What to expect at the ICC’s big meeting?

14 November 2016 by Janet H. Anderson, The Hague (The Netherlands)

When state representatives and a huge host of justice NGO’s gather on Wednesday in The Hague – along with International Criminal Court staff themselves – for a week of debate about the court and setting its direction for the next year, there’ll be one major topic: the withdrawal from the court by three African countries. Burundi, South Africa and the Gambia have all announced their decisions within that last month. But the meeting itself will be about far more than that and will throw up several interesting stories for ICC-watchers.

 

Year in year out, the biggest debates at the ICC are always about money . Not just because the member states would like to spend less. But because the requests which show who is asking for which increases and why, help to show the specific directions the court is taking. This year it’s the Trust Fund for Victims which is asking for more than 30% increase. The Lubanga and Katanga cases have moved into reparation phase [IJT blog]. And the TFV is not flush with cash. So it’s asking for massive top up.

Last year budget increases came mainly from the office of the prosecutor (OTP), which had developed a new strategy, defining the size and scope of its office and specifying the flow of the investigative processes, including exactly how many they could handle each year. And the prosecutor asked the states to back her. They did to some degree. This coming year, it’s clear from the budget requests that her emphasis is on Georgia and more Georgia. And the response from the relevant committee looks encouraging. Not only are they supportive of some of the increases but –for instance – they say that because an office with 10 people has closed in Kenya and one with five will open in Georgia.

In its brief for the ASP, the ngo Human Rights Watch argues that a senior person should be in charge in Tblisi, suggesting that it would “help ensure more impact-sensitive approaches in key areas, including outreach and victim participation.”

Other places to look out for from the OTP’s request are Libya and Ivory Coast which both have new investigations scheduled. And to remember that only in September the OTP put out a new case selection and prioritization strategy which focused on what impact the court’s cases should have and – some have suggested – may tend towards looking beyond war crimes and into broader criminal networks behind crimes.

And other elements that the court deals with that have a budget increase planned include oversight and investigations into article 70 cases which means dealing with anyone who is trying to tamper with witnesses. They’ve requested a 76% increase in funding. The trial of former Congolese vice president Jean Pierre Bemba Gombo, along with his former law team, is finished, bar some appeals [IJT 195]. The Kenya cases into intermediaries alleged to have interfered with witnesses has not happened yet. But confirmed news last week emerged that a case is being made against former warlord Bosco Ntaganda. 

Also expected to be a hot topic this year, in the corridors if not officially on the agenda for the plenary sessions will be the prosecutors progress on the preliminary examination of the situation in Afghanistan. Just days before the ASP started the prosecutor's office released a report saying  there is "reasonable basis to believe" that American troops tortured prisoners in Afghanistan and at Central Intelligence Agency detention facilities elsewhere in 2003 and 2004. It added it's decision on whether or not to open a full investigation into alleged war crimes in Afghanistan was "imminent". The US is not a member state of the ICC but the prosecutor has jurisdiction over the crimes because they were committed in Afghanistan, which is a member and the alleged victims were nationals of a member state. 

Another big element this year will be the launch of the OTP’s policy on children – protecting them and working with those who’ve been in armed groups. This is pertinent as the trial of Ugandan former LRA commander Dominic Ongwen which is due to start next month. His defence has already started to position him as the victim [IJT-174] – former child soldier – who shouldn’t be held responsible for later acts.

Maybe lost in these debates will be developments in the possibility that crime against aggression could be added to the Rome statute, the founding documents of the ICC. It now has the more than 30 votes from states so that it can be discussed by the ASP members next year. Two-thirds of them will have to approve it for it to become part of Rome Statute.

But the real buzz in the corridors will be whether – particularly – the south African withdrawal is a near-death blow to the ICC with the underlying question of whether there’s any chance of the court appearing universal when significant players withdraw. Many other issues – such as should heads of state receive any form of protection from an ICC prosecution and how should states cooperate with the court are intrinsically linked to the withdrawal issue.