From 20-28 November 2013, Australia joined 121 other States Parties, members of civil society and other stakeholders in The Hague for the 12th annual Assembly of States Parties (ASP) to the Rome Statute of the International Criminal Court (ICC). As the governing and legislative body of the ICC, the ASP discusses and decides on issues central to the Court's operations. The main topics of debate set for the 12th session were cooperation and the impact of the Rome Statute system on victims; however, at the request of the African Union, a special segment was held on the indictment of sitting heads of State and government and its consequences for peace, stability, and reconciliation. The aim of this special segment was to address the growing rift between the African Union, certain African States and the ICC. As a result, the 12th ASP was dominated by discussions on the Court’s relationship with Africa and on amending the Court’s rules on the presence at trial of indicted senior government officials while in office. Other topics debated at the ASP included the adoption of the Court’s budget, the operationalisation of the ICC’s Independent Oversight Mechanism, accountability in Syria and the election of a new judge. Australia, an annual participant in the ASP and State Party since 1 July 2002, played an important role in many of these discussions.
Addressing the challenges of the 12th ASP
In relation to concerns raised that the ICC unfairly targets African States in its selection of cases, and calls for the deferral of the case against President Kenyatta, Australia stressed its openness for constructive dialogue. The issue arose at the ASP following the failure of a request to the UN Security Council for deferral of the ICC cases against President Kenyatta and his Deputy Ruto. According to article 16 of the Rome Statute, the UN Security Council has the authority to defer ICC investigations or prosecution for a period of 12 months. Australia, whose two-year term as a non-permanent member of the Security Council commenced on 1 January 2013, said it understood the challenges for President Kenyatta and Deputy President Ruto to simultaneously meet their trial obligations while devoting their attention to the pressing security issues in their country and the region. Nevertheless, Australia said it was of the view that a deferral should only be granted in exceptional circumstances, when the proceedings themselves threaten international peace and security and alternative options have been exhausted. In Australia’s view, this threshold was not met and, therefore, Australia joined the majority of the Security Council members and did not support the deferral.
At the ASP, Australia supported the adoption of proposed amendments to the Rules of Procedure and Evidence intended to increase the ICC’s flexibility, efficiency and effectiveness, but unlike New Zealand, Australia did not support calls from African States to amend article 27 of the Rome Statute regarding head of State immunity. Following days of intensive negotiations, the ASP adopted changes to the Court’s rules on the presence at trial of senior government officials while in office – new rules 134 bis, ter and quater of the Rules of Procedure and Evidence. States agreed to allow those mandated to fulfil “extraordinary public duties at the highest national level” to request excusal from presence at trial and to be represented by their legal counsel. The amended rule would only apply to persons summoned to appear and not those subject to an arrest warrant. The option of allowing an accused to appear in the courtroom via videolink was also adopted as part of this rule amendment. It will now be for ICC judges to decide on any such request for absence taking into account a number of factors, including the interests of justice and the nature of the hearing in question.
Non-cooperation was also highlighted by Australia at the ASP as one of the most serious challenges to the effective functioning of the ICC. Australia noted in particular the issues of the non-execution of arrest warrants (against 14 persons) and non-essential contacts with a person(s) against whom there is an outstanding ICC surrender request. Cooperation with the Court (also in relation to the UN and African Union) was discussed extensively during the ASP and culminated in the adoption of a resolution that attempts to address these concerns. In a separate resolution the ASP recalled their earlier decision to establish a representation of the Court at the African Union Headquarters in Addis Ababa and reiterated that such presence would promote dialogue with the Court and promote the understanding of the ICC’s mission within the African Union and among African States. The ASP emphasized the need to pursue efforts aimed at intensifying dialogue with the African Union and to strengthen its relationship with the Court.
Finally, Australia also engaged in discussions at the ASP on victim participation and the Court’s budget for 2014. In the discussion on victim participation at the ICC, Australia noted that it ratified the Rome Statute in order to turn the words “never again” into action, and reaffirmed the value of the victim’s mandate in the Rome Statute system. Nevertheless, Australia questioned the efficiency and effectiveness of the current system, which comprises several different models for victim participation, and stressed the need to deal with the issues of victim participation and reparations in a meaningful way. These concerns were reflected in the resolution on victims adopted by the ASP. Despite some early setbacks in negotiations arising from Canada’s unwillingness to join consensus on a proposed ICC budget, the ASP agreed on the Court’s budget for 2014. Representing an increase of €6.4 million, the Court will have €121.55 million at its disposal in 2014. In 2013, Australia contributed over €3.5 million to the Court’s budget.
Australia as a regional role model on the ICC
During the opening plenary session of the ASP, Australia’s representative reiterated Australia’s unwavering commitment to the ICC and to the aims and objectives of the Court, including, most critically, to end impunity for serious international crimes in order to help deter their commission. Australia has long supported the creation of the Court and plays an important regional role in relation to the ICC. This is particularly crucial as the majority of States in the Asia Pacific region (and across Asia more broadly) remain outside the Rome Statute system. At the Pacific Outreach Roundtable on the ICC in Sydney on 16 February 2012, Australia, Cook Islands, Marshall Islands, Palau, Papua New Guinea, Samoa, Tonga, Tuvalu and New Zealand agreed that it was desirable for all Pacific Island Countries to become States Parties to the Rome Statute and called upon the region to consider acceding to the Statute as amended in 2010 (i.e. including the amendments on war crimes and on the crime of aggression).
Australia was a key participant in drafting the elements of the crime of aggression, and is in the process of ratifying the Kampala amendments on the Crime of Aggression and war crimes. Australia strongly endorsed the statement of ICC President H.E. Judge Sang Hyun Song that the more countries that join the Rome Statute the more effective it becomes and that he did not want to see Asia Pacific falling behind in one of the most rapidly developing areas of international law. At the ASP both Australia and New Zealand offered to assist other States in the Asia Pacific region with the ratification and implementation of the Rome Statute through positive complementarity.
The forthcoming 13th ASP: Challenges in 2014
The ASP appears to have successfully met the challenges to the Court’s legitimacy raised at its 12th session. Without a doubt, States Parties will be closely monitoring the Court’s implementation of the new rules and its decisions over the next 11 months until the 13th ASP to be held in New York. Australia will continue to work alongside the Court, States Parties and other stakeholders towards the resolution of these issues. Australia will also continue to play a crucial role in the region and will help to ensure that the most serious crimes of concern to the international community are investigated and prosecuted. As a non-permanent member of the UN Security Council until January 2015, Australia has a unique chance to promote and assist the work of the Court and help to end impunity around the globe.
Jolien Quispel, Senior Research Associate with the Public International Law & Policy Group, The Hague.