committee on Budget and Finance on the work of its ninth session, ICC-ASP/6/12, 28 September 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-12_English.pdf CICC Submission to the ninth Session of the Committee on Budget and Finance, 7 September 2007,

http://www.icc-cpi.int/library/asp/MERGED-OR_Vol_1_English_20-12-07_1900.pdf







37

http://www.iccnow.org/documents/CICC_Submission9thSessionofCBF_eng.pdf CICC Budget and Finance and Legal Representation Teams, Comments and Recommendations to the Sixth Session of the Assembly of States Parties http://www.iccnow.org/documents/Budget-Legal_Rep_Draft_Team_Paper_ASP_6_211107.pdf

http://www.iccnow.org/documents/CICC_Submission9thSessionofCBF_eng.pdf


38

XI. LEGAL AID Background 127. The Rome Statute system establishes that suspects and accused persons have

the right to have legal assistance without payment if he/she does not have sufficient means to pay for the legal assistance. Victims who lack the necessary means to pay for a common legal representative chosen by the Court may also receive assistance, including, as appropriate, financial assistance.

128. Upon request of the Committee of Budget and Finance at its 7th session, the

Court reviewed its legal aid system in early 2007. The scheme in place was evaluated and consultations were held with various associations and counsel in spring 2007. After the evaluation process which took into account the experience with judicial activities so far, the Court submitted a report to the CBF suggesting various amendments to the current system.

Issues 129. Although the Committee of Budget and Finance had approved of the revised

system in its April 2007 session, it recommended to the 6th ASP not to grant the increase for legal aid requested by the Court to implement the new system. In the view of the CBF the Division of Victims and Counsel, mandated to manage legal aid, had sufficient funds given it had substantially under-spent its budget in 2007.

130. NGOs and the Court felt that if the ASP followed the CBF recommendation, the

implementation of the new system could be jeopardized in 2008. Therefore NGOs and the Court during the ASP meeting tried to raise awareness among States Parties about the importance of a properly funded legal aid system.

131. To that end, the Court organized an informal hearing open to states, NGO

representatives and other interested parties. The Head of the Division of Victims and Counsel, Didier Preira, explained the new legal aid scheme and the control mechanisms put in place to ensure the careful management of legal aid resources (e.g. the position of the financial investigator). He also provided clarification on the role of the Office of the Public Counsel for the Defence vis-a-vis the role of the ICC list Counsel. NGOs likewise flagged the issue and raised it at several occasions (e.g. NGO statement to the Budget Working Group, regional meetings, meeting on the role of victims).

132. During the discussions on the budget, States Parties stressed the importance of

providing adequate legal aid in situations of indigence to ensure fair trials. However, in the end, they did not overturn the CBF recommendation. They


39

reasoned that the financial requirements could be met from existing resources and expressed that they will keep the issue under constant review. In the omnibus resolution (paragraph 13) the ASP invited the Court to present for the next ASP session an “updated report on the different mechanisms for legal aid existing before international criminal jurisdictions in order to assess, inter alia, the different budgetary impact of the various mechanisms”.

Relevant Documents Report of the Working Group on the Programme Budget for 2008 of the International Criminal Court, contained in: http://www.icc-cpi.int/library/asp/OR_Vol_I_PartII_External_audit_and_Programme_Budget_English.20-12-07.0946.clean.pdf CICC Budget and Finance and Legal Representation Teams, Comments and Recommendations to the Sixth Session of the Assembly of States Parties http://www.iccnow.org/documents/Budget-Legal_Rep_Draft_Team_Paper_ASP_6_211107.pdf Report on the operation of the Court’s legal aid system and proposals for its amendment, http://www.icc-cpi.int/library/asp/ICC-ASP-6-4_English..pdf Report on the principles and criteria for the determination of indigence for the purposes of legal aid (pursuant to paragraph 116 of the Report of the Committee on Budget and Finance of 13 August 2004), http://www.icc-cpi.int/library/asp/ICC-ASP-6-INF.1_English.pdf Report of the Committee on Budget and Finance on the work of its eighth session, http://www.icc-cpi.int/library/asp/ICC-ASP-6-2_English.pdf Report of the Committee on Budget and Finance on the work of its ninth session, http://www.icc-cpi.int/library/asp/ICC-ASP-6-12_English.pdf http://www.icc-cpi.int/library/asp/ICC-ASP-6-12-Add1_English.pdf Proposed Program Budget for 2008, http://www.icc-cpi.int/library/asp/ICC-ASP-6-8_English.pdf

http://www.icc-cpi.int/library/asp/OR_Vol_I_PartII_External_audit_and_Programme_Budget_English.20-12-07.0946.clean.pdf



http://www.icc-cpi.int/library/asp/ICC-ASP-6-4_English..pdf

http://www.icc-cpi.int/library/asp/ICC-ASP-6-INF.1_English.pdf






40

XI. STRATEGIC PLAN Background 133. At the previous ASP meeting in November 2006, States Parties adopted a

resolution on the “Strategic Planning Process of the Court”, welcoming the efforts made by the Court so far and invited it to continue with the dialogue already initiated. In addition, States recommended that such a dialogue should focus on concrete implementation and should include issues such as: location of Court activities, position of victims, outreach and communication activities and the relationship between the Strategic Plan and the budget. In the resolution, States also invited the Court to submit an update to the next session of the ASP. Since the last meeting of the ASP, the Court’s has been updating the states on the progress through the Bureau’s Working Group in The Hague.

134. At this sixth session, the discussion was dealt with within the ‘omnibus

resolution’ recommending that the Court continues to engage with the Bureau on this process, and that it prioritizes the same issues as in the previous year. These recommendations were connected with the paragraph in the ‘omnibus resolution’ on strategic planning for the Court’s outreach (see below in the chapter on outreach). States Parties also requested that the Court submit an update of the Strategic Plan to the next session of the ASP.

135. Facilitator for the Working Group on the Strategic Planning Process was

Ms. Dubrocard from France. Relevant Documents Strengthening the International Criminal Court and the Assembly of States Parties (Omnibus Resolution), ICC-ASP/6/Res.2, December 2007 (p. 44) http://www.icc-cpi.int/library/asp/ICC-ASP-6-20_Vol.I_Part_III_English.pdf Strategic Plan of the International Criminal Court, http://www.icc-cpi.int/library/asp/ICC-ASP-5-6_English.pdf Resolution on the Strategic planning process of the Court, http://www.icc-cpi.int/library/asp/ICC-ASP-5-32_Part_III_Resolutions_pages_337-384_English.pdf

http://www.icc-cpi.int/library/asp/ICC-ASP-6-20_Vol.I_Part_III_English.pdf



http://www.icc-cpi.int/library/asp/ICC-ASP-5-32_Part_III_Resolutions_pages_337-384_English.pdf



41

XII. FAMILY VISITS OF INDIGENT DETAINEES Background 136. Following a recommendation by the International Committee of the Red Cross,

the Registrar proposed in its 2008 budget proposal that the Court covered travel costs for family members (spouse and children) of indigent detainees to visit them in The Hague. It was suggested that the cost include all travel and accommodation within the country of residence, costs associated with the visa application process, insurance and expenses related to their stay in The Netherlands.

137. The Committee on Budget and Finance in reviewing the budget proposal

considered this question as a policy decision that could only be made by the Assembly of States Parties. The CBF noted that the proposed policy had no precedent in the other international criminal tribunals and could become a costly exercise as the number of detainees will increase in the future.

Issues 138. During the budget discussions the issue of family visit was extensively debated.

Some delegations felt that any policies established could set undesired precedents and, inter alia, also have implications for States entering into agreements with the Court on the enforcement of sentences. A number of delegations emphasized humanitarian aspects of the issue at stake.

139. In the end, the ASP agreed to defer a policy decision to the next ASP session

when it will receive further information from the Court. With regard to the 2008 budget, the ASP approved the funds requested for family visits but without prejudice for a future a policy decision.

140. In the Omnibus Resolution (paragraph 14), the ASP invited the Court to present

at its next session “an updated report on family visits, in consultation with relevant organisations, including the International Committee of the Red Cross and the Office of he United Nations High Commissioner for Human Rights, to assess, inter alia, the legal and policy aspects, as well as the human rights dimension and budgetary impact of family visits”.

Relevant Documents Report of the Committee on Budget and Finance on the work of its ninth session http://www.icc-cpi.int/library/asp/ICC-ASP-6-12_English.pdf (paragraph 67) Report of the Working Group on the Programme Budget of the ICC for 2008, contained in:



42

http://www.icc-cpi.int/library/asp/OR_Vol_I_PartII_External_audit_and_Programme_Budget_English.20-12-07.0946.clean.pdf Resolution on strengthening the International Criminal Court and the Assembly of States Parties (Omnibus Resolution), p 23 http://www.icc-cpi.int/library/asp/ICC-ASP-6-20_Vol.I_Part_III_English.pdf





43

XII. OUTREACH Background 141. Outreach is one specific facet of the external communications of the ICC.

Outreach aims at promoting understanding and support for the Court’s mandate, managing expectations and enabling communities to follow and understand the international criminal justice process. Outreach is a process of establishing sustainable, two-way communication between the Court and communities affected by the situations that are subject to investigations or proceedings. Outreach means not only sensitizing or simply providing information but engaging people in a two-way dialogue.

Issues 142. At the previous ASP meeting in 2006, Outreach was a crucial issue for both

NGOs and States. States had invested political and financial capital to overturn the CBF recommendation to cut resources and instead had provided the Court with all the requested funds. For the ASP meeting in 2007 is was important for NGOs that outreach continued to appear on the agenda of States. The General Debate and two outreach events organized by governments, NGOs and the Court contributed to this end.

143. During the General Debate, a number of States mentioned outreach in their

statements. Sierra Leone qualified outreach as the most important non-judicial core function of the Court. Other States like Germany and Portugal on behalf of the EU mentioned the need for continuous evaluation and assessment of outreach activities while underlining the progress made.

144. During the ASP, two important outreach events took place: an Informal

Hearing on outreach hosted by Sierra Leone and co-sponsored by 20 States Parties as well as a meeting organized by the Court where the Registry made a presentation on 2007 outreach activities:

The Informal Hearing hosted by Sierra Leone was the third of its kind. It was held

at the end of the first ASP week, on 7 December 2007, and gave an opportunity for numerous state representatives and NGOs to share their views on ICC outreach, focusing primarily on the Court's outreach efforts in 2007, a year one participant described as the "take-off" year. Some of the topics raised included the scope of outreach tools to reach communities; personnel issues; and the relationship between the Court's field offices with the Outreach Unit in The Hague. The hearing was web-cast on UN-TV and therefore accessible to people from around the world.


In the second week, on 11 November 2007, the Registry facilitated an informal briefing on the Court's outreach activities in 2007 for government delegates and NGO observers. The ICC Head of the Public Information and Documentation Section made a presentation explaining how the resources granted by the ASP the previous year translated into an increase of outreach activities in 2007. A short film provided impressions from the Court's outreach work in the field and gave an overview of the activities carried out in 2007. The ICC Field Outreach coordinators for

RC, Uganda and Darfur, who had traveled to New York for the ASP meeting, also shared their experiences and made the outreach work and the challenges involved more "tangible" to states parties who as well were given the opportunity to ask questions.

DSonia Robla, Head of ICC’s Public Information and Documentation Section, ICC Registrar Bruno Cathala, ICC’s Outreach Officer for Darfur Amira Khai, and ICC’s DRC Field Outreach Officer Paul Madidi during an informal briefing on ICC’s outreach activities in 2007. Credit: CICC

145. With respect to the Budget for 2008, the ASP followed the recommendation of

the Committee of Budget and Finance and approved all the requested outreach resources for 2008. This included resources for two important new field positions: the positions of P2 Outreach Coordinators for the Darfur and the CAR situation. So far, outreach coordinators have been in place only in DRC and Uganda. These positions proved vital for the effective conception, planning and implementation of outreach activities in the field. The two new posts will help to put forward outreach activities in the Darfur situation and the newly opened situation in CAR pending before the ICC.

146. NGOs followed closely the different drafting stages of the Omnibus Resolution.

This year’s resolution included a gradually stronger language on outreach: States reiterated the importance of outreach for the Court and encouraged the Court to continuously update the Strategic Plan for Outreach in consultation with relevant actors. States also requested the Bureau to continue the dialogue with the Court on Outreach through the Hague Working Group.

147. The CICC Communications Team had previously advocated for the inclusion of a

mandate for an Outreach Focal Point in the Omnibus resolution. Although some States supported this idea, it was in the end not agreed upon. Many States felt that outreach would be sufficiently covered by the Hague Working Group in the context of the dialogue on the Strategic Planning Process. NGOs will monitor in the course of the next year whether this framework proves appropriate for states to adequately fulfill their oversight role on outreach.

Relevant Documents The Court's 2007 Outreach Report http://www.icc-cpi.int/library/OutreachRP2007-ENG.pdf

44

http://www.icc-cpi.int/library/OutreachRP2007-ENG.pdf

http://www.icc-cpi.int/library/OutreachRP2007-ENG.pdf


45

Strengthening the International Criminal Court and the Assembly of States Parties (Omnibus Resolution): p.40, para.20 http://www.icc-cpi.int/library/asp/ICC-ASP-6-20_Vol.I_Part_III_English.pdf CICC Communications Team, Comments and Recommendations to the Sixth Session of the Assembly of States Parties http://www.iccnow.org/documents/CICC_GenderJusticeTeam__Draft_Team_Paper_ASP_6__211107_(2).pdf


46

XIII. RECRUITMENT Background 148. Equitable geographical representation and gender balance of ICC staff

was addressed in the ‘Omnibus Resolution’ adopted at the ASP session in 2006, inviting the ASP Bureau to present a detailed report on equitable geographical representation and gender balance to the sixth session, including, if necessary, any proposals to further the recruitment process.

149. The ASP Bureau assigned this task to the Hague Working Group, which

appointed Ambassador Blaak (Uganda) as facilitator. This resulted in an extensive report, with a number of recommendations, which was welcomed by the Assembly at the sixth session but not subject to further discussions. Through the ‘omnibus resolution’ the ASP recommended that the Bureau remain seized of the issue and continue to engage with the Court to improve equitable geographical representation within the existing model3, without prejudice to any future discussion of the current model.

Relevant Documents Strengthening the International Criminal Court and the Assembly of States Parties (Omnibus Resolution): p.40, para.23 http://www.icc-cpi.int/library/asp/ICC-ASP-6-20_Vol.I_Part_III_English.pdf Report of the Bureau on geographical representation and gender balance in the recruitment of staff of the International Criminal Court, ICC-ASP/6/22: http://www.icc-cpi.int/library/asp/ICC-ASP-6-22_English.pdf ICC-ASP Resolution on Selection of the staff of the ICC: ICC-ASP/1/Res.10: www.un.org/law/icc/asp/1stsession/report/english/part_iv_res_10_e.pdf For statistics on gender and geographical representation at the Court, see: http://www.iccwomen.org/publications/resources/docs/Gender_Report_Card_2007.pdf

3 The current model provides recruitment of permanent professional staff at the ICC is subject to a policy of “equitable geographical representation”, requiring the organization to recruit a certain percentage of its staff from each member state. This percentage is calculated on the basis of a number of factors, mirroring the UN system. As a result, States Parties that pay higher contributions have an advantage in terms of the number of nationals that can work for the organization.



http://www.un.org/law/icc/asp/1stsession/report/english/part_iv_res_10_e.pdf

http://www.iccwomen.org/publications/resources/docs/Gender_Report_Card_2007.pdf

http://www.iccwomen.org/publications/resources/docs/Gender_Report_Card_2007.pdf


47

Internal CICC draft policy paper on geographical representation; upon request: [email protected] CICC Team Paper of the Gender Justice Team: http://www.iccnow.org/documents/CICC_GenderJusticeTeam__Draft_Team_Paper_ASP_6__211107_(2).pdf

http://www.iccnow.org/documents/CICC_GenderJusticeTeam__Draft_Team_Paper_ASP_6__211107_(2).pdf



XIV. ICC PREMISES Background

150. The ICC is currently located in interim premises that

the Host State, the Netherlands, provides free of charge until 2012. Meanwhile, steps are being taken toward the establishment of permanent premises of the Court.

151. In April 2007, at the request of the ASP, the Registry

prepared a functional brief which was submitted to the Committee on Budget and Finance (CBF) for its consideration. This document, which was then assessed and modified by architectural/building experts who held a series of meetings in The Hague, spells out all the functions that the Court will need for its future premises and the user and security requirements reflecting scalability in staffing levels. ICC’s interim premises in

The Hague. Credit: ICC-CPI

152. The ASP considered the Bureau’s report on the permanent premises, as facilitated by Mr. Masud Husain (Canada), which proposes the establishment of an Oversight Committee to give overall directions throughout the project, and a Project Office, led by a Project Director, in charge of the everyday management of the project. The ASP also considered the recommendations of the CBF to proceed with the architectural competition on the basis suggested by the Bureau taking into account the importance of flexibility and scalability.

Key Issues 153. The CICC Team on ICC Premises had expressed the need for adequate global

dissemination of the initial public calling for candidatures, which should provide sufficient background information. Also, the Team had recommended the ASP to ensure that the expertise, views and concerns of civil society organisations, as one of the main stakeholders and users of the ICC, is taken into account during the design selection by allowing a representative to participate on the jury of the competition.

154. Several delegates and NGOs raised the issues of transparency in the selection

process, the need for adequate space for Court staff, interns, and participants, as well as adequate facilities for victims, defendants, and their respective counsel to confer and prepare for proceedings

155. The delegate of Jordan pointed out that the Assembly had not yet had a

discussion on form and design and that the instructions to the Architects could

48


49

not only be based on specification of size and function, but also of design. He compared the process with “giving the specifications to the architects of the rooms and the size but not giving the sense to the architect that we want a nice house”.

156. The ASP adopted a permanent premises resolution as recommended by the

Bureau in its report and thus decided to go ahead with the architectural design competition. Furthermore, the resolution establishes the Oversight Committee and a Project Board, the first one as a standing subsidiary body of the ASP to give strategic oversight of the project and the latter a consultative structure with the Court for the overall management of the construction.

157. The ASP also created the Project Director’s Office in charge of the routine

management of the project; as well as a Trust Fund dedicated to the construction of the premises which shall be funded through voluntary contributions from any governments, international organisations, individuals, corporations or other entities.

158. Regarding the schedule for the design competition, the ASP agreed to have a

timeframe of two months after the call for candidatures before initiating the pre-selection process. Moreover, although the ASP adopted English as the official language of the competition for practical reasons, it nevertheless noted that this should not be considered a precedent and reaffirmed its commitment to the two working languages of the Court and the six official languages of the Assembly.

159. Finally, the ASP decided to recommend that the Coalition for the International

Criminal Court is given an observer seat on the jury for the architectural design competition.

Relevant Documents Resolution “Permanent Premises”, ICC-ASP/6/Res.1, In: ICC-ASP/6/20, page 20 http://www.icc-cpi.int/library/asp/MERGED-OR_Vol_1_English_20-12-07_1900.pdf Report of the Bureau on the permanent premises of the Court: ICC-ASP/6/25 http://www.icc-cpi.int/library/asp/ICC-ASP-6-25_English.pdf Report of the 9th Session of the Committee on Budget and Finance: http://www.icc-cpi.int/library/asp/ICC-ASP-6-12_English.pdf

http://www.icc-cpi.int/library/asp/MERGED-OR_Vol_1_English_20-12-07_1900.pdf




50

XV. UNIVERSALITY OF THE ROME STATUTE Background 160. At its fourth session, the ASP requested the Bureau to consider measures that

could be taken by the Assembly, the Secretariat of the Assembly of States Parties or the States Parties to help increase the number of ratifications and to facilitate full implementation of the Rome Statute.

161. At its fifth session, the ASP decided to “adopt and implement the plan of action

for achieving universality and full implementation of the Rome Statute.” The ASP also requested the Bureau to review implementation of the plan of action and progress towards its objectives and to report to the Assembly for the sixth session.

162. The Bureau appointed Mr. Alejandro Alday González as facilitator for the New

York Bureau Working Group. The facilitator held informal consultations between the months of March and July 2007 with States Parties, the ASP Secretariat and NGOs and submitted a report to the Bureau providing recommendations to implement the plan provided.

163. The report noted that though the plan is ambitious, it provides a framework to

strengthen States Parties efforts and complement those developed by other actors for achieving universality and full implementation of the Rome Statute. Consolidating the basic structure for the implementation of the plan requires engagement by States Parties, the support of the ASP Secretariat, as well as close review by the Assembly on the plan’s implementation.

164. The ASP welcomed the report of the Bureau, endorsed its recommendations,

and requested that the Bureau continue to monitor its implementation and to report to the Assembly during its seventh session.

165. In April 2008, Mr. Marcelo Bohlke (Brazil) was appointed the new NYWG

facilitator on the issue. 166. During the resumed session, the facilitator held informal consultations on the

issue. The ASP Secretariat, the CICC, Slovenia on behalf of the European Union, the ICRC and the UN Treaty Office presented.

Key Concerns 167. CICC members supported the recommendations in the facilitator’s report and

particularly welcome the initiative of the ASP to collect information on ratification and implementation efforts by States Parties. CICC members felt that States Parties respond to the ASP Secretariat as soon as possible with such


51

information and that a clear and simple process be established whereby States Parties could report to the ASP on their activities. The posting of such information to the ICC website was a welcome initiative.

Relevant Documents Responses to Plan of Action of the Assembly of States Parties for Achieving Universality and Full implementation of the Rome Statute of the International Criminal Court, 2007, http://www.icc-cpi.int/asp/Action_Plan/AP_2007.html Strengthening the International Criminal Court and the Assembly of States Parties (Omnibus Resolution), ICC-ASP/6/Res.2, December 2007 (p. 44) http://www.icc-cpi.int/library/asp/ICC-ASP-6-20_Vol.I_Part_III_English.pdf Report of the Bureau on the Plan of Action for achieving universality and full implementation of the Rome Statute of the International Criminal Court, ICC-ASP/6/23, 19 October 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-23_English.pdf ASP Secretariat Note verbale on Plan of Action, 25 July 2007, http://www.icc-cpi.int/library/asp/Plan_of_Action_and_Annex.English.generic.pdf Report of the Bureau on ratification and implementation of the Rome Statute and on participation in the Assembly of States Parties, ICC-ASP/5/26, 17 November 2006, http://www.icc-cpi.int/library/asp/ICC-ASP-5-26_English.pdf Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/5/Res.3, December 2006, http://www.icc-cpi.int/library/asp/ICC-ASP-5-32_Part_III_Resolutions_pages_337-384_English.pdf

http://www.icc-cpi.int/asp/Action_Plan/AP_2007.html


http://www.icc-cpi.int/library/asp/Plan_of_Action_and_Annex.English.generic.pdf

http://www.icc-cpi.int/library/asp/Plan_of_Action_and_Annex.English.generic.pdf





52

XVI. OVERSIGHT MECHANISM Background 168. While the Court currently has external financial oversight mechanisms and

internal structures to deal with misconduct by staff, no independent, investigative capabilities exist.

169. Under Article 112(4) of the Rome Statute, the Assembly “may establish such

subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy.”

170. At the fifth session, the ASP took “note of the interim report by the Court and

invites the Court, in consultation with the Bureau, to submit concrete proposals for the establishment of an independent oversight mechanism to the next regular session of the Assembly of States Parties.” The Court was awaiting developments at the United Nations this year that may have influenced the development of its own mechanism.

Key Concerns 171. During 2007, there was no New York Bureau Working Group facilitator on

oversight after Ambassador Prince Zeid Ra’ad Zeid Al-Hussein (Jordan) stepped down.

172. The Coalition’s Teams on ASP Structures and Functions and on Gender Justice

followed and gave input to developments, pushing for concrete progress on this issue in 2008. Some NGOs also advocated for the responsibility of this issue to be shifted from the Bureau’s Working Group in New York to its Working Group in The Hague.

173. At the sixth session, the ASP renewed its invitation to the Court, in consultation

with the Bureau, to continue to consider concrete proposals for the establishment of an independent oversight mechanism to the next regular session of the Assembly of States Parties.

174. In February 2008, the Bureau appointed H.E. Mr. Andreas Mavroyiannis, the

Permanent Representative of Cyprus to the United Nations, as the new facilitator until July 2008, when he is expected to leave New York. The Bureau deemed that it may be necessary to consult further with the Court on how to proceed on this matter without having to await the conclusion of a similar process within the United Nations and to consider the question as to where to continue the work after Ambassador Mavroyiannis had concluded his work.


53

175. During the resumed session, the facilitator held informal consultations on a non-paper he produced. He reminded states that the idea for an oversight mechanism had come parallel to the discussions at the UN and that the purpose was to provide a framework to protect the Court and its image from unwarranted criticism. The facilitator stressed that the oversight mechanism would not be in competition with existing procedures within the Court but would be an independent internal body.

176. In response to the non-paper, some states expressed the view that the

proposed body should be very light and that the financial implications should be considered carefully. The question was raised whether there would be an amendment to the Rome Statute and the facilitator noted that this would not be necessary.

Relevant Documents Strengthening the International Criminal Court and the Assembly of States Parties (Omnibus Resolution), ICC-ASP/6/Res.2, December 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-20_Vol.I_Part_III_English.pdf Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/5/Res.3, December 2006, http://www.icc-cpi.int/library/asp/ICC-ASP-5-32_Part_III_Resolutions_pages_337-384_English.pdf CICC Team Paper of the Gender Justice Team: http://www.iccnow.org/documents/CICC_GenderJusticeTeam__Draft_Team_Paper_ASP_6__211107_(2).pdf






54

XVII. OMNIBUS RESOLUTION Background 177. For the fifth consecutive year, the ASP adopted an omnibus resolution, more

formally entitled ‘Strengthening the International Criminal Court and the Assembly of States Parties’. The resolution addresses a large number of substantive issues which are discussed throughout this report. These resolutions usually call for ratification and implementation of the Rome Statute and other agreements; note developments linked to institution-building and to each organ of the Court; highlight important issues relating to cooperation, and deal with administrative issues as relevant to the ASP.

178. Some key issues relate to cooperation, outreach, recruitment, the Review

Conference, the participation of States Parties in the ASP, working groups of the Bureau, as well as the future dates and venue of the next sessions of the ASP and the Committee on Budget and Finance.

179. The Resolution was coordinated this year by Mr. Marcelo Böhlke (Brazil). A first

draft of the resolution was distributed on 14 November. The first informal to discuss the draft was held in New York on 21 November. A second revised draft was sent on 21 November.

180. States Parties met in informal plenary sessions on Tuesday and Wednesday, 10-

11 December. The resolution was adopted on Friday, 14 December by consensus.

181. The Coalition Team on ASP Structures and Functions and Team Leaders

followed the omnibus resolution’s development and gave input to developments.

Relevant documents Strengthening the International Criminal Court and the Assembly of States Parties (Omnibus Resolution), ICC-ASP/6/Res.2, December 2007 (p. 44) http://www.icc-cpi.int/library/asp/ICC-ASP-6-20_Vol.I_Part_III_English.pdf


55

XVIII. DECISIONS CONCERNING DATES AND VENUES OF THE NEXT ASP SESSIONS

Background 182. Article 112 of the Rome Statue provides that the Assembly shall meet at the

seat of the Court or at the Headquarters of the United Nations. Similar to the fourth session, an informal extensive discussion took place, within the ‘omnibus resolution’ at the sixth session regarding the venue of the upcoming meetings of the ASP. It was concluded that the seventh session will be held in The Hague from 14 to 22 November, with two resumed sessions in New York. It was also decided that the eight and tenth session will be held in The Hague, while the ninth session will be held in New York. Length and dates for these meetings will be fixed by the Bureau.

Relevant Documents Strengthening the International Criminal Court and the Assembly of States Parties (Omnibus Resolution), ICC-ASP/6/Res.2, December 2007 (p. 44, paras 63-65) http://www.icc-cpi.int/library/asp/ICC-ASP-6-20_Vol.I_Part_III_English.pdf

COALITION FOR THE - iccnow.org · COALITION FOR THE . INTERNATIONAL CRIMINAL COURT . CICC REPORT ....

Documents

Transcript of COALITION FOR THE - iccnow.org · COALITION FOR THE . INTERNATIONAL CRIMINAL COURT . CICC REPORT ....