ICC-ASP 22: Amnesty International’s Key Recommendations

December 1, 2023

News

Uncategorized

Ahead of the 22nd Assembly of States Parties to the Rome Statute (ASP), Amnesty International publishes its Key Recommendations which we urge all states parties to consider and the Assembly to address. The recommendations focus on the plenary debates on the Assembly’s agenda, as well as key topics for discussion at the session which we urge states to reflect in their interventions and participation at the Assembly. Amnesty International’s Key Criteria for Election as a Judge to the International Criminal Court is also included as an Annex to the document and available for download below.

Recommendations are provided on: The General Debate; Judicial Elections; Opposing Double Standards and Selectivity; Threats to the ICC, including to the Court’s Independence; Proposed Budget 2024 and; Cooperation.

GENERAL DEBATE

The Assembly and its members states should make strong high-level statements in support of the International Criminal Court (ICC). In particular states should:

In the 25th anniversary year of the Rome Statute,

Affirm their commitment to strengthen the Rome Statute system and the International Criminal Court within it[1];
Recognise that cooperation and complementarity within a broader system of international justice are prerequisites for comprehensive accountability, where states parties must ensure genuine investigations and prosecutions of all persons suspected of committing crimes under international law;
Commit to ratifying the ‘Ljubljana-The Hague Convention on International Cooperation in the Investigation and Prosecution of Genocide, Crimes against Humanity, War Crimes and other International Crimes’ which fills a significant gap in the international justice framework, and should strengthen the role that national-level investigations and ‘universal jurisdiction’ initiatives must play in the Rome Statute system[2];
Recognise that a truly strengthened system of international justice requires that all situations are considered equally within such a multilateral framework;
Underscore that all international justice processes must be survivor-centred and fully realize the rights of all victims to justice, truth and reparation as a fundamental component of meaningful and effective justice;
Recognise the fundamental role of civil society and human rights defenders as integral participants in the Rome Statute system, in particular at the national-level, and as critical stakeholders to the ICC’s effective and meaningful functioning;
Recognise that the International Criminal Court and its states parties must also ensure the highest standards of human rights compliance at the ICC, particularly in relation to fair trial and due process rights of accused and acquitted persons, as well as in the realisation of the rights of victims;
Recognise that universality of the Rome Statute remains crucial, and urge all states who have not yet done so to ratify the Rome Statute, including – but not only – Ukraine as an ICC situation country;
Call on all permanent members of the United Nations Security Council to refrain from using their veto power, or threat of a veto to block referrals to the ICC Prosecutor; or in situations of genocide, crimes against humanity and war crimes.

JUDICIAL ELECTIONS

States parties should elect the most-qualified candidates in merit-based and transparent election processes, free from vote-trading and political considerations. While Amnesty International does not take a position on individual candidates, states parties are invited to take into account Amnesty International’s ‘Key Criteria for Election as a Judge to the International Criminal Court’ (see Annex I below). Generally, the Key Criteria provide that:

Judges should have proven competence in criminal law and procedure as a judge, prosecutor, advocate or in a similar capacity, including relevant practical experience of conducting complex criminal trial proceedings, fairly and expeditiously;
Judges should have proven understanding and experience of the fundamental rights of accused persons to fair trials;
Judges should have proven understanding and experience of the rights of victims to remedies and reparations, and to participate in criminal proceedings;
Judges must serve independently and impartially;
Judges should be of high moral standing.

OPPOSING DOUBLE STANDARDS AND SELECTIVITY

Amnesty International strongly opposes double standards in international justice and urges states parties to recognise that the legitimacy of the Rome Statute system and the ICC risks being undermined by a selective approach to justice.

The ICC’s legitimacy and effectiveness also depend on the OTP demonstrating – without fear or favour – that it will pursue accountability equally in all situations, including situations where perhaps only its intervention will ensure that certain crimes, perpetrators or situations are investigated.

Among other situations, Amnesty International remains deeply concerned by statements and positions adopted by a number of states which have opposed the ICC’s investigation in the situation in Palestine. The selective opposition of states undermines the trust in, and values of, international law and contributes to cementing a selective system of international justice, which would prioritize the interests of powerful states and their allies over the interests of justice for victims of crimes under international law. Amnesty International calls on governments to urge those states who have opposed the ICC’s investigation in the situation in Palestine, and other situations, to reconsider their positions and offer their full political and practical support, including offering full cooperation with the Court. Further, we urge governments to publicly distance themselves from the positions of states who have sought to undermine the ICC’s mandate.

Further, at this ASP session:

Amnesty International calls on states parties to ensure that all investigations receive the same standard of treatment at the ICC, so that all victims of international crimes have equitable access to justice and reparations at the Court;
States parties must provide robust and non-selective support to the Office of the Prosecutor so that all investigations can be pursued without distinction: into all perpetrators of atrocities, without fear or favour, and no matter how great the political or economic power of certain actors, including those who oppose the ICC’s investigations;
States parties must re-commit to comply with their Rome Statute treaty obligations, whether or not they agree with the ICC’s independent judicial and prosecutorial decisions. This includes carrying out arrest warrants against all individuals indicted for crimes within the court’s jurisdiction and requests for cooperation with all the court’s investigations;
The Assembly must ensure that states are not able to use the allocation of resources and selective cooperation as tools to influence which situations (and parties) are effectively investigated;
States parties should urgently consider that a voluntary approach to the Court’s resourcing may allow states parties to support only those situations which align with their interests – exacerbating the risk of selective justice and leaving the Court vulnerable to being influenced by powerful states.

THREATS TO THE ICC, INCLUDING TO THE COURT’S INDEPENDENCE

While attacks on the ICC and those who work with the Court are not new, Amnesty International condemns the baseless charges and arrest warrants announced by the Russian Investigative Committee (RIC) in 2023 against the ICC Prosecutor Karim Khan, six ICC Judges, including the ICC President and First Vice-President. The RIC’s arrest warrants were issued as a response to arrest warrants issued by the ICC Pre-Trial Chamber against Russian President Vladimir Putin and Russia’s Children’s Rights Commissioner Maria Lvova-Belova for war crimes. The issuance of arrest warrants by Russian authorities appears to have been done with the aim of hampering the Court in its independent investigations as well as to intimidate and harrass the ICC’s judicial officials.

In October 2023, the ICC stated[3] that it had detected ‘a serious cyber security incident’ which evidence indicated had been ‘a targeted and sophisticated attack with the objective of espionage [which] can therefore be interpreted as a serious attempt to undermine the Court’s mandate.’ While the ICC has not presently confirmed who was responsible for the attack, the Court provided that the:

‘attack comes at the time of broader and heightened security concerns for the Court: several elected officials, including Judges of the Court and the Prosecutor, have had criminal proceedings initiated against them; the Court has recently undergone daily and persistent attempts to attack and disrupt its systems; and the Court averted an almost successful attempt to infiltrate a hostile intelligence officer into the Court under the guise of an intern.’

In the same Press Release, the ICC stated that ‘As part of broader assessment into potential actions by threat actors, the Court has also identified that disinformation campaigns targeting the ICC and its officials may be anticipated to be launched in an effort to tarnish the ICC image and delegitimize its activities’.

In Amnesty International’s view, it is readily apparent that, as the ICC opens and progresses investigations into situations involving powerful states and/or states which oppose the ICC, the Court and its staff will be increasingly attacked and threatened. It is increasingly apparent that powerful non-states parties may present serious challenges to the Court. States parties must not be silent in the face of these threats – they must defend the ICC’s ability to exercise its independent mandate.

Threats also continued to be made against civil society and human rights defenders for their engagement with the Court and the Assembly of States Parties. In light of the crucial role that civil society and human rights defenders play in the Rome Statute system and at the national-level as integral stakeholders in the ICC’s work in situation countries, states parties should commit to support and protect civil society and human rights defenders in their work.

In particular, states parties should:

Call on the Russian government to drop the baseless charges issued in 2023 against the ICC Prosecutor and other ICC officials;
Strongly condemn all threats against the ICC, its staff, and those who are threatened for their work on the ICC and the Rome Statute, recognising that such threats are flagrant assaults on international justice;
Commit to cooperating with the Court and providing an increase in resources to address the growing risk of cyber-attacks and other threats which aim to incapacitate the Court;
Further consider how the Assembly could address attacks against human rights defenders and civil society working within the Rome Statute system, including in line with the ASP’s strategy for responding to attacks on the Court by all States, including by non-states parties;
Urge states parties to respond to threats against the Court through the timely issuance of high-level statements expressing support to the Court and its staff, as well as other relevant practical measures;
Provide political and other support to states who may be pressured not to fulfil their obligations under the Rome Statute, including the execution of arrest warrants and other requests for cooperation;
Recall that the Agreement on Privileges and Immunities (APIC) provides protection to Court staff and call upon states parties and non-states parties who have not done so, to ratify the Agreement;
Recognise that budgetary cuts and non-cooperation by states parties present threats to the Court’s effective functioning, as well as to the ability of the ICC to protect itself from diverse threats and actors;
Recognise that well-funded and effective public information on the Court’s activities serves to counter misinformation and powerful narratives which threaten the Court.

PROPOSED BUDGET 2024

In the proposed budget for 2024, the ICC has requested €196.82 million (excluding the ‘host state loan’) or an increase of 16% from its 2023 approved budget of €169.64 million. The Committee on Budget and Finance (‘CBF’) has recommended that the court’s proposed budget could be cut to €184.8 million, which would represent an increase of 8.7% from the 2023 approved budget. The CBF has also recommended that the Assembly should urgently replenish the ICC contingency fund – which may be depleted at the end of 2023 – to at least the ‘notional level’ of €7 million. The Contingency Fund is required for the Court to address unforeseen and unavoidable expenses incurred during the course of a year.

This year, the impact of the Assembly’s underfunding of the ICC has once again been starkly evident. The lack of funding requested by the OTP and provided by the Assembly to a number of situations has thwarted justice in 2023. While a fully resourced and effective ICC investigation in the Palestine situation may not have stopped the commission of Rome Statute crimes, the result of OTP inactivity, due in no small part to under-resourcing, has been a lack of accountability which is one of the root causes of war crimes and crimes against humanity that continue in Israel and the Occupied Palestinian Territories. Similarly, the completed Nigeria preliminary examination remains hibernated without an OTP request to authorise an investigation, with every year of delay affecting the prospects of any effective and meaningful trials. In terms of impacts on the Court’s victims rights mandate, ICC units focussed on victims rights, including those related to public information and outreach require staff, resources for translation and for assistance to victims, and in general to ensure that victims can meaningfully and effectively participate both at the pre-trial phase and in any subsequent judicial developments.

As Amnesty International has previously raised, the impact of chronic underfunding and budget appropriations which do not align with the demands on the ICC will continue to adversely affect the Court’s delivery of justice. Ultimately, the cost of chronic underfunding falls not only on the Court but on victims who look to the ICC for redress. Underfunding the ICC’s investigations allows cycles of impunity to continue, with the cost ofof any future ICC intervention multiplying with every cycle.

In 2024, it is clear that the ICC will require significant resources to meet demands for justice and Court-related activities in several situations. Further investment is also needed to counter threats to the Court’s work and security challenges, and to engage victims more effectively – particularly on the ground in situation countries. As such, a 2024 budget allocation which barely absorbs inflationary pressure, or UN staff-related costs, will leave the Court in a position where it may just be able to cover the same level of costs in 2023, but at the expense of not being able to undertake – let alone increase – its activities.

Amnesty International is acutely aware that states who do not want the ICC to investigate certain situations may seek to weaken the Court through an inadequate budget allocation. With the Court’s major funders having expressed their past opposition to the Palestine investigation for example, coupled with the risk that states will continue to impose arbitrary financial restrictions, we remain concerned that political considerations will affect the work of the Court and the OTP, and leave victims of international crimes with reduced prospects for justice. With this in mind, states parties who claim to support universal justice must firmly resist arbitrary limits on the Court’s resources as unacceptable infringements on the ICC’s ability to carry out its independent mandate.

In relation to ‘voluntary funding’, Amnesty International remains concerned about a voluntary approach to the Court’s resourcing[4]. Such a practice may allow states parties to support only those situations which align with their interests – exacerbating the risk of selective justice and leaving the Court vulnerable to being influenced by powerful states. Further, while voluntary contributions can be an important source of additional funds for the ICC, they are not a reliable or sustainable source of funding to conduct core activities effectively, such as investigations. Lastly, we remain concerned that voluntary funding provided to the Office of the Prosecutor has lead to asymmetrical growth and shortfalls in capacity, capabilities and funding across the various other organs of the Court.

With this in mind, states parties should:

Commit to providing the Court, at a minimum, with a 2024 budget of €184.8 million as recommended by the CBF – rejecting any possible attempts at further arbitrary cuts to the Committee’s recommendations;
Recognise that demands on the ICC and for international justice continue to grow, and commit to providing the Court with an increased budget in 2024 to enable it to fulfil its independent functions effectively, while also committing to further investment which is necessary in the coming years to address the Court’s capacity crisis;
Recognise that annual arbitrary restrictions of the Court’s budget by the ASP have severely hampered the OTP and other ICC organs’ activities in many situations; which has severely affected the potential impact that the Court could have had in situations which continue up to the present to be marked by cycles of impunity;
Highlight the threat to the Court’s independence and impartiality if states are to able use their resources and cooperation as tools to influence which situations (and parties) are effectively investigated;
Recall the crucial importance that all investigations receive the same principal standard of treatment, including in resource terms, so that all victims of international crimes have equal access to justice and reparations at the Court;
Consider legitimate concerns that a two-tier system of justice may emerge as a result of a voluntary resourcing approach;
Recognise that the continuing resort to voluntary contributions and seconded personnel – while sometimes warranted – is not without significant risks to the independence and effective functioning of the Court;
Urgently consider the sustainability and consequences of a voluntary funding approach as a response to the Court’s chronic capacity crisis and for the long-term effective functioning of the Court;
Take immediate steps to ensure full transparency regarding the receipt and assessment of voluntary contributions and how the money received is spent.

COOPERATION

Timely and full cooperation with the ICC goes to the heart of states parties’ obligations within the Rome Statute. As the demands on the ICC continue to increase, the cooperation of states is critical to ensure: efficient and effective investigations and prosecutions; fair and expeditious trials for accused persons; and the effective and meaningful participation of victims and affected communities in the Court’s work. Increasingly complex security situations also require enhanced cooperation from states parties (for example to assist the OTP in obtaining evidence from vulnerable witnesses), and the ever increasing recourse to digital evidence requires the cooperation of many actors.

The execution of arrest warrants is a fundamental obligation of states parties. At this Assembly session, it is deeply concerning to recognise that, in 2023, no ICC arrest warrants were executed, with a number of suspects remaining ‘at large’ and their whereabouts unknown. In this regard, states parties must urgently consider their own performance shortcomings and how they can properly and fully meet their obligations in the Rome Statute as they relate to cooperation. On the part of the ICC, the tracking and arrest of suspects who are sought by the Court is a core function within the mandate of the OTP. However, insufficient resource allocation has meant that this OTP function has not been properly developed and exploited, and sufficient resources are required to drive an active and ongoing tracking activity. In this regard, the 2023 proposed budget provides that the Suspects at Large Tracking Team currently does not have the necessary resources to undertake its core activity. This remains a critical gap in the OTP’s operational capacity and a strategic risk. In our view, therefore, it is imperative that the Assembly in particular commits to properly funding this area of OTP capacity, which is central to the progression of the judicial process and ultimately to victims realising their rights at the ICC.

States parties should:

Commit to and urge other states – including non-states parties – to cooperate promptly and fully with the ICC, including in the execution of 16 sixteen outstanding arrest warrants – including those issued in March 2023 for President Vladimir Putin and Ms Maria Alekseyevna Lvova-Belova in the context of the Ukraine situation;
Commit to strengthening the Court’s capacity to effectively investigate and pursue the identification, freezing and seizure of assets including for reparations as provided in Article 75(4) of the Rome Statute and Rule 99(1) of the Rules of Procedure and Evidence;
Urgently discuss the strengthening of cooperation as it relates to defence matters, which remain largely overlooked by the Assembly, as well as the need for states parties to enter into voluntary agreements with the Court in matters relating to accused persons and acquitted persons[5] – recognizing that such agreements are necessary for the Court to comply with its fair trial and other human rights obligations;
Call on states parties to consider the rights of acquitted persons, and how they can be fully realized, including through the entering into of acquittal agreements;
Commit to and urge other states to promptly ratify or adhere to – without making any reservations – the Agreement on Privileges and Immunities (APIC), recognising that the APIC allows the Court and its staff to fulfil their mandate in any territory subject to the jurisdiction of states parties.

ANNEX 1

ICC-ASP 22: Key Criteria for Election as a Judge to the ICC

States parties should elect the most-qualified candidates in a merit-based and transparent election process, free from vote-trading and political considerations. Amnesty International urges states parties to give due consideration to equitable geographical distribution, the representation of principal legal systems, and balanced gender representation.

Amnesty International does not take a position on individual candidates who are nominated by States.

However, states parties are invited to take into account the below criteria in electing candidates:

HAVE PROVEN COMPETENCE IN CRIMINAL LAW AND PROCEDURE AS A JUDGE, PROSECUTOR, ADVOCATE OR IN A SIMILAR CAPACITY, INCLUDING RELEVANT PRACTICAL EXPERIENCE OF CONDUCTING COMPLEX CRIMINAL TRIAL PROCEEDINGS, FAIRLY AND EXPEDITIOUSLY

ICC proceedings involve complex issues of criminal procedure, including for example, highly dynamic issues of witness management or handling of evidence. As such, judicial candidates should have: knowledge of and practical experience in criminal law and practice, including trial procedure; experience managing complex criminal trials (see pp. 966 here) and; experience in international criminal law and procedure, as relevant to the judicial work of the Court.

When assessing the competencies of all candidates in accordance with article 36(3)(b) of the Rome Statute, Amnesty International urges states parties to have particular regard to the minimum requirements for admission to the ICC list of counsel which are provided in Rule 22 of the ICC Rules of Procedure and Evidence, read in conjunction with regulation 67 of the Regulations of the Court. The Guide for applicants to the ICC List of Counsel and Assistants to Counsel* provides that in order to be admitted to the ICC List of Counsel, prospective defence or victims’ counsel are only qualified if they meet the following three criteria: i. A minimum of ten years of relevant experience (five years for assistant counsel); ii. In criminal proceedings; iii. As a judge, prosecutor, advocate or in other similar capacity.

In our view, ‘Extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court’ in article 36(3)(b)(ii) should be interpreted to require proven competence in criminal law and procedure and relevant experience in conducting complex criminal law proceedings. Accordingly, ‘competence in relevant areas of international law’ is a highly preferred quality for all ICC judges and supplementary to practical experience in complex criminal law and procedure.

HAVE PROVEN UNDERSTANDING AND EXPERIENCE OF THE FUNDAMENTAL RIGHTS OF ACCUSED PERSONS TO FAIR TRIALS

Article 67 of the Rome Statute provides for the fundamental rights of the accused to a fair trial at the ICC, including the right to be tried without undue delay through public, impartial, and fair hearings.

Judicial candidates should have excellent knowledge of the international and regional legal frameworks and case law relevant to the fundamental rights of the accused and proven experience in ensuring that the rights of the accused are fully realised, including through an effective defence. While not conclusive, Amnesty International notes that candidates with relevant experience in criminal proceedings as a judge, prosecutor, advocate or other similar capacity, may have first-hand understanding of the rights of the accused to effective legal representation and competence to manage complex criminal proceedings in a fair and expeditious manner.

HAVE PROVEN UNDERSTANDING AND EXPERIENCE OF THE RIGHTS OF VICTIMS TO REMEDIES AND REPARATIONS, AND TO PARTICIPATE IN CRIMINAL PROCEEDINGS

The Rome Statute provides that victims have a right to participate in proceedings: Article 68(3) states that ‘where the personal interests of victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court’. Article 75 of the Rome Statute provides that victims have a right to reparations.

Judicial candidates should have excellent knowledge of the international and regional legal frameworks and case law relevant to the right to remedies and reparations, including compensation and rehabilitation of victims. Judicial candidates should also have excellent knowledge of the rights and needs of victims, including victims of sexual and gender-based crimes; and crimes against children. Candidates should have proven experience in ensuring that victims’ perspectives and their rights have been realised through, inter alia, investigations; prosecutions and; effective and meaningful participation in trial proceedings.

SERVE INDEPENDENTLY AND IMPARTIALLY

ICC judges must be fully independent from States. Accordingly, Article 40 of the Rome Statute and articles 3 and 4 of the ICC’s Code of Judicial Ethics (‘CJE’) provide that ICC judges shall be independent and ‘ensure the appearance of impartiality in the discharge of their judicial functions’ and ‘shall avoid any conflict of interest, or being placed in a situation which might reasonably be perceived as giving rise to a conflict of interest.’ Article 10 CJE provides that judges shall not exercise any political function.

BE PERSONS OF HIGH MORAL STANDING

States parties must elect people of high integrity in their personal and public life. ICC judges must not have been involved, by act or omission, in any violation of international human rights law or international humanitarian law.

Article 8 CJE provides that in conducting judicial proceedings, ‘judges shall avoid conduct or comments which are racist, sexist, or otherwise degrading.’

ICC judicial candidates must not have, by words or conduct, manifested or appear to have condoned bias or prejudice, including, but not limited to, bias or prejudice based upon age, race, creed, colour, gender, sexual orientation, religion, national origin, disability, marital status, socioeconomic status, alienage or citizenship status. Similarly, judicial candidates must not have discriminated against or harassed an individual on any of these grounds.

*The Guide for applicants to the ICC List of Counsel and Assistants to Counsel provides [emphasis added]:

‘To be admitted to the List of Counsel, candidates must meet the following requirements: Competence: Candidates shall have proven competence and expertise in international or criminal law and procedure.

Experience: Candidates must have a minimum of ten years of relevant experience in criminal proceedings as a judge, prosecutor, advocate or in other similar capacity. Professors of law meet this requirement only where they have intervened in criminal proceedings for a minimum of ten years in one of the capacities listed above; otherwise, they can be admitted to the List of Assistants. […] To be admitted to the List of Assistants, candidates must meet one of the following two requirements: Five years of relevant experience in criminal proceedings [or] specific competence in international or criminal law and procedure’.

[1] Amnesty International, International Justice Day: Harnessing the Rome Statute and strengthening the system of international justice

[2] Amnesty International, States agree landmark treaty to help deliver justice to victims of genocide, crimes against humanity and war crimes

[3] See, Measures taken following the unprecedented cyber-attack on the ICC

[4] Amnesty International, Voluntary Contributions – Solution to the ICC’s Funding Crisis or Threat to its Independence and Effectiveness?

[5] Amnesty International, State non-cooperation and failure of international criminal tribunals to ensure release threaten the legitimacy of international justice