Latest Developments from the Assembly of States Parties to the International Criminal Court

Yasmina Gourchane
Membership and Outreach Associate, Coalition for the International Criminal Court

Each year, the member states of the International Criminal Court meet in a plenary session, known as the Assembly of States Parties. The Assembly, serving as the ICC’s legislative body, and providing management oversight, is composed of representatives of its 123 member states. It is this Assembly that debates and discusses key issues that impact the work of the Court, ultimately deciding on its budget, electing its judges and Prosecutor, among other officials, and adopting amendments to the Statute and other guiding documents of the Court. The annual session also benefits from the active participation of Court staff and officials and members of global civil society.

During the latest session, held from 2 - 6 December 2019 in The Hague, The Netherlands, the States took a number of decisions that will have a clear impact on the future of the institution. The Assembly authorized an independent experts review of the Court, in an effort to strengthen the institution; amended the procedures by which States nominate and elect judges to make the process more transparent and merit-based; reiterated their support in a resolution, particularly relevant in a year where the Court was often under attack from its detractors; and adopted an amendment to its Statute to include starvation as a war crime in cases of non-international armed conflict. States also adopted a 2020 budget, elected several officials, and  debated ways to enhance cooperation between States and the Court.

Review of the ICC

Motivated by calls for a review of the Court’s performance made by States, Court officials, civil society and other key stakeholders, the States adopted a resolution establishing a formal process to identify and implement measures to strengthen and improve the performance of the ICC and of the Rome Statute system as a whole. In the resolution that established this process, the States agreed that certain challenges would be undertaken by the Assembly, or the Assembly and the Court, together with other relevant stakeholders, while other issues would be addressed by a group of independent experts.

The nine-person Group of Independent Experts (IEG) are focused on three ‘clusters’ of work: Governance, Judiciary, and Investigations and Prosecutions. Working throughout 2020, the Group is mandated with determining concrete, achievable, actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court, to be submitted to the 19th session of the Assembly of States Parties, scheduled for December 2020 in New York.

Improving Judicial Elections

The Assembly also took major steps to improve the procedures by which States nominate and elect judges to serve at the ICC, a process that takes place every three years. The timing was key for these amendments, as States will be electing six new judges to replace one-third of its bench of 18 judges in 2020. In recent years, criticism over the quality of some judges, and their overall ability to effectively deliver justice has grown. Whether questions over the legitimacy of decisions given orally, with written decisions arriving only months later (such as in the case of Gbagbo/Blé Goudé), or a judge attempting to retain her role at the ICC while also serving as a diplomatic representative of her own country, the time was ripe to assess and improve the way in which ICC States Parties nominate and ultimately elect judges to serve at the Court.

The resolution adopted last December made formal what had been informally encouraged for many years, often by civil society, by increasing the capacity of the ACN in their assessment of candidates, encouraging the use of good domestic nomination procedures, discouraging political vote-trading in the elections, and encouraging candidates to deepen their knowledge of the ICC and Rome Statute, among others. These amendments seek to mitigate concerns such as those raised above, by providing for a more comprehensive assessment of (ideally) highly qualified candidates to serve on the bench of the ICC. 

State Support for the ICC

The ICC is no stranger to criticism, and in the last few years, has been subject to concrete threats and intimidation from many of its detractors. For example, current Prosecutor, Fatou Bensouda, has been the recipient of much political pressure during her mandate from those seeking to marginalize the reach of the Court. Last year, mainly due to her Office’s investigation into alleged crimes committed in Afghanistan by US armed forces, among others, the Trump administration revoked Prosecutor Bensouda’s visa to enter the United States, and continue today to make vague threats to other staff members in her office and their families. While Bensouda was ultimately able to travel to the United States on a restricted visa for her specific business at the United Nations, attempts at intimidation by the US do not seem to be going away. Similar attempts by other governments to discourage the work of her Office into various cases and situations, such as in Palestine and the Philippines, are not uncommon.

At each of its sessions since 2003, the Assembly of States Parties has adopted a so-called “omnibus resolution”, formally titled “Strengthening the International Criminal Court and the Assembly of States Parties.” The omnibus resolution addresses a wide range of substantive, practical, and policy issues in relation to the Court, the ASP, and other stakeholders. In recent years, it has also been a tool for states to reiterate their support for the work of the Court, and 2019 was no different.

In the adopted text, States reconfirmed their unwavering support for the ICC as an independent and impartial judicial institution, as well as their commitment to preserve its integrity undeterred by any threats against the Court, its officials and those cooperating with it,  and finally expressed concern over any measures taken against Court officials, renewing its resolve to stand united against impunity. While the adopted language does not necessarily require any action by States, it serves as an important reminder of the strength of the collective in standing up against existential threats to the Court’s mandate.

Amendments to the Statute

In order to ensure that the Rome Statute, the guiding document of the Court, remains relevant for the world in which we live, the ASP established a Working Group on Amendments (WGA) as an arena for States to put forth and discuss possible amendments to the Statute and other working documents.

In 2019, discussions of the WGA, which meets in New York and is chaired by Ambassador Juan Sandoval Mendiolea of Mexico, mainly focused on a 2018 proposal submitted by Switzerland to include starvation as a war crime in non-international armed conflicts (NIAC) under Article 8 (war crimes). During the negotiation process in 1998, the draft Statute included starvation in NIAC, but it was not included in the final draft that was adopted. Starvation as a war crime existed in the statute only in the case of international armed conflicts (IAC). Whereas the paragraph criminalizing starvation as a war crime, Article 8(b)xxv, refers to the Geneva Conventions, the language contained in the Swiss proposal instead used customary International Humanitarian Law as its legal basis for inclusion in the Statute.

During the Assembly session, the States were able to reach the two-thirds majority necessary and adopted this amendment to the Statute, criminalizing starvation as a war crime in cases of NIAC. Additionally, discussions in the WGA in 2019 included the issue of “fragmentation” of the Rome Statute, with some concerns raised about the proliferation of amendments negatively impacting the stability of the document, a discussion which will most certainly continue in the sessions of the Working Group in 2020 and beyond.

The annual sessions of the Assembly of States Parties continue to be an important event on the calendar of the ICC even for the simple fact that the ASP provides the opportunity for so many key stakeholders in the Rome Statute system to be in the same room, including government officials, Court staff, representatives of NGOs, and members of global civil society, an opportunity that doesn’t come very often. This year, even more is at stake for the ICC. The session in 2020, currently scheduled for 4 - 14 December in New York, will see the election of judges using the newly amended procedures on nominating and electing candidates, as well as the outcomes of the work of the Independent Expert Review. Ideally, these processes will be steps in the right direction towards strengthening the ICC as an institution and ensure that the ICC  and its States Parties can uphold the promise made with the signing of the Rome Statute in 1998, to deliver meaningful justice to victims on all sides of conflicts throughout the world.