Assembly of States Parties: Inside the governing body of the International Criminal Court

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FIDH at the 20th Assembly of States Parties to the Rome Statute of the International Criminal Court: 6-11 December 2021

The 20th Assembly of States Parties (ASP) to the Rome Statute of the International Criminal Court (ICC) will be held in The Hague from 6-11 December 2021. FIDH’s International Justice Desk will participate together with other civil society organisations in monitoring developments and advocating for ways for States Parties to strengthen the Court. In advance of the 20th session, FIDH has prepared this position paper, with six key recommendations to States Parties. Guissou Jahangiri, FIDH Vice-President and Executive Director of OPEN ASIA – Armanshahr, will deliver a speech for the opening plenary of the ASP, and share her experiences and long-standing work in Afghanistan.

With the support of some States Parties, civil society leaders are holding various side events focusing on key recommendations to this ASP’s agenda items, including on ICC situations of international crimes with voices from affected communities. FIDH will hold three side events on: (1) the Independent Expert Review of the ICC; (2) FIDH OTP Stocktaking papers relating to sexual and gender-based crimes, preliminary examinations, and outreach to victims and affected communities; and (3) Complementarity.

FIDH Statement for the 20th Session of the Assembly of States Parties to the ICC Statute

Side events focussing on the voices of communities affected by Rome Statute crimes

The participation of civil society organisations like FIDH in the ASP enriches the debates by raising key concerns of affected communities and helping put victims’ rights on the agenda. FIDH, in partnership with other leading NGOs, is holding four side-events this year:

Independent Expert Review of the ICC: Civil Society Perspectives on Next Steps
• Wednesday, 1 December 2021 | 17:30–18:30 CET / 11:30–12:30 EST
• Hosted by FIDH, Human Rights Watch (HRW), the International Criminal Court Project (ABA’s Center for Human Rights & Criminal Justice Sections), and the Coalition for the International Criminal Court; Co-Sponsored by Chile, Finland, The Netherlands, Poland, Sierra Leone, and Switzerland.
• Virtual Zoom Side Event. View the video recording here.

The crimes against migrants and refugees in the context of the ICC Libya investigation
• Friday, 10 December 2021 | 13:00-14:00 CET
• Hosted by FIDH, European Center for Constitutional and Human Rights (ECCHR), Libyan Lawyers for Justice (LFJL)
• Virtual Zoom Side Event. View the video recording here

What is ICC Prosecutor Fatou Bensouda’s legacy?
• Tuesday, 14 December 2021 | 14:00-15:15 CET / 8:00-9:15 EST
• Hosted by FIDH, Women’s Initiatives for Gender Justice (WIGJ), and No Peace Without Justice (NPWJ)
• Virtual Zoom Side Event. View the video recording here.

Complementarity and the ICC: from preliminary examinations (Guinea, Colombia) to investigations (Sudan, Venezuela)
• Wednesday, 15 December 2021 | 14:00-15:15 CET / 8:00-9:15 EST
• Hosted by FIDH
• Virtual Zoom Side Event. View the video recording here.

What is the Assembly of States Parties about ?

1 July 2002: despite the reluctance of some major powers, such as China and Russia, to ratify the Rome Statute adopted in 1998, the International Criminal Court (ICC) was finally established. This court, based in The Hague, slowly established its place within the international community, despite certain criticisms against it, such as the fact that it was too weak vis-à-vis certain powers, and the discontent that some of its decisions generated. To date, the Office of the Prosecutor has conducted numerous investigations and thousands of witnesses and victims have been interviewed: a wealth of evidence has been accumulated and a large number of mass crimes documented. All of these efforts have led to much awaited trials and landmark verdicts. Several cases have successfully concluded, starting from the issuance of arrest warrants to the final conviction or acquittal of the accused, and orders for reparations to victims.

The Court is respected - and sometimes feared - principally because a majority of the world’s states have agreed to work together to combat impunity for the most serious crimes. This willingness has taken concrete form by the establishment of an essential body: the Assembly of States Parties (ASP). The ASP is a management oversight and legislative body in which states exchange and make decisions, notably through voting, regarding the functioning of the ICC (including voting on the budget, electing its main officials, etc.).

This is because the ICC is both an international organisation and a judicial institution. As a judicial institution, it enjoys the independence it needs to fulfil its mandate. Civil society, including FIDH, often calls for it to be respected. As an international organisation, however, states have a significant role to play. It is during the annual ASP sessions that the Registrar, judges, Prosecutor, and Deputy Prosecutor are elected.

On the organisational side, the ASP has a Bureau consisting of a president, two vice-presidents and 18 members, elected for three-year terms. These members do not necessarily have a political background: expertise in justice or international law is also taken into account when they are elected. From 2014 to 2017, the former president of FIDH, Senegalese lawyer Sidiki Kaba, was the president of the ASP, followed by the Korean judge O-Gon Kwon between 2017 and 2021. The current President, elected in February 2021, is Silvia Fernández de Gurmendi from Argentina. She also had a career as a judge, including a stint as an ICC judge, before becoming its president from 2015 to 2018.

However, the ASP does not operate in a vacuum, 123 States Parties to the Rome Statute constantly monitor the smooth running of the ICC, although some of them try to defend their own interests. Each year, they meet in The Hague or in New York. Lasting between one and two weeks depending on the year, this assembly is a unique opportunity to discuss pressing issues, and to debate the fundamental aspects of the Court’s functioning, in particular the cooperation of states with the judicial institution, the complementary nature of the cases before the ICC and those conducted at the national level, and the budget allocated for the following year.

While consensus is ideally sought during these discussions and deliberations, the debates are nonetheless lively, a sign of the real democratic character of the Assembly. At the most recent session, in December 2020, for example, states were preoccupied with the arduous choice of electing a new Prosecutor, who would have the difficult task of succeeding Fatou Bensouda from The Gambia, as well as six new judges (i.e. one third of the judges serving the Court). The election was made even more complex by the global health crisis, which forced many members to participate remotely.

Naturally, ASP member states had been given time to reflect since the announcement of the list of candidates a few months earlier, and the opportunity to engage in dialogue and debate with those seeking this key position within the Court. It was a tight race given the important position that the Prosecutor holds within the ICC edifice, and the complexity of the cases he or she would inherit, which can be subject to intense diplomatic pressure. In the end, it was the British lawyer Karim Khan, a specialist in international criminal law (Rwanda, former Yugoslavia, Iraq, etc.), who was chosen after several rounds of voting.

The ASP is also an important opportunity for civil society organisations, including those from countries where international crimes have been committed, to advocate their positions. They are given a space to raise their concerns, sometimes during plenary sessions before all the delegates of the Member States, sometimes in so-called "parallel events" in which civil society but also states and various Court officials (Office of the Prosecutor, judges, etc.) participate.

And it is here, alongside the many civil society organisations from countries directly affected by the work of the ICC, that we, FIDH, as well as our member organisations, intervene. We act, year after year, to highlight the needs of victims and affected communities, to demand effective and meaningful victim participation, and to call for progress on situations or cases that are drawn-out over too many years. Preparing for the ASP and organising these crucial discussions is one of the key tasks of FIDH’s permanent office in The Hague. Established in 2004, it is one of the oldest civil society delegations present in the capital of international criminal justice. The office is made up of people who are passionate about international justice and who fight on a daily basis to ensure that certain cases, such as those relating to the situations in Guinea and Colombia, are not buried for a long time.

FIDH itself organises accompanying events to draw attention to situations that it and its member organisations consider to be of concern, or to initiate debate on particular issues relevant to certain situations. For example, in 2020, we highlighted the challenges faced and provided recommendations relating to the situations in Mali, Venezuela and Mexico, as well as on the ongoing process of reviewing the performance of the ICC and the Rome Statute. In this way, we are able to convey the concerns and determination of survivors of mass crimes who might not otherwise have had the opportunity to make their claims to states, especially when the latter appears to have played a role in the commission of such crimes.

Each year at the ASP, we also draft a series of recommendations for States Parties. These are constructive criticisms, in which we encourage states, for example, to collaborate more effectively with the Court in their implementation of arrest warrants, or to increase the budget allocated to the institution, particularly with regard to the rights and participation of victims, which is seriously lacking.

These recommendations are published in advance of the event and distributed on site. Some of these are also presented in plenary sessions before state representatives, during a special segment granted to civil society. The task is usually entrusted to one of our Vice Presidents, representing one of FIDH’s member organisations, who, in addition to these recommendations, also raises concerns about his or her country or a situation of particular concern in the current year. This year, FIDH will take the opportunity to highlight its flagship activities and publications of the year, particularly on victims’ rights and participation at the ICC, as well as review Fatou Bensouda’s mandate and recommendations to Prosecutor Karim Khan.

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