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Human Rights Watch Briefing Note for the Twenty-First Session of the International Criminal Court Assembly of States Parties – Human Rights Watch

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November 2022
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The states parties to the Rome Statute of the International Criminal Court (ICC) will meet from December 5-10, 2022, in The Hague for the annual session of the Assembly of States Parties (ASP).[1]
This July marked the 20th anniversary of the entry into force of the Rome Statute, the ICC’s founding treaty. The Assembly session takes place at a moment of renewed attention on the role of the court. The expansion of the conflict in Ukraine in February 2022 has generated a strong response from the international community, including through the swift activation of several mechanisms that could contribute to delivering justice for victims of serious international crimes.[2] On March 2, the ICC prosecutor announced the opening of an investigation into the situation of Ukraine, following a referral by an unprecedented number of states parties.[3] 
The horrific situation in Ukraine offers opportunities as well as challenges for the court and the international justice project more broadly. On the one hand, the referral to the ICC has generated unprecedented support for accountability for grave international crimes and put into sharp focus the relevance of the ICC as the cornerstone of a broad system for justice envisioned by the Rome Statue. On the other hand, Ukraine has highlighted the unevenness in victims’ access to justice. For example, states parties have been slow to address a growing gap in the resources available to the court even after the previous prosecutor clearly indicated that the court’s limited budget was a factor in limiting the access of victims to justice. By contrast, after the opening of the Ukraine investigation, some states parties responded with enthusiasm to the prosecutor’s call for voluntary contributions to support the office’s work, at times explicitly linking their contributions to political support for the Ukraine investigation. 
To build on the current momentum, while advancing support for the international justice system worldwide, Human Rights Watch has set out a “checklist” of five areas for action that all governments can take. These are:
Human Rights Watch calls on justice-supporting governments to refer to this checklist of actions in considering where they could bolster their commitment. At the upcoming Assembly session, states parties will have the opportunity to advance a number of these areas as they relate to the work of the ICC, particularly by ensuring that the court has the support it needs to carry out its mandate effectively and consistently across all situations under its jurisdiction. The renewed political commitment to the ICC that has derived from the interest by a substantial number of states parties in addressing the expanded conflict in Ukraine needs to translate into robust financial, political, and practical support for the court’s global mandate. This year alone, in addition to Ukraine, the prosecutor has sought to move forward investigations in the Philippines and Venezuela and has received authorization to resume the paused Afghanistan investigation. The Office of the Prosecutor (OTP) has formally closed preliminary examinations in Colombia and Guinea in deference to national proceedings, but has indicated its determination to continue to monitor progress with a view toward reopening examinations in the absence of credible proceedings.[5] And while the OTP has signaled that it may seek to finalize its investigative activities in some of its longstanding investigations, there remains important work to be done across the court’s situations to contribute to comprehensive accountability and to ensure a lasting legacy of national rule of law.[6]
This briefing note sets out recommendations to states parties for the Assembly session in the following priority areas: 1) ensuring support for the court’s global mandate, including by changing the terms of the discussion around adequate financial investment in the court’s regular budget; 2) moving the ongoing review process anchored in the Independent Expert Review (IER) forward and holding a stakeholder conference on the occasion of the 25th anniversary of the adoption of the Rome Statute; 3) the election of the registrar and other steps to strengthen ICC elections; and 4) addressing threats and obstruction to justice before the ICC.
Between March and April 2022, the situation in Ukraine was referred to the court by the largest group of states parties by far to take this step to date.[7] On March 7, soon after his decision to open the investigation, the ICC prosecutor called on states parties to provide his office with additional resources to support its work across all situations through voluntary contributions and gratis personnel.[8] To this end, the court established a dedicated Trust Fund to bolster the work of the OTP in three specific areas: the use of advanced technological tools and equipment in the collection, analysis, and processing of evidence; the provision of psychosocial support to witnesses and survivors; and the investigation of crimes involving sexual and gender-based violence and crimes against children.[9] The Trust Fund has a notional level of €15 million and a limited duration of three years.[10]
The Assembly’s Committee on Budget and Finance, a technical body charged with reviewing the court’s proposed annual budget and making relevant recommendations to the Assembly, reported that several states parties have since committed about €8.6 million to the Trust Fund and the European Union offered an additional €7.25 million to enhance the technological tools used by the office for the collection, processing, and storage of evidence.[11] In addition, as of October 15, “a total of 74 national experts from judicial, law, military and law enforcement agencies were committed by State Parties on a secondment basis for all situations.”[12]
Although the Committee did not include a list of contributing states, based on Human Rights Watch’s monitoring of publicly available information, the vast majority of the state contributors to date appear to be from the Western European and other states and the Eastern European states regional groups.[13] This is also true for 38 out of the 43 states parties that have referred the situation of Ukraine to the ICC.[14] While the positive response of ICC states parties to the prosecutor’s request signals a strong commitment to justice, it should also serve as an acknowledgment that the court does not have the resources necessary to fulfill its mandate. This is a concern that has been consistently raised by court officials long before the expansion of the Ukraine conflict.[15] Furthermore, the making of these contributions in close proximity to the opening of the investigation in Ukraine has raised perceptions of politicization in the court’s work as it appeared that they were directed to support the work of the OTP solely in that situation.[16] Although voluntary contributions to the court cannot be earmarked to a specific situation and the prosecutor has repeatedly emphasized that these additional resources are going to support the work of his office across all situations, several states parties linked their contributions to Ukraine in their public messaging.[17] This could undermine the ICC’s legitimacy, including in the Ukraine investigation itself.
The upcoming Assembly session is a crucial opportunity for states parties to dispel perceptions of politicization of the court’s work. This year, states parties should back up their stated commitments to justice with the resources the court needs to do its job. Indeed, states parties can send the strongest possible political signal of support for the ICC, its global mandate, and the right of victims of serious crimes to access justice, by strengthening the court’s regular budget to ensure that all the court’s organs can robustly and consistently execute their work across all situations.
ICC states parties will decide the court’s budget for the coming year during this Assembly session. For 2023, excluding payment on the host state loan, the ICC has requested 183.24 million or an increase of 21.1 percent above its €151.26 million budget approved for 2022.[18] The Committee on Budget and Finance has recommended a number of cuts to the court’s proposal, which if adopted, would leave the court’s budget at €176 million, or an increase of 16.3 percent from last year.[19]
For more than a decade, an insistence by some states parties on a strict, zero nominal growth approach to setting the court’s budget has been a key factor in distorting budget negotiations away from discussion of the real investment needed at the court. Shortfalls in the court’s resources have become increasingly evident.[20] Some states parties adopting a zero-nominal growth position have previously linked their approach to a call to improve the court’s efficiency and effectiveness.[21] A multi-year review process, discussed below, has provided a common framework within which the court, states parties, civil society, and other stakeholders to better able to evaluate where change is needed, including with regard to increased resources.
Against this backdrop, states parties should seize the opportunity to change the terms of this debate away from a race to hold down the bottom line arbitrarily, with a view to longer-term planning and sustainability. In budget negotiations and at the Assembly session, states parties should highlight the need to ensure equal access to justice to victims across and within all ICC situations, building on momentum generated by the attention to the work of the ICC in Ukraine, and expressing a willingness to consider this year, and in coming years, the investment in the court’s regular budget that will be necessary to realize this goal.
In addition to the natural effects of inflation worldwide, the court’s request for a substantial increase is the product of its substantial workload across organs. This includes 10 active investigations and at least three simultaneous trials in 2023.[22] The court has requested additional resources in a number of key areas such as victim and witness protection, outreach, and country presence, as well as for the implementation of several IER recommendations.[23]The latter include additional personnel in the prosecutor’s Public Information Unit, and the further institutionalization of the positions of Focal Point for Gender Equality and Ombudsperson.[24]
Despite these positive trends, the budget proposal also reveals ongoing resource constraints that stem from years of underfunding and could severely affect the court’s delivery of justice:
One significant challenge in this year’s budget negotiations seems to be the ongoing lack of clarity among states parties regarding the relationship between the voluntary contributions made following the prosecutor’s request earlier this year and the court’s proposed budget. While it is important for states parties to better understand how these relate to each other and, in particular, the concrete effect that these financial and personnel contributions have on the budget, states parties should not conflate the two and distill the different purposes they serve.
Voluntary contributions are not a sustainable funding model, and their use is highly regulated, while the general budget supports the work of the court across organs, providing predictability and sustainability.[30]
States parties that in the past have taken a strict, zero nominal growth approach to negotiations over the court’s budget have also been among the contributors to the Trust Fund.[31] One-time voluntary contributions geared towards supporting the work of the Office of the Prosecutor in specific areas do not dispense with the obligation to provide the court with the resources it needs as part of its regular budget to sustain its core activities across organs.[32] States parties should avoid language suggesting that any budget increase, if agreed this year, is exceptional; instead, the focus should be on insisting on a dialogue and budget negotiations that provide space for the court to bring forward its full resource needs and for states to respond accordingly, without reference to arbitrary limits, including strict zero-nominal growth approaches or budgetary envelopes.
Finally, in addition to adopting an annual budget that will ensure that all organs of the court have sufficient resources to execute their respective roles across situations, states parties should consider increasing the contingency fund. This fund is meant to cover any unexpected expenditure, and therefore is not included in the court’s proposed annual budget, such as those deriving from the execution of an arrest warrant or the opening of a new investigation.[33]
While it is positive that the Committee on Budget and Finance recommended replenishing the fund’s notional level of €7 million, the notional level itself should be increased to put the court in a position to respond to major developments and sustain its activities across all situations.[34] This would also be in line with IER Recommendation 141.[35]
The Committee on Budget and Finance also recommended replenishing the working capital fund, which was established to meet the court’s short-term liquidity problems pending receipt of assessed contributions by states parties.[36]
International law recognizes the right of all detained persons to family visits.[37] The ICC presidency, in a March 2009 judicial decision, held that the ICC has a positive obligation to fund family visits of indigent persons in order to give effect to their right to family visits. In November 2009, however, the Assembly passed a resolution reaffirming many states parties’ position “that according to existing law and standards, the right to family visits does not comprise a co-relative legal right to have such visits paid for by the detaining authority or any authority.”[38] In 2010, the Assembly established a Trust Fund for family visits for indigent detainees to ensure that family visits are now funded entirely through voluntary contributions.[39]
Unfortunately, since then, states parties have not followed through on the creation of the Trust Fund, which at times has dipped to a zero balance. Voluntary funding for any court activity raises significant concerns, including in terms of sustainability, and allowing defense rights to turn on voluntary funding is an abdication of state party responsibility.
At the time of writing, states parties, in the context of the Assembly’s cooperation facilitation, agreed to allow the court to exceptionally use its regular budget to subsidize family visits for indigent detainees. This would be an important development to ensure the rights of detained individuals; however, the agreed language raises concerns as it limits the ability of the court to provide such subsidy “within existing resources” and it “recalls that the Trust Fund for Family Visits shall continue to be administered on a cost neutral basis.” This is incompatible with the already strained budgetary context in which the court operates, and states parties should account for the resources necessary for this subsidy in the regular budget.
In December 2019, the Assembly commissioned a group of nine independent experts (the IER) with assessing the work of the court to make “concrete, achievable, actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole.”[40] In September 2020, the IER issued its final report with nearly 400 recommendations addressing court-wide matters, organ specific matters, and issues related to the role of states parties, the Assembly, and other oversight bodies in the governance of the court.[41] In the last two years, states parties and the court, in discussions with other relevant stakeholders, including civil society and the experts, have been assessing those recommendations with a view toward their implementation.
Since the last Assembly session, pursuant to a resolution and a proposed Comprehensive Action Plan (CAP),[42] a Review Mechanism (consisting of two state party representatives and ad-country focal points) as well as relevant ASP mandates continued their assessment of recommendations of the IER by cluster. In June and August respectively, the Review Mechanism provided a report on its work along with an updated Matrix tracking the progress made in different forums during this assessment phase.[43] The CAP anticipates that some recommendations will be assessed in the first semester of 2023. However, Human Rights Watch’s understanding is that the Review Mechanism intends for the bulk of the assessment phase to be completed ahead of the upcoming Assembly session, notwithstanding some delays in the assessment of recommendations assigned to some facilitations. The Review Mechanism has also convened two roundtables to discuss the implementation of recommendations that were positively assessed.[44]
As the IER’s assessment phase seemingly nears “completion” it is crucial to recognize the ultimate goal of the overarching review process: bringing about changes needed to strengthen the court’s performance and its effective delivery of justice. While the Review Mechanism’s mandate should not last indefinitely and may come to a formal endpoint, the implementation of the recommendations will continue, likely for several years. Moreover, efforts to improve the court’s performance should remain part of the court’s regular work, in partnership with the Assembly and other stakeholders, including civil society within the international justice movement.
As the assessment phase approaches completion, some lessons can already be drawn from progress to date.
Looking ahead, as the IER assessment process seemingly nears completion, the court, states parties, and civil society should create further opportunities to reflect on the review process and take stock of what tangible results have been achieved, prior to the formal conclusion of the Review Mechanism’s mandate. With more time, this should include assessing whether the key objective of strengthening the court’s delivery of justice has progressed and what concrete outcomes have been achieved. It should also include what gaps remain for future work, including because they were not addressed by the IER or the broader review process. For example, some issues that relate to the responsibilities of states parties and the ASP or victims’ related issues that were discussed by the IER’s analysis but were not included in their express recommendations. 
As the assessment phase, according to the CAP, approaches its conclusion, the key question is what comes next to consolidate progress and advance further improvement, while avoiding any backsliding. While the court has indicated in its reporting that many of the recommendations have been implemented (or are in the process of being implemented), the implementation by both the court and states parties of all the recommendations that were positively assessed will take time. There is a need to ensure that progress achieved by the review exercise is not lost and that the court, supported by the Assembly and other stakeholders, continues to work toward the goal of progressively strengthening its delivery of justice.
Over the past two years, the Review Mechanism has provided an important platform for discussion on a variety of topics and the centralized coordination of a complex and multifaceted process. Despite the ambitious goal to conclude the bulk of the assessment phase this year, states parties should consider a limited renewal of the Mechanism’s mandate as part of a “transition” phase, both to finish any outstanding assessments as well as to provide guidance on the best way forward for the implementation phase.
With an extended mandate, the Review Mechanism should present states parties with a plan for the implementation phase, taking into account the following principles:
IER Recommendation 363 refers to convening a stakeholder discussion with the aim of enabling the court and the Assembly to “focus their efforts of implementing the Rome Statute in the same direction.” The recommendation also refers to a 10-year strategic vision for the court backed by a shared understanding of the resources, cooperation, and institutional development necessary to achieve that vision.
The Assembly and the court positively assessed IER Recommendation 363, but without a detailed discussion of its content. This recommendation recognizes the existential crossroads at which the court finds itself. It intends to create a platform for constructive dialogue about the financial, political, and practical support required for the court to be able to meet multiplying demands. Such dialogue should then lead to a shared political commitment among ICC member countries to meeting the resources – through the court’s regular budget – cooperation, and institutional developments necessary to support the strategic vision the court might develop.
A stakeholder conference in July 2023, on the occasion of the 25th anniversary of the Rome Statute, as proposed by the Assembly president, can be a moment to focus on the first part of the recommendation by convening a discussion between the court, states parties, and civil society on aligning goals through strengthened state support.[45]
The president of the Assembly, along with the Bureau, are taking the lead in organizing this stakeholder conference. Human Rights Watch believes that this conference is an opportunity for states parties to reflect on their own obligations and how they can best provide consistent and sustainable support to the court to achieve a 10-year strategic vision. The IER focused on strengthening the court’s performance and its effective delivery of justice. And while state support has been an element of the IER, as well as the broader review process and ongoing facilitations within the ASP, the stakeholder conference could push discussions about state party responsibilities forward with a view toward concrete outcomes in key areas and refocusing the Assembly’s agenda for the future by drawing attention to specific needs.
Specifically, it would be an opportune time for stakeholders to discuss how to make an adequate investment in international justice, both in providing sustainable and consistent funding as part of the court’s regular budget as well as support for other elements of the international justice system. Discussion could also focus on essential elements needed to strengthen the Rome Statute system, including on what meaningful cooperation means in practice (for example, developing context-specific arrest strategies and creating a network of cooperation focal points) and proactive political support even when there are no apparent threats or attacks.  
Ultimately, the success of this discussion will heavily depend on the adequate preparations of the court itself, states parties, and stakeholders within civil society and the court’s international partners, including the UN system. Its viability will also depend on the willingness and ability of states parties to constructively participate, while respecting the court’s independence, and bring forward the discussion into the year-round workings of the Assembly.
According to article 43(4), “[t]he judges shall elect the Registrar by an absolute majority by secret ballot, taking into account any recommendation by the Assembly of States Parties.” The next registrar of the court is scheduled to be elected in 2023. In June 2022, the ICC president submitted to the president of the Assembly as shortlist of 12 candidates[46]; two of them have since withdrawn their candidature.[47] In October, the remaining 10 candidates participated in public, Assembly roundtables, during which they were asked questions submitted by both states parties and civil society.[48] This was the first time roundtables were organized in the context of the election of the registrar and is a welcome development that should be repeated in future elections.[49] The candidates also provided responses to a written questionnaire prepared by the Coalition for the ICC.[50]
Another important development was the establishment by the Bureau of a due diligence process for the election of the registrar in June 2022, as part of the broader efforts within the Assembly to develop vetting procedures for high moral character across ICC elections (discussed below).[51] 
At the upcoming Assembly session, states parties are also expected to provide recommendations to the judges, although it is still unclear what elements these will include. Regardless of what the final format of the recommendations will be, states parties should direct the judge’s attention strictly to merit.
The 2020-2021 election of the ICC prosecutor was marred by the absence of a comprehensive approach to vetting for “high moral character”; high moral character is a statutory requirement for the positions of judges, prosecutor and deputy prosecutors, and the registrar of the ICC.[52] Since then, states parties have taken several steps to strengthen the ICC election processes and, in particular, to fill the “vetting gap”: two ad hoc procedures to assess the high moral character of candidates in the election of the deputy prosecutors in 2021 and the election for the registrar in 2022, and a lessons-learned exercise on the election of the third prosecutor, which included consideration of the vetting issue. Each of these steps represents an important building block towards strengthening ICC elections.
Due diligence process for the election of the ICC deputy prosecutor
The due diligence process for the election of the ICC deputy prosecutor was the first one of its kind and consisted of a candidate questionnaire, background checks overseen by the prosecutor, and use of the Independent Oversight Mechanism (IOM) to assess any allegations of misconduct against shortlisted candidates submitted through a confidential channel.[53] Regrettably, information on the confidential channel was only available for 14 days on the Assembly webpage dedicated to the election of deputy prosecutors and was not broadly circulated.[54]
Due diligence process for the election of the registrar
The due diligence process for the election of the registrar was based on a proposal by the IOM and the Assembly presidency, following consultations with states parties and civil society. The process for establishing this procedure represented a significant step forward from the process set up in 2021 for the election of the deputy prosecutor, which was established quickly and without civil society consultation.
The due diligence process for the election of the registrar was led by the IOM and comprised of two parts according to the approved procedure: a review of existing background information concerning the shortlisted candidates, which could include contacts with former employers and employees, and the receipt and review of allegations of misconduct made against them through a confidential channel, which was open for 45 days.[55] According to the written procedure for the due diligence process, the IOM has to submit to the presidencies of the court and of the Assembly a report by no later than November 30 “regarding any concerns it may have identified with respect to the high moral character of any of the shortlisted candidates.”[56]
While the procedure could have been further strengthened, it contained some important elements:
Based on Human Rights Watch’s monitoring there is a clear need to improve efforts to disseminate information about the confidential channel. While steps were taken beyond those observed in the election of the deputy prosecutor, i.e., the publication of a press release outlining the details of the confidential channels, and “tweets” by the Assembly president in different languages, these were limited to the day of the opening of the channel.[57] The Coalition for the ICC helpfully re-posted information about the confidential channel on social media every week. It is unclear what dissemination was carried out by states parties; this should be a shared responsibility among all stakeholders.
Lessons learned exercise for the election of the third prosecutor
At the beginning of 2022, the Bureau mandated the ambassador of Serbia to the Netherlands and the permanent representative of Austria to the United Nations to carry out the lessons learned exercise for the election of the third prosecutor. In the first half of 2022, the two co-facilitators analyzed written material, including the reports produced by the previous Assembly presidency, the Committee established for the Election of the Prosecutor, and the experts who assisted the Committee, and carried-out consultations with states parties, civil society, and “key individuals involved in the process.”[58]
The co-facilitators’ final October report highlights the importance of vetting in ICC elections, and the support for the establishment of a permanent process. It further suggests the inclusion, in future vetting processes, on a permanent basis key elements such as background checks, reputational interviews, and a confidential channel[59]; it is notable that all of these were in different degrees already present in the due diligence process for the election of the registrar.[60] They had also already been highlighted by a number of civil society organizations, including through the Coalition for the ICC’s Elections Team.[61]
The way forward
The intention of the Assembly to establish a permanent vetting process had already been memorialized in the Omnibus resolution adopted at the last Assembly session, which mandated the Bureau to continue consultations for developing a vetting process for all ICC officials, and to report to the Assembly ahead of its twenty-first session in December 2022, with a view to adoption as soon as feasible and no later than its twenty-second session in 2023.[62]
The upcoming Assembly session is an opportunity to take further steps toward the development of such permanent process. Building on the ad hoc procedures established to date, states parties should agree that a permanent process should be comprised of:
The Assembly presidency should take the process forward next year, ensuring consultations with all states parties, civil society, the IOM, and other relevant stakeholders – including experts on vetting.
At the same time, states parties should begin putting in place a dedicated vetting process for the upcoming judicial elections in 2023. Unfortunately, given the timing of those elections, this cannot wait for the finalization of the permanent process at the twenty-second Assembly session, but can be seen as an additional building block and incremental step toward that goal. To ensure consistency and avoid duplication, the Assembly presidency should take the lead on the development of this process, in consultation with all relevant stakeholders including the facilitator on the review of the procedure for the nomination and election of judges, given the parallel work of that facilitation.
Maria Elena Vignoli (Human Rights Watch) and Danya Chaikel (International Federation for Human Rights), “Vetting in ICC Elections, Quo Vadis?,” commentary, Coalition for the International Criminal Court, July 13, 2022, https://www.hrw.org/news/2022/07/13/vetting-icc-elections-quo-vadis
While no longer under punitive United States sanctions,[63] the court and those cooperating with it or working on related justice efforts continue to remain vulnerable to threats and attempted obstruction.[64] For as long as the ICC does its job, it will attract politicized opposition from multiple sources that can only be overcome through the determined and creative backing of states parties and other partners. 
There are important lessons to learn in how states parties rallied around the court to mount a defense against US attacks, including through their joint statements.[65] Notably, the language in the Omnibus resolution reiterating the Assembly’s commitment to preserve the Rome Statute’s integrity, undeterred by threats and measures against the court, has served as an important model for these statements. The IER report recognized these realities in its recommendation that “[t]he ASP and States Parties…develop a strategy for responding to attacks on the Court by non-States Parties” (IER Recommendation 169), although past experience shows that opposition may also come from states parties. This recommendation was positively assessed.
On that basis, in May, the president of the Assembly presented a proposed strategy to implement this recommendation based on thorough and inclusive consultations. The proposal was adopted by the Bureau by silence procedure in July.[66]
The strategy reiterates the language from the Omnibus resolution and clarifies that the presidency of the ASP “bears the main responsibility for coordinating an appropriate response from the Assembly to any threat or attack against the Court, its officials and those cooperating with it, which has the potential to undermine the integrity, effectiveness or impartiality of the Court.” It further lists concrete steps that the Assembly can take to ensure an immediate response to such attacks, including, issuing a statement, convening an urgent meeting of the Bureau, and proposing additional measures to be adopted by the Bureau, which could include individual or joint statements and other forms of communication and outreach, and other private or public diplomacy initiatives.[67]
To go further and as demonstrated by efforts in the context of US threats and sanctions, an effective response to threats or obstruction needs to include the coordinated and mutually supportive role of states parties, acting individually or collectively, privately, or publicly. A response by the presidency should be the floor and not the ceiling in responding to efforts to derail justice, and it should be carried out in tandem with parallel actions by states parties. The more complementary voices are heard, the better.
The strategy should be publicized more broadly. The Assembly president should also consult states parties on developing an annex with a non-exhaustive “menu of options” based on past successful practices that states parties and the presidency could draw on when trying to quickly respond to a threat or attack.
Importantly, this strategy should be put to use when “threats or attacks” (or other efforts to thwart or obstruct efforts at justice) are identified, in particular, an attack on “those who cooperate with” the court. Given that threats to human rights defenders for their advocacy on behalf of justice may be aimed at derailing the court’s mandate, the Assembly and states parties should integrate responses to attacks on civil society into their broader strategies for confronting obstruction of the ICC’s work. The Assembly should serve as a model for supporting civil society space.
Last year, the government of Israel designated six prominent Palestinian civil society organizations as “terrorist organizations” under Israeli law and as “unlawful associations” under military law, which is applicable in the occupied West Bank. These groups continue to face intimidation, most recently when Israeli authorities raided their offices and issued closure orders against them in a bid to shut down their human rights work.[68] Several of those organizations have been submitting information to the OTP about alleged crimes committed by Israeli forces and have campaigned for an ICC investigation in Palestine. The designations have been internationally condemned by the European Union,[69] several states parties,[70] and UN Experts[71] including the UN Special Rapporteur on counter terrorism,[72] and the UN High Commissioner on Human Rights,[73] among others.[74] This is exactly the type of situation the strategy was intended to address. The ASP (through the president) should join in rejecting and condemning Israel’s designations and attacks, and states parties should consider making individual or joint statements, including in the General Debate at the upcoming Assembly session.
Given that threats to human rights defenders for their advocacy on behalf of justice may be aimed at derailing the court’s mandate, the Assembly and states parties should integrate responses to attacks on civil society into their broader strategies for confronting obstruction of the ICC’s work.
[1] The Assembly of States Parties (ASP) is the management oversight and legislative body of the International Criminal Court (ICC) and it is composed of representatives of the countries that have ratified the Rome Statute, the court’s founding treaty. See ASP website, https://asp.icc-cpi.int/ (accessed November 18, 2022).
[2] See, e.g., “Ukraine: Deadly Attacks Kill, Injure Civilians, Destroy Homes,” Human Rights Watch news release, March 18, 2022, https://www.hrw.org/news/2022/03/18/ukraine-deadly-attacks-kill-injure-civilians-destroy-homes; “Ukraine: Apparent War Crimes in Russia-Controlled Areas,” Human Rights Watch news release, April 3, 2022, https://www.hrw.org/news/2022/04/03/ukraine-apparent-war-crimes-russia-controlled-areas; “Ukraine: Russian Forces’ Trail of Death in Bucha,” Human Rights Watch news release, April 21, 2022, https://www.hrw.org/news/2022/04/21/ukraine-russian-forces-trail-death-bucha; “Ukraine: Executions, Torture During Russian Occupation,” Human Rights Watch news release, May 18, 2022, https://www.hrw.org/news/2022/05/18/ukraine-executions-torture-during-russian-occupation; “Ukraine: Russian Strikes Killed Scores of Civilians in Chernihiv,” Human Rights Watch news release, June 10, 2022, https://www.hrw.org/news/2022/06/10/ukraine-russian-strikes-killed-scores-civilians-chernihiv.
[3] “Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation,” ICC news release, March 2, 2022, https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-receipt-referrals-39-states (accessed November 18, 2022).
[4] Human Rights Watch, “#JusticeMatters Checklist 2022,” July 2022, https://www.hrw.org/sites/default/files/media_2022/07/Justice%20Matters%20Checklist.pdf.
[5] “Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan QC, following the application for an order under article 18(2) seeking authorisation to resume investigations in the Situation in the Philippines,” ICC news release, June 24, 2022, https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-khan-qc-following-application-order (accessed November 18, 2022) “Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan KC, following the application for an order under article 18(2) seeking authorisation to resume investigations in the Situation in Venezuela I,” ICC news release, November 1, 2022, https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-khan-kc-following-application-order (accessed November 18, 2022) “ICC judges authorise Prosecution to resume investigation in Afghanistan,” ICC news release, October 31, 2022, https://www.icc-cpi.int/news/icc-judges-authorise-prosecution-resume-investigation-afghanistan (accessed November 18, 2022); “ICC Prosecutor, Mr Karim A. A. Khan QC, concludes the preliminary examination of the Situation in Colombia with a Cooperation Agreement with the Government charting the next stage in support of domestic efforts to advance transitional justice,” ICC news release, October 28, 2021, https://www.icc-cpi.int/news/icc-prosecutor-mr-karim-khan-qc-concludes-preliminary-examination-situation-colombia (accessed November 18, 2022); “Statement of ICC Prosecutor Karim A.A. Khan KC on conclusion of technical visit of the Office of the Prosecutor to Colombia,” ICC news release, October 25, 2022, https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-conclusion-technical-visit-office-prosecutor (accessed November 18, 2022); “Statement by ICC Prosecutor Karim A.A. Khan KC regarding the opening of the trial related to events of 28 September 2009 in Guinea, signature of Agreement with Transitional Government on complementarity and closure of the Preliminary Examination,” ICC news release, September 29, 2022, https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-regarding-opening-trial-related-events-28-september (accessed November 18, 2022).
[6] ASP, “Proposed Programme Budget for 2023 of the International Criminal Court,” ICC-ASP/21/10, https://asp.icc-cpi.int/sites/asp/files/2022-08/ICC-ASP-21-10-ENG.pdf (accessed November 18, 2022), paras. 36, 42, and 45; see also Human Rights Watch, “Submission to the Independent Expert Review of the International Criminal Court,” April 15, 2020, https://www.hrw.org/sites/default/files/supporting_resources/hrw_submission_to_icc_ier.pdf.
[7] See “Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation,” ICC news release, March 2, 2022, https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-receipt-referrals-39-states (accessed November 18, 2022).
[8] “Statement of ICC Prosecutor, Karim A.A. Khan QC: Contributions and support from States Parties will accelerate action across our investigations,” March 28, 2022, https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-contributions-and-support-states-parties-will (accessed November 18, 2022).
[9] The Trust Fund was established under article 116 of the Rome Statute and Regulations 7.2 to 7.4 of the ICC’s Financial Regulations and Rules. See “Rome Statute of the International Criminal Court,” https://www.icc-cpi.int/sites/default/files/Publications/Rome-Statute.pdf (accessed November 18, 2022) and “Financial Regulations and Rules,” https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/D4B6E16A-BD66-46AF-BB43-8D4C3F069786/281202/FRRENG0705.pdf (accessed November 18, 2022).
[10] ASP, “Report of the Committee on Budget and Finance on the work of its thirty-nineth session,” ICC-ASP/21/15 Advance Version, October 15, 2022, unpublished document on file with Human Rights Watch, para. 237.
[11] Ibid., para. 241.
[12] Ibid., para. 252.
[13] Human Rights Watch’s open-source monitoring suggests that the following states have made contributions: Australia, Belgium, Canada, Denmark, France, Germany, Ireland, Latvia, Lithuania, Luxembourg, The Netherlands, Romania, Sweden, Switzerland, and United Kingdom.
[14] ICC, “Situation in Ukraine,” ICC-01/22, https://www.icc-cpi.int/ukraine (accessed November 18, 2022).
[15] See, e.g., “Statement of the Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the situation in Nigeria,” ICC news release, December 11, 2020, https://www.icc-cpi.int/news/statement-prosecutor-fatou-bensouda-conclusion-preliminary-examination-situation-nigeria (accessed November 18, 2022); “Statement of the Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination in the situation in Ukraine,” ICC news release, December 11, 2020, https://www.icc-cpi.int/news/statement-prosecutor-fatou-bensouda-conclusion-preliminary-examination-situation-ukraine (accessed November 18, 2022).
[16] Open letter from the Coalition for the International Criminal Court (CICC) to the ICC and the ASP, March 30, 2022, https://coalitionfortheicc.org/news/20220330/OpenLetter_ICCresources (accessed November 18, 2022).
[17] See, e.g., Australian Government, Department of Foreign Affairs and Trade, “Invasion of Ukraine by Russia,” see in particular the section on Australia’s response to Russia’s invasion, where it is states that Australia “Committed AUD 1 million and three staff to support the International Criminal Court investigation into reported Russian war crimes,” Invasion of Ukraine by Russia | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au) (accessed November 18, 2022); Government of Canada, “Canada provides funding to International Criminal Court to strengthen accountability for conflict-related sexual violence,” May 26, 2022, Canada provides funding to International Criminal Court to strengthen accountability for conflict-related sexual violence  – Canada.ca (accessed November 18, 2022); French Ministry of Justice, Enquête de la CPI sur les crimes commis en Ukraine,” March 23, 2022, Justice / Presse / Enquête de la CPI sur les crimes commis en Ukraine (accessed November 18, 2022); Germany Federal Foreign Affairs Office, “EU Foreign Affairs Council in Luxembourg: The Russian war of aggression in Ukraine and its global impact,” April 11, 2022, EU Foreign Affairs Council in Luxembourg: The Russian war of aggression in Ukraine and its global impact – Federal Foreign Office (auswaertiges-amt.de) (accessed November 18, 2022); Irish Times, “Simon Coveney cites ‘war crimes’ in UN speech following Ukraine visit,” April 19, 2022, The Irish Times, (accessed November 18, 2022); Government of the United Kingdom, “International coalition to support ICC Russian war crimes investigation,” March 24, 2022, https://www.gov.uk/government/news/international-coalition-to-support-icc-russian-war-crimes-investigation (accessed November 18, 2022).
[18] ASP, “Proposed Programme Budget for 2023 of the International Criminal Court,” https://asp.icc-cpi.int/sites/asp/files/2022-08/ICC-ASP-21-10-ENG.pdf (accessed November 18, 2022), para. 6; ASP, “Addendum to the Proposed Programme Budget of the International Criminal Court for 2023,” ICC-ASP/21/10/Add.1/AV, September 9, 2022, https://asp.icc-cpi.int/sites/asp/files/2022-09/ICC-ASP-21-10-Add1-ENG.pdf (accessed November 18, 2022); ASP, “Report of the Committee on Budget and Finance on the work of its thirty-nineth session,” ICC-ASP/21/15 Advance Version, October 15, 2022, unpublished document on file with Human Rights Watch, Annex V “Budgetary implications of the Committee’s recommendations (in thousands of euros).”
[19] ASP, “Report of the Committee on Budget and Finance on the work of its thirty-nineth session,” ICC-ASP/21/15 Advance Version, October 15, 2022, unpublished document on file with Human Rights Watch, Annex V “Budgetary implications of the Committee’s recommendations (in thousands of euros).”
[20] Office of the Prosecutor of the ICC, “Without Fear or Favour”: Reflections on my term as Prosecutor of the International Criminal Court,” Farewell end of term statement, June 15, 2021, https://www.icc-cpi.int/sites/default/files/itemsDocuments/20210615-prosecutor-fatou-bensouda-end-of-term-farewell-statement.pdf (accessed November 18, 2022).
[21] Government of the United Kingdom, “Assembly of States Parties to the Tome Statute of the International Criminal Court Seventeenth Session, United Kingdom of Great Britain and Northern Ireland General Debate Statement,” https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP17/GD%20UK%2005-12-2018.pdf (accessed November 18, 2022); “Statement by Japan after adoption,” annex to ASP, Official Records, Eighteenth Session, The Hague, December 2-17, 2019, ICC-ASP/18/20, vol. I, p. 94, https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP18/ICC-ASP-18-20-vol-I-ENG-24jul20-1700.pdf (accessed November 17, 2022). 
[22] ASP, “Proposed Programme Budget for 2023 of the International Criminal Court,” https://asp.icc-cpi.int/sites/asp/files/2022-08/ICC-ASP-21-10-ENG.pdf (accessed November 18, 2022), paras. 16, 191, and Annex XII, “Budget allocation per active investigation in Major Programme II (in thousands of euros).”
[23] Ibid., paras. 168, 429, 442-449, 724.
[24] Ibid., paras. 236, 518, 528 and 529. However, it should be noted that the Committee on Budget and Finance recommended against approving the additional position in the prosecutor’s Public Information Unit, and the conversion of the Gender Equality Focal Point position to an established post, Ibid., paras. 35 and 8.
[25] “Statement of the Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the situation in Nigeria,” ICC news release, December 11, 2020, https://www.icc-cpi.int/news/statement-prosecutor-fatou-bensouda-conclusion-preliminary-examination-situation-nigeria (accessed November 18, 2022).
[26] ASP, “Proposed Programme Budget for 2023 of the International Criminal Court,” https://asp.icc-cpi.int/sites/asp/files/2022-08/ICC-ASP-21-10-ENG.pdf (accessed November 18, 2022), paras. 26 and 172.
[27] “Statement of the Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination in the situation in Ukraine,” ICC news release, December 11, 2020, https://www.icc-cpi.int/news/statement-prosecutor-fatou-bensouda-conclusion-preliminary-examination-situation-ukraine (accessed November 18, 2022).
[28] “Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan QC, following the application for an expedited order under article 18(2) seeking authorization to resume investigations in the Situation in Afghanistan,” ICC news release, September 27, 2021, https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-khan-qc-following-application (accessed November 18, 2022); ASP, “Proposed Programme Budget for 2023 of the International Criminal Court,” https://asp.icc-cpi.int/sites/asp/files/2022-08/ICC-ASP-21-10-ENG.pdf (accessed November 18, 2022), para. 34.
[29] Ibid., paras. 45, 56-57, and 497-500.
[30] Alison Smith, “Opening of Ukraine investigation should be a wake-up call to look again at ICC’s budget,” Coalition for the International Criminal Court, March 7, 2022, https://www.coalitionfortheicc.org/news/20220307/opening-ukraine-investigation-icc-budget (accessed November 18, 2022); Amnesty International, “Voluntary Contributions – Solution to the ICC’s Funding Crisis or Threat to its Independence and Effectiveness?,” October 12, 2022,https://hrij.amnesty.nl/voluntary-contributions-solution-to-the-iccs-funding-crisis-or-threat-to-its-independence-and-effectiveness/ (accessed November 18, 2022).
[31] French Ministry of Justice, “Enquête de la CPI sur les crimes commis en Ukraine,” March 23, 2022, Justice / Presse / Enquête de la CPI sur les crimes commis en Ukraine (accessed November 18, 2022); Germany Federal Foreign Affairs Office, “EU Foreign Affairs Council in Luxembourg: The Russian war of aggression in Ukraine and its global impact,” April 11, 2022, EU Foreign Affairs Council in Luxembourg: The Russian war of aggression in Ukraine and its global impact – Federal Foreign Office (auswaertiges-amt.de) (accessed November 18, 2022); Government of the United Kingdom, “International coalition to support ICC Russian war crimes investigation,” March 24, 2022, https://www.gov.uk/government/news/international-coalition-to-support-icc-russian-war-crimes-investigation (accessed November 18, 2022).
[32] In the ongoing review of the court’s legal aid policy for defendants and victim participants, the Assembly has required that any reform proposals presented by the court are capable of being funded “within existing resources.” See ASP, “Strengthening the International Criminal Court and the Assembly of States Parties,” ICC-ASP/20/Res.5, December 9, 2021, https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP20/ICC-ASP-20-Res5-AV-ENG.pdf (accessed November 17, 2022), para. 90.
[33] “Financial Regulations and Rules,” https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/D4B6E16A-BD66-46AF-BB43-8D4C3F069786/281202/FRRENG0705.pdf (accessed November 18, 2022), Regulation 6.6.
ASP, “Report of the Committee on Budget and Finance on the work of its thirty-nineth session,” ICC-ASP/21/15 Advance Version, October 15, 2022, unpublished document on file with Human Rights Watch, para. 217.
[35] Independent Expert Review of the International Criminal Court and the Rome Statute System, “Final Report,” Sept. 30, 2020, https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP19/IER-Final-Report-ENG.pdf (accessed November 18, 2020).
[36] “Financial Regulations and Rules,” https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/D4B6E16A-BD66-46AF-BB43-8D4C3F069786/281202/FRRENG0705.pdf (accessed November 18, 2022), Regulation 6.2; ASP, “Report of the Committee on Budget and Finance on the work of its thirty-nineth session,” ICC-ASP/21/15 Advance Version, October 15, 2022, unpublished document on file with Human Rights Watch, para. 217.
[37] See, e.g., Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted December 9, 1988, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988), https://www.ohchr.org/Documents/ProfessionalInterest/bodyprinciples.pdf (accessed November 18, 2022), principle 19 (“A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.”). Regulation of the Court 100 states that “[a] detained person shall be entitled to receive visits.” ICC, “Regulations of the Court,” May 26, 2004, https://www.icc-cpi.int/Publications/Regulations-of-the-Court.pdf (accessed November 18, 2022), Reg. 100. Regulation of the Registry 179 provides that the “Registrar shall give specific attention to visits by family of the detained persons with a view to maintaining such links.” ICC, “Regulations of the Registry,” March 6, 2006, https://www.icc-cpi.int/resource-library/Documents/RegulationsRegistryEng.pdf (accessed November 18, 2022), reg. 179.
[38] See Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, “Decision on Mr. Mathieu Ngudjolo’s Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar’s Decision of 18 November 2008,” ICC, Case No. ICC-01/04-01/07, March 10, 2009, https://www.icc-cpi.int/CourtRecords/CR2009_02787.PDF (accessed November 18, 2022).
[39] See ASP, “Family visits for indigent detainees,” Resolution ICC-ASP/8/Res.4, November 26, 2009, https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ICC-ASP-8-Res.4-ENG.pdf (accessed November 18, 2022), preambular para. 2.
[40] ASP, “Review of the International Criminal Court and the Rome Statute System,” Resolution ICC-ASP/18/Res.7, December 6, 2019, ICC-ASP-18-Res7-ENG (icc-cpi.int), annex I, “Terms of Reference for the Independent Expert Review of the International Criminal Court,” para. 1.
[41] Independent Expert Review of the International Criminal Court and the Rome Statute System, “Final Report,” Sept. 30, 2020, https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP19/IER-Final-Report-ENG.pdf.
[42] ASP, “Review of the International Criminal Court and the Rome Statute system,” Resolution ICC-ASP/20/Res.3, Sept. 9, 2021, https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP20/ICC-ASP-20-Res3-AV-ENG.pdf (accessed November 18, 2022); Bureau of the ASP, “Decision of the Bureau: Comprehensive action plan for the assessment of the recommendations of the Group of Independent Experts, including requirements for possible further action, as appropriate,” July 28, 2021, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/ICC-ASP20-BD-CPA-ENG.pdf (accessed November 18, 2022).
[43] Review Mechanism, “Report of the Review Mechanism on the overall progress of its work,” June 30, 2022, https://asp.icc-cpi.int/sites/asp/files/2022-11/2022-RM-report-progress.pdf (accessed November 18, 2022).
[44] In June, the Review Mechanism held a roundtable on the implementation of recommendations related to working culture, in which the court described actions it had taken, including adoption of new administrative instructions, the creation of an Ombudsperson, the definition of set of core values, staff feedback in response to a court-wide survey, and a strategy on gender equality and workplace culture led by the ICC Focal Point on Gender, as well as other actions taken by individual organs. In November, the Mechanism held a second roundtable to discuss progress made by the court in the implementation of recommendations on the ccourt’s working culture, a strategy to deal with and zero tolerance of bullying, harassment, and sexual harassment, as well as gender equality and inclusiveness regardless of gender or sexual orientation, and geographical representation in the recruitment of staff.
[45] See Bureau of the ASP, “Agenda and decisions,” Oct. 19, 2022, https://asp.icc-cpi.int/sites/asp/files/2022-11/2022-Bureau8-Agenda-Decisions.pdf (accessed November 18, 2022).
[46] ASP, “Election of the Registrar of the International Criminal Court,” ICC-ASP/21/2, July 8, 2022, Annex I, “Letter dated 17 June 2022 from the President of the International Criminal Court addressed to the President of the Assembly of States Parties to the Rome Statute of the International Criminal Court.” https://asp.icc-cpi.int/sites/asp/files/2022-07/ICC-ASP-21-2-ENG.pdf (accessed November 18, 2022).
[47] ASP, “Election of the Registrar of the International Criminal Court, Addendum, Withdrawal of candidatures,” ICC-ASP/21/2/Add.1, October 11, 2022, https://asp.icc-cpi.int/sites/asp/files/2022-10/ICC-ASP-21-2-Add1-ENG-Registrar-Elections-Withdrawal-11oct221000.pdf (accessed November 18, 2022).
[48] See ASP, “Roundtable with shortlisted candidates for Registrar held on 11 and 12 October 2022: recording,” October 11 and 12, 2022, https://asp.icc-cpi.int/elections/Registrar/ER2022 (accessed November 18, 2022) and ASP, “Review of the International Criminal Court and the Rome Statute system: Outcome of the work of the Study Group on Governance on recommendations of the Group of Independent Experts,” ICC-ASP/20/Res.4, December 8, 2021, https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP20/ICC-ASP-20-Res4-AV-ENG.pdf (accessed November 18, 2022), Section II “Election of the Registrar (R76-R78).”
[49] It should be noted that, while positive, the roundtables and due diligence process emerged from discussions in the lead-up to the last Assembly session around the implementation of IER Recommendation 76, which raised some concerns in terms of a strengthened role for states parties in the election of the court’s registrar. If implemented, the IER recommendation would render the Assembly responsible for voting to confirm a shortlist of registrar candidates developed with the assistance of an expert committee. The registrar would then be elected by the judges from this shortlist. Under the Rome Statute, there is presently no role for the Assembly in shortlisting registrar candidates, which is instead done by the court’s presidency. The Assembly does make recommendations on the list, although to date these recommendations have concerned general criteria. The registrar reports to the court’s president, not the Assembly. In December 2021, given the limited timeframe they had before the beginning of the process for the election of the next registrar in 2023, states parties decided to put on hold the assessment and implementation of IER Recommendation 76 and to strengthen their participation in the upcoming election of the registrar in 2023 within the existing legal framework. While a more thorough election – including through roundtables and a due diligence process—is a welcome outcome, in the coming year, states parties should carefully consider whether changes to the ASP’s relationship with the registrar could imperil the court’s judicial and prosecutorial independence. See Independent Expert Review of the International Criminal Court and the Rome Statute System, “Final Report,” Sept. 30, 2020, https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP19/IER-Final-Report-ENG.pdf (accessed November 18, 2022); ASP, “Review of the International Criminal Court and the Rome Statute system: Outcome of the work of the Study Group on Governance on recommendations of the Group of Independent Experts,” ICC-ASP/20/Res.4, December 8, 2021, https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP20/ICC-ASP-20-Res4-AV-ENG.pdf (accessed November 18, 2022), Section II “Election of the Registrar (R76-R78);” Secretariat of the ASP, “Note for the file: Election of the Registrar of the ICC,” May 20, 2021, unpublished document on file with Human Rights Watch, annex II; “Rome Statute of the International Criminal Court,” https://www.icc-cpi.int/sites/default/files/Publications/Rome-Statute.pdf (accessed November 18, 2022), article 43(2).
[50] CICC, “Questionnaires to ICC Registrar candidates – 2023 Election,” https://www.coalitionfortheicc.org/icc-registrar-election (accessed November 18, 2022).
[51] ASP, “Review of the International Criminal Court and the Rome Statute system: Outcome of the work of the Study Group on Governance on recommendations of the Group of Independent Experts,” ICC-ASP/20/Res.4, December 8, 2021, https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP20/ICC-ASP-20-Res4-AV-ENG.pdf (accessed November 18, 2022), para. 4; Bureau of the ASP, “Agenda and decisions,” June 8, 2022, https://asp.icc-cpi.int/sites/asp/files/2022-07/2022-Bureau5-agenda-decisions.pdf (accessed November 18, 2022), Annex, “Proposal by the presidency on due diligence process for candidates for registrar agreed by the Bureau of the Assembly on 8 June 2022.”
[52] “Rome Statute of the International Criminal Court,” https://www.icc-cpi.int/sites/default/files/Publications/Rome-Statute.pdf (accessed November 18, 2022), articles 36(3)(a), 43(3), and 43(3).
[53] “Agreement by the Presidency of the Assembly and the Prosecutor on Due Diligence Process for Candidates for Deputy Prosecutor,” https://asp.icc-cpi.int/iccdocs/asp_docs/Elections/DPROS2021/DP-Due-Diligence.pdf (accessed November 18, 2022) (adopted by the Bureau of the ASP on July 6, 2021).
[54] ASP, https://asp.icc-cpi.int/sites/default/files/iccdocs/asp_docs/Elections/DPROS2021/ICC-ASP20-DPROS-ConfChannel-ENG.pdf (accessed November 18, 2022).
[55] Bureau of the ASP, “Agenda and decisions,” June 8, 2022, https://asp.icc-cpi.int/sites/asp/files/2022-07/2022-Bureau5-agenda-decisions.pdf (accessed November 18, 2022), Annex, “Proposal by the presidency on due diligence process for candidates for registrar agreed by the Bureau of the Assembly on 8 June 2022,” paras. 5-8.
[56] Ibid., paras. 16-20.
[57] “ICC Registrar Election: Assembly of States Parties establishes confidential channel regarding due diligence process,” ICC news release, July 20, 2022, https://www.icc-cpi.int/news/icc-registrar-election-assembly-states-parties-establishes-confidential-channel-regarding-due (accessed November 18, 2022); Silvia Fernandez de Gurmendi, Twitter, @PASPFernandez, “Election of #ICC Registrar: Assembly of States Parties publishes information on confidential channel regarding due diligence process for short-listed candidates https://asp.icc-cpi.int/elections/Registrar/ER2022,” July 20, 2022, https://twitter.com/PASPFernandez/status/1549777023756894209?s=20&t=bL8ORPVI0knNLxUuJhjaug (accessed November 18, 2022).
[58] ASP, “Third Election of the Prosecutor of the ICC: Lessons Learnt,” October 13, 2022, unpublished document on file with Human Rights Watch, paras. 1-4.
[59] Ibid., paras. 134-135.
[60] Bureau of the ASP, “Agenda and decisions,” June 8, 2022, https://asp.icc-cpi.int/sites/asp/files/2022-07/2022-Bureau5-agenda-decisions.pdf (accessed November 18, 2022), Annex, “Proposal by the presidency on due diligence process for candidates for registrar agreed by the Bureau of the Assembly on 8 June 2022,” paras. 5-8.
[61] CICC, “Elections Team Paper: Recommendations to the States Parties to the International Criminal Court in relation to the creation of a permanent vetting mechanism for ICC and ASP elections,” November 2021, https://www.coalitionfortheicc.org/sites/default/files/cicc_documents/CICC%20Elections%20Team%20paper%20-%20permanent%20vetting%20mechanism.pdf (accessed November 18, 2020).
[62] ASP, “Strengthening the International Criminal Court and the Assembly of States Parties,” ICC-ASP/20/Res.5, December 9, 2021,  https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP20/ICC-ASP-20-Res5-AV-ENG.pdf (accessed November 18, 2022), para. 81.
[63] “US Rescinds ICC Sanctions,” Human Rights Watch news release, April 2, 2021, https://www.hrw.org/news/2021/04/02/us-rescinds-icc-sanctions.
[64] See, e.g., Reuters, “Netherlands says Russian spy caught seeking war crimes court internship,” June 16, 2022, https://www.reuters.com/world/europe/netherlands-says-russian-spy-caught-seeking-war-crimes-court-internship-2022-06-16 (accessed November 18, 2022); Joint Statement, “Over 150 Organizations Demand International Community Stand Against Raids and Closures of 7 Palestinian Organizations,” Aug. 22, 2022, https://www.hrw.org/news/2022/08/22/joint-statement-over-150-organizations-demand-international-community-stand-against; FIDH, “Guinée : cambriolage au siège d’Avipa,” Press Release, Nov. 9, 2022, https://www.fidh.org/en/issues/human-rights-defenders/guinee-cambriolage-au-siege-d-avipa (accessed November 18, 2022).
[65] See, e.g., Permanent Mission of France to the United Nations in New York, “Statement in support of the International Criminal Court (ICC) following the release of the US Executive Order of 11 June 2020,” December 12, 2020, https://onu.delegfrance.org/We-remain-committed-to-an-international-rules-based-order (accessed November 18, 2021).
[66] Bureau of the Assembly of States Parties, “Implementation of IER recommendation 169” (adopted by the Bureau on 29 July 2022), https://asp.icc-cpi.int/sites/asp/files/2022-08/Bureau-Proposal-Rec-169-ENG.pdf (accessed November 18, 2022).
[67] Ibid.
[68] See Joint Statement: States Should Act to Protect Human Rights in Palestine, and Dismantle Israel’s Apartheid, Sept. 28, 2022, https://www.hrw.org/news/2022/09/28/joint-statement-states-should-act-protect-human-rights-palestine-and-dismantle.
[69] Statement by High Representative Josep Borrell on the Israeli raids on six Palestinian civil society organisations, August 22, 2022, https://www.eeas.europa.eu/eeas/israelpalestine-statement-high-representative-josep-borrell-israeli-raids-six-palestinian_en?s=65 (accessed November 18, 2022).
[70] Joint Statement by the Spokespersons of the Foreign Ministries of Belgium, Denmark, France, Germany, Ireland, Italy, the Netherlands, Spain and Sweden on the Israeli designation of six Palestinian civil society organisations as terrorist organisations, July 12, 2022, https://www.government.nl/documents/diplomatic-statements/2022/07/12/joint-statement-on-the-israeli-designation-of-palestinian-civil-society-organisations-as-terrorist-organisations (accessed November 18, 2022).
[71] “UN experts call on governments to resume funding for six Palestinian CSOs designated by Israel as ‘terrorist organisations’,” Office of the United Nations High Commissioner for Human Rights news release, Apr. 25, 2022, https://www.ohchr.org/en/press-releases/2022/04/israelpalestine-un-experts-call-governments-resume-funding-six-palestinian (accessed November 18, 2022).
[72] Al-Haq, Webinar, “Protecting Palestinian human rights defenders and civil society organizations,” March 15, 2022, https://www.facebook.com/alhaqorganization/videos/656603365576423 (accessed November 18, 2022).
[73] United Nations, “Outraged over Israel’s Designation of Six Civil Society Groups as Terrorists, Speakers Tell Palestinian Rights Committee Harassment against Human Rights Defenders Must End,” United Nations press release, December 7, 2021, https://press.un.org/en/2021/gapal1443.doc.htm (Accessed November 18, 2022).
[74] Al-Haq, “Statements of Support: Stand with the Six,” https://www.alhaq.org/news/19129.html (accessed November 18, 2022).
Policies that Contribute to the Killings (A Middle East Watch Report)
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