ICC Assembly of States Parties (ASP) Meeting, The Hague, 2013 - coverage
Photo: ASP 11, The World Forum Theatre, The Hague ©CICC Roberta Celi
From 20 - 28 November 2013, States Parties to the Rome Statute of the International Criminal Court (ICC) gathered in The Hague for the 12th session of the Assembly of States Parties (ASP 12). The annual meeting of the Court’s governing body focusses on critical legal, administrative and political issues facing the ICC. Plenary sessions were dedicated to a range of issues such as state cooperation, victim participation, the Court’s annual programme budget, amendments to the Court’s legal texts and special attention was paid this year to the Court’s relationship with Africa. The IBA ICC Programme was there, along with select civil society organisations, to critically monitor and support the Court’s work.
IBA and WCRO Side Event: Regulation 55 and the Rights of the Accused at the International Criminal Court
22 November 2013, The Hague
During ASP 12, the IBA and the War Crimes Research Office of the American University Washington College of Law (WCRO), with the support of the Republic of Serbia, hosted an interactive discussion on Regulation 55 and the rights of the accused at the ICC. This event marked the launch a joint report on this topic, and the discussion was led by Susana SáCouto (WCRO) and Clair Duffy (IBA). Attendees included representatives from States Parties, ICC staff, defence counsel and civil society.
Regulation 55 has arisen in three out of the six active ICC cases, and it allows a Trial Chamber to re-characterise the facts which the charges are based on. One of its underlying rationales is a practical one – to improve the efficiency of the Court. In practice however, Regulation 55 has led to a significant amount of litigation, substantial delays, and uncertainty for the accused in relation to which charges he or she must defend against. This provision has the potential to undermine the very cornerstones of the accused’s rights to a fair trial – to be promptly notified of their charges, to have adequate time to prepare for trial and to be tried without undue delay. In light of these concerns, the WRCO/IBA report recommends that the Trial Chamber limit the use of Regulation 55 to exceptional circumstances, emphasizing that the Regulation’s application should not fundamentally change the nature of the charges.
State cooperation on ICC witness issues – the IBA’s perspective
This year the ASP hosted its second ever stand-alone plenary session on state cooperation. Lorraine Smith van Lin, Director of the IBA ICC Programme, was invited by Ambassador Anniken R. Krutnes of Norway to speak during this session. Ms Smith van Lin addressed critical issues of witness protection and state cooperation. She gave special thanks to Ambassador Krutnes for her proactive leadership as the Assembly’s cooperation facilitator and acknowledged her tireless efforts in 2013 to bring significant gains to this area, especially with regards to witness relocation.
In the course of the IBA’s monitoring of the Court in 2013, Ms Smith van Lin explained that it was apparent that numerous witness related challenges were arising in all of the ICC’s active cases. Given the crucial importance of witnesses to the Court, the Programme conducted comprehensive research and consultations with key ICC officials and staff, defence counsel, diplomatic representatives and other experts to assess the achievements, challenges and needs of the ICC in this area. The IBA published these findings in July in a report [Witnesses before the International Criminal Court] which underlines the ICC’s remarkable efforts to assist, prepare and protect witnesses in proceedings before the Court.
Ms Smith van Lin highlighted to the Assembly the increase of witness-related challenges in recent years. Significantly more witnesses are now protected by the Court, which reflects a rise in the allegations of threats and intimidation of ICC witnesses. At this juncture the IBA has identified a need to strengthen and reinforce the Court’s internal machinery to protect witnesses. Furthermore, cooperation by States is crucial to the Court’s effective function and the IBA has identified three clear gaps in this area: the number of relocation agreements with States Parties, their follow-through on pledges, and their ratification of the Agreement on Privileges and Immunities of the Court (APIC). Ms Smith van Lin further stressed that state cooperation in relation to the defence must also be part of the dialogue.
The ICC’s rocky relationship with Africa
The prevailing theme of ASP 12 was the Court’s tumultuous relationship with Africa, which has been heightened by the ongoing cases of Kenya’s President and Deputy President. On the final day of ASP 12 the President of the Assembly, Tiina Intelmann, reflected that this annual meeting of States Parties was ‘not business as usual.’ Indeed during ASP 12, at the request of the AU, an unprecedented plenary session was held on whether sitting heads of state should be immune from ICC prosecutions. And just prior to the ASP Kenya had presented several proposals for amendments to the Court’s legal texts. The Assembly ultimately decided to amend, by consensus, Rule 134 of the Rules of Procedure and Evidence (RPE) to allow for special excusals for ‘extraordinary public duties at the highest national level’.
Amendments to the ICC’s Rules of Procedure and Evidence
In addition to RPE Rule 134, the Assembly adopted amendments to Rule 100 (to expedite the procedure of holding ICC proceedings outside of its host State, The Netherlands) and Rule 68 (to streamline the admittance of prior recorded testimony into evidence). The IBA closely monitored the amendment process in 2013, particularly the discussions on Rule 68. While supporting the adoption of the amendment to Rule 68 the IBA urges a cautionary approach to its implementation by the Chambers of the ICC, in recognition of fundamental fair trial guarantees and the integrity of the historical records of international crimes being established by the Court.
Additionally, the IBA – as one of the foremost organisations engaged in monitoring the Court’s application of international fair trial standards in its proceedings and policies – will closely monitor the use of these new provisions to ensure that they are applied only in exceptional circumstances, do not erode fundamental fair trial guarantees, nor are sought to substitute already-existing mechanisms to ensure witness protection and security.
Information and key documentation about the 12th Session of the ASP can be found here
Civil society reports on the ASP can be accessed here
IBA coverage of ASP 11 (14 - 22 November 2012) can be found here