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States must reject proposals that may interfere with or undermine the independence of the International Criminal Court (ICC) and take concrete measures to strengthen its ability to deliver justice to victims of international crimes, said Amnesty International.

The 14th Session of the Assembly of State Parties to the Rome Statute (ASP14) takes place at The Hague from 18-26 November 2015. In advance of the session, the governments of Kenya and South Africa have made requests for inclusion of supplementary items in agenda which, if accepted, will hit at the heart of the ability of the ICC to tackle breaches of international law.

“The Assembly of State Parties must not interfere with the independence of the judiciary nor undermine the ability of the Court and its Prosecutor to pursue justice. To do so would not only betray the hopes for thousands of victims awaiting justice, it would damage the very bedrock of international justice – the independence of the Court,” said Netsanet Belay, Africa Director, Research and Advocacy, Amnesty International.

“The ICC remains the only path to justice for thousands of victims of serious violations of human rights across the world and African countries must help strengthen rather than to weaken the system.”

Background

The agenda items proposed by Kenya and South Africa go beyond the mandate of the Assembly as defined in Article 112 of the Rome Statute and deal with judicial matters currently pending before the court.

Kenya

Kenya has requested the inclusion of a supplementary agenda item entitled “Review the application and implementation of amendments to Rules and Procedure and Evidence introduced at the 12th Assembly”. This relates to concerns regarding the Trial Chamber’s ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony’ issued on 19 August 2015 in the case of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang. Kenya criticized the retroactive application of amendments to Rule 68 adopted at the 12th session and opined that the current implementation of the Rule infringes on the rights of the accused.

While Amnesty International has its own concerns about the application of Rule 68, the interpretation and application of the Rule is currently under judicial consideration by the Appeals Chamber in the Ruto/Sang trial. In addition, the African Union has submitted an amicus curiae to the Appeals Chamber, which speaks to these issues and reflects the concerns raised by Kenya. The Appeals Chamber must decide these matters without any interference by the Assembly,” said Netsanet Belay.

In addition, Kenya has also requested that allegations against the Office of the Prosecutor and concerns raised in a petition signed by Kenyan parliamentarians be taken up in the formal agenda of the session. It requests the President of the Assembly “to immediately appoint an independent mechanism to audit the Prosecutor’s witness identification and recruitment process”. It also calls for the ICC to suspend the cases while awaiting the determination of the audit.

“Amnesty International considers that the proposed audit of the Office of the Prosecutor would be inconsistent with the independence of the Prosecutor and potentially undermine the security of its procedures relating to witnesses. It should therefore be rejected,” said Netsanet Belay.

In relation to the serious allegations of misconduct made against ICC staff, Kenya should urge those making them to submit complaints to the exiting Independent Oversight Mechanism (IOM) of the ICC as opposed to proposing for the establishment of another ad hoc mechanism.

South Africa

Against the background of the recent ANC resolution for withdrawal from the ICC, South Africa has proposed a supplementary agenda item at the ASP entitled “Application and Implementation of Article 97 and Article 98.”  The request sets out South Africa’s concerns regarding the ICC’s proceedings conducted around Omar al-Bashir’s visit to Johannesburg in June 2015 to attend an African Union Summit. It questions the Pre-Trial Chamber’s decision that South Africa had an obligation to arrest him and proposes a draft decision on process for adoption of new rules and procedures relating to consultation with the court on this cooperation issues. Worryingly, South Africa also proposes for the Assembly to provide a legal interpretation of the provisions relating to personal immunities for crimes under international law.  

Amnesty International believes that this requested supplementary agenda item should be rejected as it threatens to undermine the judicial independence of the ICC. Alternative measures exist that South Africa should be encouraged to seek to raise its concerns without threatening such interference in judicial matters currently pending before the Court. Currently, South Africa has the opportunity to present its arguments on this issue to the ICC Pre-Trial Chamber when it submits its views to the Chamber in relation to on-going non-cooperation proceedings.

“The Assembly of States Parties – which has an oversight function that excludes judicial management of the Court – must not be used as a forum for states that disagree with judicial decisions to politically review and influence them,” said Netsanet Belay.

“The judges of the ICC have a clear mandate to interpret the Statute. Although to date, different Pre-Trial Chambers have reached different conclusions on this specific issue, it does not justify political interference by the Assembly.”
 

Amnesty International’s key recommendations for the ASP 14

Amnesty International is calling on states parties to:

·        make strong statements in support of the ICC and highlight key issues during the General Debate;

·        oppose agenda items that threaten the independence of the ICC and the Independent Oversight Mechanism;

·        support the prompt deletion of Article 124 from the Rome Statute;

·        take urgent measures to ensure sufficient funding for family visits of indigent persons in ICC detention;
·        acknowledge the ICC’s current capacity crisis, urge the ICC to develop its optimal capacity model and promote a discussion of the model before and during the next session

Amnesty International has published Five recommendations to the 14th session of the Assembly of States Parties which has been widely communicated to member states ahead of the Assembly.