ICC ASP 21 Side Events Notes: Amending the amendments ...

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Challenges for the Rome Statute system and the fight against impunity: I) Amending the amendments on the crime of aggression and addressing the rights of its victims, including combatants who are not protected under war crimes and crimes against humanity; II) Reforming national nomination procedures for ICC judicial candidates so that the ICC can live up to its expectation of rendering justice to victims: are States ready to turn the Independent Experts’ Review (IER) recommendations into a reality? (hosted by Parliamentarians for Global Action (PGA))
Thursday, 8 December 2022, 18:15 – 19:45  Antarctica
Website of the event: <https://www.pgaction.org/news/ra-asp-20222.html>
RATIONALE FOR THIS SIDE EVENT TO THE 23RD ASSEMBLY OF STATES PARTIES

Expectation: The International Criminal Court (ICC) has been created to be a fair, independent international judicial body that applies the highest standards of justice, based on the principle of equality of all before the law.
I) However, in the face of aggressive wars such as the one that is devasting Ukraine, the ICC may not exercise its jurisdiction on the crime of aggression unless there would be a UN Security referral (which is subjected to the veto-power of 5 permanent members) or there would be ratification of the Kampala amendments by the State that carried out the aggressive war (e.g., the Russian Federation). This is inconsistent with the jurisdiction of the ICC on genocide, crimes against humanity, and war crimes, which works automatically based on either ratification or acceptance by territorial State or by the State of nationality of the alleged perpetrator.
This situation can be remedied by amending the Rome Statute’s provisions of Article 15bis (paragraphs 4 and 5) that impede an alignment of the ICC jurisdiction on the crime of aggression to the one that exists for the other core crimes under International Law. In doing, it would be helpful for States, NGOs, and other stakeholders to recognize that the crime of aggression is victimizing an entire category of individuals who are not protected under the other core crimes, namely, combatants.
II) To uphold the rights of victims, including of the crime of aggression, to have access to remedies and justice, it is of utmost importance that the ICC judges are of the caliber to render authoritative and high-quality jurisprudence and guarantee fair trials. Therefore, the quality of the judges has fundamental importance to the performance, efficiency, and effectiveness of the ICC, which is at the heart of the long-term success of the ICC and the Rome Statute system as a whole. In its report, the Independent Experts Review (IER) panel concluded that “the ability and experience of some of the Judges who have been elected have not marked them out as Judges or jurists of the highest caliber sought by the Court”.
Despite the legal framework enshrined in the Rome Statute on the qualifications of the judicial candidates, political considerations arising during the domestic national nominations phase, and spilling into the election phase, have hindered the transparency of the process. To remedy this situation, States should equip themselves with domestic procedures guaranteeing that only the best candidates are nominated by States for the ICC judicial elections through public, transparent, and merit-based processes.
ICC judicial elections will take place next year (2023), with the nomination period already starting on 2 January 2023. As such, this side event will offer an important opportunity to facilitate the discussion among States and other stakeholders on identifying a way forward to ensure that the ACN (or other appropriate body) would be able to produce guidelines or criteria on merit-based and transparent national nomination procedures before the end of 2022.
The PGA Delegation to the 2022 ASP includes two multi-party parliamentary delegations from Namibia and Ukraine.
Sen. Boris Dittrich, Chairman, Standing Senate Committee on Internal Affairs; Board Member and Convenor, International Law & Human Rights Programme, PGA

• Introductory remarks
  
  
  
  • introduction of Parliamentarians for Global Action (PGA), an international network of legislators in over 140 elected parliaments around the globe.
    
  • Two serious problems identified in the Rome Statute (1) unbalanced treatment between triggering the Court’s jurisdiction over crime of aggression and over the rest three international crimes, (2) lack of principles and guidelines that inform national selection of candidates to the ICC.
    
  
  
• PGA’s position on the two issues:
  
  
  
  • The 12th consultative assembly of parliamentarians on the criminal court and the rules of law adopted the Plan of Action to:
    
  
  

‘Ensure that there is no impunity-gap for the crime of aggression in respect to all situations of aggressive war, starting with the ongoing war of aggression in and against Ukraine:
a. To this effect, launch parliamentary actions demanding all Governments of the 123 States Parties to realign the jurisdiction of the ICC on the crime of aggression to the regime of the Rome Statute of 17 July 1998 on genocide, crimes against humanity and war crimes, hence eliminating the norms contained in paragraphs 4 and 5 of Article 15bis of the Statute that are incompatible with the principle of equality of all individuals before the law;’
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Vigorously engage with our colleagues from all political affiliations to achieve national and multi-partisan consensus to support the adoption by our competent authorities (e.g. Ministries for Foreign Affairs) of public, transparent and merit-based procedures at the national level to make nominations for judicial positions at the ICC:
a. To this effect, call upon all States Parties to the Rome Statute to immediately implement Recommendation 377 of the Independent Experts Review report calling States to adopt guidelines or criteria to improve transparency and accountability in domestic nomination processes and meet the deadline of the December 2022 Assembly of States Parties, which is necessary to ensure that the new guidelines apply to the nominations for the six new ICC Judges to be elected in 2023.’
<https://www.pgaction.org/pdf/annual-forum/2022/buenos-aires-poa-2022-en.pdf?v=3>

• It is hoped that more concrete proposals would be presented to make progress in prosecuting aggression, and forces be united to make the ICC system more effective and impactful.
  

Dr. Yael Danieli, Founder, and Executive Director, International Center for the Study, Prevention and Treatment of Multigenerational Legacies of Trauma (ICMLT); co-founder, Victims’ Rights Working Group (VRWG)

• She presented, from a psychological perspective, the trauma experienced by combatants who are tools of an aggressive war. Such trauma is manifested not only in memory of horrifying experience, but also moral injury done to the combatants, including the impairment of interpersonal environment, and their capacity to trust.
  
• Therefore, the victims of aggressive war include not only civilians, but also combatants of both parties to the war.
  

Prof. Claus Kreß, Director, Institute of International Peace and Security Law, University of Cologne, Germany; Special Adviser for the Crime of Aggression to the ICC Prosecutor; Co-Chair, Committee on the Use of Force, International Law Association (ILA)

• He identifies three reasons to justify why a gap of prosecuting crime of aggression should be filled in the international legal architecture:
  
  
  
  • (1) War of aggression constitutes the original sin which opens the flood gate to all other atrocities.
    
  • (2) Killing of Ukrainian soldiers and some incidental killing of civilians by Russian soldiers is not prohibited under international humanitarian law. There will be senseless loss of lives of civilians and soldiers unless the Russian leaders are prosecuted for the crime of aggression.
    
  • (3) the prohibition of aggression serves the purpose of protecting a weaker State and its population.
    
  
  
• He also makes three appeals:
  
  
  
  • (1) States should change the wrong mindset that only war crimes, crimes against humanity and genocide are considered as ‘atrocities crimes’. Crimes of aggression should also count as an atrocity, given the pain and suffering it causes to soldiers and civilians. The UN Human Rights Committee also recognized that act of aggression ipso facto constitutes violation of the right to life.
    
  • (2) The State parties should initiate a diplomatic process to change the Rome Statute, so that the jurisdictional constraints to the crime of aggression can be eliminated. The UNGA should be entrusted with a referral power in case that the UNSC is unable to take action. The diplomatic action should begin immediately.
    
  • (3) Russian leaders should be prosecuted for the crime of aggression. Otherwise, a negative precedent will be set, which is detrimental to Ukraine as well as the international community, especially militarily weak members and their people located in the global south.
    
  
  

Dr. Galyna Mykhailiuk, MP (Ukraine)

• She updates the current situation in the conflict between Ukraine and Russia and the accompanied atrocities.
  
• She calls for immediate establishment of a mechanism to prosecute crimes of aggression. Time is highly important.
  
• Ukraine is not the final goal of Russia. Ultimately no one is secure unless justice is done.
  

Q&A

• Some comments from the audience:
  
  
  
  • Creating an ad hoc tribunal, based on the recommendation of the UNGA, for prosecuting aggression is more practicable than amending and fixing the problem of the Rome Statute.
    
  • The UNGA is not capable of referring a situation to the ICC like UNSC, given that it can only make recommendations, and it requires the amendment of the Rome Statute to grant the power to UNGA to make the referral.
    
  • Rome Statute contains some technical obstacles for the amendment, e.g. Article 121(5) (which requires the Court not to ‘exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory’). Nevertheless, the Vienna Convention on Law of Treaties allows temporary suspension of some provisions of a treaty in order to restore its object and purpose. Given the object and purpose of putting an end to impunity of international crimes, provisions like Article 121(5) can be suspended in order to declare the immediate entry into force of the amendments.
    
  • As for the issue of immunity, there has been solid precedent that there is no head of State immunity before an international tribunal, so States should try hard to create an international tribunal to prosecute the Russian leader’s crime of aggression.