Wednesday, November 28, 2012

Reflections on the ICC Assembly of States Parties: Cooperation, complementarity, budget & R132bis

(Part 1 of a 2-part series; Part 1 is here)

The 11th Session of the International Criminal Court Assembly of States Parties (ASP) ended last Wednesday, a day earlier than scheduled. Now that all of the delegates have returned to their home countries and regular work routines, it is worth taking a moment to sum up the major accomplishments of the seven working days of the ASP and consider what to watch for ahead of next year’s meeting.
In a post filed from The Hague last week, I outlined the work of the Coalition for the International Criminal Court at the ASP. Today, I will address the ASP's substantive discussions on cooperation and complementarity, the key resolution passed, and the budget. And in a final post tomorrow, I'll consider several additional matters: elections and transparency, attention to gender issues, and relations between the court and civil society.

Substantive discussions
This year’s ASP was the first in which substantive discussions were included in the scheduled plenary sessions.
In the past, all discussion of substantive issues took place at the side events organized by civil society or informally among states delegates; the formal meetings were devoted solely to resolutions, elections, and mostly dominated by budget discussions. Yet formal sessions at the ASP are virtually the only times during which representatives of all states parties, as well as observers from nonparty states and representatives of civil society, convene in one room with time carved out for genuine dialogue.
Mainly thanks to the advocacy of the Coalition for the International Criminal Court, this year’s ASP included two rounds of substantive discussions – one on state cooperation with the court, and one on complementarity.

The cooperation discussion focused on practical solutions and innovative ideas for enhancing state efforts in support of the court, especially in terms of enabling investigations, effecting arrest warrants, and preventing the free movement of fugitives. (credit for (c) CICC/Roberta Celi photo of Serge Brammertz, Prosecutor of the International Criminal Tribunal for the former Yugoslavia, speaking at this session)
The complementarity discussion explored the ways in which capacity-building and transitional justice efforts can have spillover effects on the affected state’s rule of law and development generally, thereby improving overall governance and welfare. In their statements and interventions, many states parties delegates also emphasized national primacy over prosecution for atrocity crimes, as well as the paramount significance of domestic legislative and legal efforts.
Such expressions are in accordance with the strategic focus of the ICC Office of the Prosecutor on “positive complementarity.” But they can also be self-serving, especially when made by states involved in situations before the court. The fear is that such emphases are meant to detract attention and support from the court and reassert state control, so as to circumvent prosecution of those responsible for atrocity crimes. It is therefore worth looking closely at the domestic activities highlighted by these states, to ensure that they are engaged in genuine accountability efforts, and not merely symbolic acts devoid of substance.
Celebrating the tenth anniversary of the entry into force of the Rome Statute of the ICC, delegates acknowledged that we are no longer in the court’s establishment phase, but rather we have moved into a phase of consolidation, implementation, evaluation and improvement.
Further evidence of this comes from the UN Security Council, which held its first debate on “Peace and Justice with a Special Focus on the Role of the International Criminal Court” last month.
Accordingly, we can expect much of the upcoming dialogue on cooperation and complementarity, as well as on the court’s general functioning, to be devoted to technical issues and practical recommendations. The court and the Bureau of the Assembly of States Parties are engaged in gleaning lessons learned and best practices, and civil society will continue its watchdog efforts, pushing the court toward improvements based on these findings.
One area we will almost certainly hear more about is efforts to get states to freeze the assets of non-cooperating states parties, and even to cut off all non-essential communication with them.

The court’s annual budget was passed by consensus using a silent procedure, which meant that it was never debated in the formal sessions.
Fatou Bensouda
Much of the work went on behind the scenes by the Committee on Budget and Finance and the ASP Working Groups in The Hague and New York, as well as informally among states at the ASP. Heading in to the ASP, virtually everyone feared that the budget talks would dominate the working days and that a suitable agreement would not be reached. This would have worked to the great detriment of the court: in a September diplomatic briefing, Prosecutor Fatou Bensouda had already warned that further budget cuts could affect her office’s capacity to do its work. That a budget was approved without dominating the ASP, and that states did not impose a “zero-growth” policy or major arbitrary cuts, seemed to be taken as a general victory for all.
Still, not everyone was pleased with the budget that managed to garner a consensus.

Fearing the worst, the court had proposed as austere a budget as possible to maximize the chances of for state agreement. But many delegates expressed concern that the budget proposed was too lean for the court both to effectively handle its increasingly heavy caseload and to fulfill its other functions, such as outreach and witness protection. As exemplified by an FIDH position paper, some civil society groups were specifically concerned about the impact of budget cuts on legal aid, which finances defense and victim’s counsel. Frustration also continued to be heard regarding the two referrals in which the UN Security Council had set in motion investigations yet expressly exempted the UN from paying for such work. (Prior IntLawGrrls posts here, here, and here)
Despite this year’s smooth budgetary sailing, it is too soon to proclaim protracted and contentious budget debates a thing of the past.
Negotiations over the allocation of financial responsibility often represent tensions over deeper-seated values. In this case, withering financial resources in a recessed economy can combine with, or mask, political incentives to weaken the court. If budgetary issues surface again next year, the whispers about separately funding the court’s “core and non-core functions” might be amplified. This is a very scary prospect to many who disagree that such a division and prioritization can be made, even for budgetary purposes.

Among the eight resolutions adopted, perhaps one of the most significant is that proposed by the Working Group on Amendments adding Rule 132bis of the ICC Rules of Procedure and Evidence, which allows a single judge to function as the Trial Chamber in pre-trial preparation. This is expected to greatly expedite proceedings and ensure cost-efficiency.
Most importantly, this resolution had not only political backing, but the support of the judiciary as well. It serves as a strong example of how lessons learned are already being used to improve the court’s efficiency and effectiveness.
A summary of the other resolutions can be accessed here.

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