K. Tjart

From the 14th Assembly of States Parties of the International Criminal Court – News about ‘Orphan’ Crimes, Fact-finding and Complementarity

K. Tjart

Today is the international day to end violence against women. That important subject has been given – and continues to receive – significant attention during this year’s Assembly of States Parties of the International Criminal Court (ASP of the ICC). This year’s ASP, which is by now the 14th edition, started on Wednesday 18 November and will last until tomorrow, Thursday 26 November.

Perhaps every participant gets the ASP he or she wishes for because this ASP has already been very stimulating and promises to continue to be until the end. Three topics that require emphasis, gained the attention they deserve during both plenaries and side-events.

First, sexual and gender-based crimes (SGBC) were the subject of many constructive discussions. At the Institute, we consider SGBC to be an orphan crime. Orphan crimes are crimes that are, to put it shortly, riddled with misconceptions. These misconceptions make it very difficult to investigate, prosecute and ultimately adjudicate these crimes. SGBC have been the focus during several – past and upcoming – side-events as well as plenary debates. Most of these events paid due attention to the stereotypes and misconceptions that make it so difficult to deal with these crimes effectively.

Moreover, fact-finding in a broad sense was highlighted, in the sense of a more holistic approach that encompasses standards for both criminal investigations and monitoring, reporting and investigating of gross human rights violations. Not only did side-events highlight criminal investigations but also contributions by professionals and lay persons who could document serious violations of international law which, if done properly, could assist prosecution efforts.

Third, the two co-focal points for complementarity – the embassies of Sweden and Botswana (which with The Hague Institute collaborated on 25 March on SGBC) also focused on complementarity with regard to SGBC.

All three aforementioned topics are integral to the flagship project of ACT, Accountability and Civic Trust, under the Rule of Law Program. This project seeks to foster credible accountability on the basis of proper fact-finding efforts, which ideally will help to foster trust by individuals concerned with the rule of law to promote a culture of justice at local, national, regional and international levels. ACT offers discreet professional services to policy-makers from diverse audiences, often by means of off-the-record expert exchanges and the sharing of good practices.

Though the focus on these three crucial aforementioned topics indicates vital progress made, this year’s ASP also found itself undermined by the proposals of the Governments of Kenya and South Africa. These two States have proposed three additional items concerning Rule 68 and Articles 97 and 98 of the Rome Statute that established the ICC.

The first issue concerns the retroactive application of the amendments to the rule concerning the use of prior recorded witness testimony which were adopted at the 12th ASP and which is a judicial matter that is currently pending before the ICC (ICC Decision on Prosecution Request for Admission of Prior Recorded Testimony’ issued on 19 August 2015 in the case of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang). The second issue concerns the ICC’s proceedings conducted around President Omar al-Bashir’s visit to Johannesburg in June 2015 to attend an African Union Summit. This request by South Africa questions the Pre-Trial Chamber’s decision that South Africa had an obligation to arrest him and proposes a draft decision on process for adoption of new rules and procedures relating to consultation with the court on cooperation issues.

However, the impact of those two proposals should also not be exaggerated. This ASP continues to deal with initiatives on the three subjects mentioned above, for example by our South African partner organization, the Institute for Justice and Reconciliation. Just now I have had the pleasure of participating in their side-event on SGBC from 13.30-15.00pm. All in all, I am happy to report that on the International Day to End Violence against Women the ASP focused on this very same issue.

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