This week, the Assembly of States Parties (ASP) of the International Criminal Court (ICC) will begin its annual meeting at the World Forum in The Hague. As in previous years, the ASP is set to discuss several important issues that will determine how the court will operate in the coming year.
The ASP is a legislative body made up of the states that have signed the Rome Statute that established the court. Each year, the ASP meets in either New York or The Hague. The ASP has several responsibilities and functions, including approving the budget of the ICC, electing the ICC judges, managing the oversight of the court, and adopting any amendments to the Rome Statute.
One of the most urgent topics for discussion this year includes whether to limit the ICC’s budget in light of ever-increasing demands for ICC activity and investigations. The possibility of a cap on the budget is particularly challenging for the Office of the Prosecutor (OTP), which is frequently asked to conduct more and better investigations into international crimes on a global scale. The OTP may face difficulties in fighting impunity if the size of the office is limited or if its resources are further restricted.
Kenya’s Proposals to the ASP
This year, Kenya has made requests to discuss two contentious issues at the ASP.
The first is a request to discuss Trial Chamber V’s majority decision to admit as evidence the statements of five witnesses who recanted their statement in court or failed to testify against Kenya’s Deputy President William Samoei Ruto and former journalist Joshua arap Sang. The majority decision applied Rule 68 of the court’s Rules of Procedure and Evidence—which was amended by the ASP in 2013—instead of Article 69 of the ICC’s founding law, or the Rome Statute. Kenya argues that the application of Rule 68 violates the principle of non-retroactivity and violates the fair trial rights of the accused. However, even though retroactive application of the rule may violate some principles of a fair trial, the issue is currently under appeal, and discussing it at the ASP risks politicizing the judicial process.
Kenya has also requested the ASP to discuss allegations by 190 Kenyan Parliamentarians that the OTP has interfered with or coached witnesses in the Ruto and Sang case. Kenya is calling for a suspension of the case and an independent audit of the OTP. However, civil society advocates worry that this would lead to political interference in the OTP and could create risks for witnesses. Instead, they suggest that Kenya take up the issue with the Independent Oversight Mechanism provided for in Article 112(4) of the Rome Statute and ASP resolutions ICC-ASP/8/Res.1 and ICC-ASP/12/Res.6.
South Africa’s Proposal to the ASP
South Africa proposed an ASP discussion on the issue of head of state immunity. This request comes in the aftermath of South Africa’s failure to arrest Omar Al Bashir, President of Sudan, when he visited South Africa earlier this year. Bashir is wanted by the ICC for genocide, crimes against humanity, and war crimes. South Africa failed to meet its Rome Statute obligation to arrest him and allowed him to leave the country, in spite of a domestic court order demanding that he stay in the country while it reviewed South Africa’s legal obligation.
In response, ICC Pre-Trial Chamber II has requested South Africa to make submissions explaining its actions. South Africa, in turn, has asked the ASP to discuss and clarify Rome Statute obligations for arresting heads of state of non-ICC members as well as to establish clear rules and procedures for consultations with states about ICC requests for cooperation. Similar to the Kenyan requests, South Africa’s requests risk political interference with the judicial mandate to interpret and apply the Rome Statute.
NGO Side Events
Civil society organizations can observe and participate in the ASP. As in previous years, the Open Society Justice Initiative is taking an active role in this year’s meeting, and will be hosting a number of key events, including on its work developing NGO Guidelines for working with the ICC and the need for ICC performance indicators. Here is schedule of side-events hosted by the Justice Initiative and its partners:
Thursday, November 19:
16:00 – 18:00: Digital Evidence: The Present and Future of ICC Investigations, co-hosted with the Berkeley Human Rights Center and Liechtenstein. Antarctica Room.
Friday, November 20:
13:00-15:00: Civil Society and the International Criminal Court: Local Perspectives on Fact-Finding, co-hosted with the Philippines. Africa Room. Copies of the 10-page briefing paper prepared for this event can be downloaded here.
13:00-15:00: Palestine and the ICC: Accountability Opportunities and Legal Obligations, co-hosted with State of Palestine, International Federation for Human Rights (FIDH), and Al-Haq. Europe 1&2 Room.
Monday, November 23:
15:00-16:30: Can another Hague-based International Court (the ICJ) Contribute to Accountability in Syria? Co-hosted with Switzerland, Germany, and Human Rights Watch. Africa Room.
Tuesday, November 24:
9:00-10:00: Why We Monitor: Engagement, Advocacy and Accountability, hosted by Radio Netherlands Worldwide. Antarctica Room
13:00-15:00: Performance Indicators for the International Criminal Court, co-hosted with the United Kingdom. Oceania 2 Room. Copies of the 12-page briefing paper prepared for this event can be downloaded here.