Marathon diplomatic negotiation addresses aggressive war at ICC

Assembly of States Parties 2017

14 December 2017

In the very early hours of 15 December, 123 states reached consensus on bringing justice one step closer for victims of aggressive wars. 

For the first time since the post-WWII trials in Nuremburg and Tokyo, an international court may be able to hold leaders individually criminally responsible for the crime of aggression, at times referred to as the 'Crime against Peace'.

In short, the ASP decided that the Court’s exercise of jurisdiction over the crime of aggression only applies to nationals of the ICC member states who have ratified the amendments. However, ICC judges maintain their independence in ruling on jurisdictional matters. 

The activation will take place on International Criminal Justice Day - 17 July 2018 - next year, the date marking the Rome Statute's 20th Anniversary. 


Cooperation: Beyond a legal concern

Cooperation is a many-faceted component of the Rome Statute system and vital to its optimal development as an institution that can deliver effective justice to victims of war crimes, crimes against humanity, and genocide the world over. However, even forms of cooperation that are not envisaged as legally binding upon ICC member states by the Rome Statute are crucial to the sustainability of the Rome Statute system in its mission to end impunity for the worst crimes of international concern.

As the cooperation resolution adopted by ICC member states at ASP16 acknowledges, such forms of voluntary cooperation ensure the maintenance of international fair trial standards for the accused and give effect to victims' landmark rights under the Rome Statute. They ensure adequate protection of witnesses and in turn the integrity of testimony before the Court. Other forms of voluntary cooperation demonstrate genuine political will to make the ICC system as effective as possible, whether by coordinating efforts between states to ensure the Court has the resources it needs to provide reparations and legal aid, or by preserving the conditions for continued cooperation and assistance by civil society organizations.

At ASP16, the ICC member states adopted a resolution containing a number of provisions that stand to inform the cooperation that the ICC will receive from all stakeholders in the Rome Statute system's 20th year, and beyond.


How should states respond to requests for cooperation?

A specific topic of discussion the last few years - since the government of South Africa invoked Rome Statute Article 97(c) in order to explain its reasons for allowing ICC suspect and Sudanese President Omar al-Bashir to enter and leave its territory without arresting him in 2015 - has been the procedures that must be followed for Article 97(c) consultations, the outcome of which can impact the Court's judicial assessment of a member state's compliance with its obligations under the Statute. At ASP16, the Assembly adopted by consensus a resolution in which the member states agreed on an 'Understanding with respect to article 97(c) consultations.'

The 'Understanding' may impact the outcome of processes currently underway with respect to the government of Jordan's (one of three ICC member states from the Middle East-North Africa region) non-arrest of al-Bashir when he visited the country for the Arab League Summit in March 2017.

Amendments: Taking a stand against modern warfare

On the final day of ASP16, ICC member states adopted by consensus three amendments to the Rome Statute, under Article 8 ('War Crimes'). The war crimes amendments came before the Assembly for consideration this session via the UN Security-General, with whom the government of Belgium had deposited a proposal on four types of war crimes to be added to Article 8 - after the Working Group on Amendments (WGA) during the year was unable to arrive at a decision to table the proposal before the Assembly this year.

The original four war crimes amendments sought to criminalize the following conduct under the Rome Statute: the use of landmines; the use of microbial, biological or toxins weapons; the use of weapons that injure by fragments undetectable by X-rays; and the use of laser-blinding weapons. The first of these proposed amendments fell through during ASP16 negotiations, notably coming on the heels of the 20th annivesary of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction.

According to the ASP16 resolution through which ICC member states adopted the remaining three amendments, such crimes constitute "serious violations of the laws applicable in international armed conflict and in armed conflict not of an international character."

States set 2018 ICC budget

Today States decided that the Court will have €147,4 million to spend in 2018. This budget will have to cover expenses related to its Judiciary, the Office of the Prosecutor, the Registry, the Secretariat of the Assembly of States Parties, the Premises, the Secretariat of the Trust Fund for Victims, the Independent Oversight Mechanism, and the Office of Internal Audit.  The 2018 figure includes the €3,58m to be paid towards the host state loan, taken out to pay for the permanent premises of the Court. 

To prepare its final recommendations to the ASP, the CBF—a technical expert body of the ASP tasked with evaluating and making recommendations on the unique budgetary needs of the ICC—considered the various prosecutorial, judicial, and organizational requirements for 2018, as well as the Court’s obligations to defendants and victims.

After assessing the Court’s 2018 budget request of €151,4m (an increase of 4.4% to its 2017 budget), the CBF recommended that the ASP allocate €148,0m to the Court (or a 2% increase to the 2017 budget). However, after intense negotiations throughout the ASP, States landed on the figure of €147,4m.

The question of increasing the ICC judges’ salaries will be discussed by the ASP in 2018.

Setting the justice policy ahead of Rome Statute 20th

The Assembly also took a number of important decisions that stand to impact the reach and effectiveness of the Rome Statute system of justice in the year of its 20th anniversary. In adopting the 'Omnibus' resolution, a document created in an effort to strengthen the Court and the ASP, the 123 ICC member states resolved to act upon a number of important issues facing the Rome Statute system, including universality, cooperation, the Secretariat of the ASP, legal aid, victims, the ASP working methods, and participation in the ASP, among others.

The 123 ICC member states present at this ASP resolved to advance victims’ rights, stressing the "central importance that the Rome Statute accords to the the rights and needs of victims, in particular their right to participate in judicial proceedings and to claim reparations, and emphasizes the importance of informing and involving victims and affected communities in order to give effect to the unique mandate of the Court towards victims."

Futhermore, the Assembly adopted mandates encouraging the TFV Board of Directors and Secretariat to address funding and visibility, two of the most pressing issues for the Fund.

On universality, the Assembly invited non-ICC member states to ratify the Rome Statute and called on existing ICC member states to "intensify their efforts to promote" the Rome Statute system. International and regional organizations as well as civil society were called upon to join the fight for universality as well. The withdrawal of Burundi from the Statute earlier this year on the 27 of October was noted in this section with regret.

On the relationship with the United Nations, the Security Council was called upon to further strengthen their relationship with the Court by "providing effective follow up of situations referred by the Council to the Court" including financial support and further "institutionalizing Council cooperation with and support for the Court."

Relating to participation in the ASP, the Assembly, recalling the upcoming 20th anniversary of the Rome Statute, recognized the "long-term and continuing cooperation between the Assembly, States Parties, and non-governmental organizations of civil society," specifically referring to the Coalition's coordinating and facilitating role. 

What else happened?

ASP VPs appointed, recommendations on Registrar adopted

In today's morning plenary session, the Assembly formally adopted its recommendations to the Judges of the Court on the qualifications to take into account when electing the Registrar of the ICC. That election, among 12 short-listed candidates, will take place by secret ballot by the 18 ICC Judges in late March 2018. Read all about the 2018 ICC Registrar election and the Coalition's campaign around it on our website.

The last day of ASP 16 is also the last day of the current ASP Bureau’s mandate, including the mandate of the current ASP President Sadiki Kaba and the two ASP Vice-Presidents. Following the election of Judge O-gon Kwon as the next ASP President and the election of the 18 states to serve as bureau members, the ASP today elected its two Vice-Presidents for the next three years. Mr. Momar DIOP, Ambassador of Senegal to The Netherlands, will serve as the Vice-President chairing the ASP Bureau’s The Hague Working Group. The Ambassador of Slovakia to the United Nations, Mr. Michal MLYNÁR, will chair the New York Working Group.