Rome/ The Hague/ New York - 23 July 2018

Never give up hope, never stop trying to make this a more humane world (...). The time is now, and the place is here” Mr. Benjamin Ferencz (USA)
Chief Prosecutor for the United States Army at the Einsatzgruppen Trial

On 18 July 2018, Parliamentarians for Global Action (PGA), the International Association of Penal Law (AIDP – Italian chapter), and No Peace Without Justice, co-organized a Conference on the 20th Anniversary of the Rome Statute of the International Criminal Court (ICC), which was held in the Sala della Protomoteca of the City Hall of Rome, Italy. The event was an initiative of the Vice-President of the European Parliament Fabio Massimo Castaldo, MEP, and was hosted by the Mayor of Rome Virginia Raggi. The Conference gathered together nearly eighty attendees, including distinguished high-level representatives of the three branches of power of the Italian State, ICC judges, PGA members, legal experts, representatives from non-governmental organizations, members of the press, academics and students.

Historical Background, Aim of the Conference, and Main Points under Discussion

Contrary to the popular belief, the Rome Statute was effectively opened to the signatures by States on 18 July 1998, when the Final Act of the Rome Diplomatic Conference was signed. Indeed, at the end of the Rome Diplomatic Conference on 17 July held at the Food and Agriculture Organization of the United Nations (FAO), the UN-clock was stopped at 11:59 PM in order to allow Delegations to participate in the last plenary session. The Conference of Plenipotentiaries ended up voting on the adoption of the Statute of the ICC in the following two hours, responding to a request of the United States of America’s delegation. The following morning, Delegations convened at a dedicated Ceremony held in the Sala della Protomoteca of the City Hall of Rome at Campidoglio to sign the Final Act of the Conference in the presence of the Secretary-General of the UN, who did not attend the vote.

Twenty years later, in the same monumental room designed by Michelangelo Buonarroti, the Conference reunited high-level experts and professionals who thoroughly reflected on the Statute of the ICC and its underlying system, inspired by a shared desire to “relaunch it”. While emphasizing the vital importance of the ICC and State action against impunity for crimes under international law, the participants analyzed the main issues directly and indirectly hindering the universality and effectiveness of the Rome Statute system, and proposed ways to overcome them. Various challenges were identified within the ICC, at the level of the States, and at the United Nations Security Council (UNSC).

Particularly, the discussions dwelled on:

• The fight against impunity for the commission of international crimes, including the need for universal ratification/accession and domestic implementation of the Rome Statute, as well as reinforcement of the cooperation of States with the ICC

• The activation of the ICC jurisdiction over the crime of aggression on 17 July 2018

• Finding concrete ways to strengthen the ICC, including the revision of:

• The mechanism of nomination and election of the judges

• The composition and structure of the Office of the Prosecutor (OTP) and the Registry

• The procedure of cooperation of States with the ICC

• The functioning of the Assembly of States Parties (ASP) as the “executive” branch of the Rome Statute system

Some Highlighted Moments and Interventions

The solemn session was opened by Fabio Massimo Castaldo, MEP, Vice-President of the European Parliament and PGA member, who offered a meaningful synopsis of the legal and historical events that preceded the creation of the first permanent and independent International Criminal Court. Castaldo announced that on 17 July 2018, his colleagues and members the Five Stars Movement (currently the largest group in the Italian Parliament) had just re-deposited a Legislative Bill to authorize the prompt ratification of the Kampala Amendments.

During the discussion on the fight against impunity for the commission of international crimes, Mr. Enzo Moavero Milanesi, Italian Minister of Foreign Affairs, participated through a video conference, and reaffirmed the Italian government’s commitment to the international obligations stemming from the Rome Statute system.

Judge Rosario Aitala, International Criminal Court (2018-2027), highlighted some of the internal and external challenges faced by the ICC. Firstly, achieving the ratification or accession of the Rome Statute by other States, including the great powers. Secondly, extending the ICC’s jurisdiction ratione materiae over mass atrocities committed in the context of violent extremism not fully encompassed by the definitions of the core four international crimes. Thirdly, reinforcing the level of cooperation of the States with the ICC. Finally, establishing clear, feasible, and consistent practices concerning the victims’ participation before the Court.

Judge Cuno Tarfusser, International Criminal Court (2009-2018), took the floor and identified three types of difficulties in the Rome Statute system. Structural challenges, including the need to nominate and elect high-quality judges vis-a-vis the requirement to maintain a balanced representation in terms of gender, geographical regions, and legal traditions. Normative challenges, including the impossibility to deal with every legal lacunae through jurisprudence, requiring instead a more active legislative role from States Parties. And governance challenges, including the imperative necessity to toughen the pre-requisites and standards for a high-level meritocratic system of staff recruitment. In effect, Judge Tarfusser argued, some ICC judges do not have the required judicial experience, while others have limited knowledge of international law and international criminal law.

The vital role of parliamentarians in the ratification and domestic implementation of the Rome Statute was emphasized by Sen. Julio Cesar Valentín (Dominican Republic), Vice-Chair of the Commission of Justice and Human Rights and longstanding PGA member. The Dominican Senator also shared with the audience that on 11 July 2018, he had tabled an innovative resolution prepared by PGA’s legal team, in which the Dominican Parliament expresses its consent to the ratification by the Executive of all amendments to the Rome Statute. That is, the amendment defining the crime of aggression and the one expanding the protections afforded to victims of aggressive wars and non-international armed conflicts. This resolution offers the Executive an expedited way and a simplified “package” upon which to act, without the burdensome procedure of having to send the texts of the amendments to Parliament.

In connection to the Kampala amendments, Prof. Flavia Lattanzi, former judge ad litem at the UN International Criminal Tribunals for Rwanda and former Yugoslavia, argued that the opposition by certain States, especially France, to the crime of aggression regime can be considered irrational, almost senseless. Reason being, the extremely restrictive definition of the crime of aggression based on the cumulative criteria of scale, gravity, and manifest violation of the UN Charter on the legality of the use of force. Prof. Lattanzi concluded that only three relatively recent "cases" could have fallen under the definition of the crime of aggression in the sense of Art. 8bis, para. 1: the USSR invasion of Afghanistan in 1979, the Iraq invasion of Kuwait in 1990, and the US-UK invasion of Iraq of 2003. All other situations of illegality or contested legality of the use of force could have fallen under the definition of an act of aggression, but not of the crime of aggression in the sense of Art. 8bis, para. 1.

Dr. Alice Riccardi, from the Faculty of Law at Roma Tre University, analyzed the crime of aggression and the principle of complementarity, the crime of aggression as a leadership crime, and the relationship between the crime of aggression and the general principles of law described in Part III of the Rome Statute. Dr. Riccardi stressed the need to treat international criminal law as a unified corpus juris, thus refraining from interpreting the crime of aggression as a “particular” or “exceptional” international crime. Inter alia, she noted how all the other crimes under international law may involve the utilization of the State apparatus for their perpetration.

Julie Ward, MEP (United Kingdom), European Parliament’s Committee on Culture and Education and committed PGA member, celebrated the activation of the crime of aggression as an opportunity allowing the ICC to increase its political outreach and visibility. Ms. Ward also announced that, along with fellow PGA members Ana Gomes and Barbara Lochbihler, she had written a letter to the High Representative of the European Union, Federica Mogherini, calling for the establishment of an EU Special Representative on International Humanitarian Law and International Justice. She was pleased to inform the audience that the European Council had taken their words seriously, as the High Commissioner had been asked to present proposals to strengthen the EU’s capacity in the area of international criminal justice. The European parliamentarian finished by calling for a democratizing reform of the UNSC, in face of a potential reluctance from powerful permanent members to refer situations to the ICC.

Mr. Fabio Maria Galiani, Member of the Executive Committee of the AIDP Italian Group; opened the panel on on the ways to strengthen the ICC and reminded the audience that the Italian domestic legal order still lacks an implementing provision of crimes against humanity.

Judge Daniela Cardamone, Italian magistrate assigned to the European Court of Human Rights, made four specific proposals to improve the ICC system of nomination and election of the judges, based on the reforms undergone in ECHR, bearing in mind the structural and dimensional differences between the ICC and the ECHR.  First, during the interviews, the ICC should include a direct inquiry about whether the candidate has ever been elected or appointed to a political position in the State submitting the nomination. Second, the internal procedure of triple nomination conducted by the States Parties should be public, transparent, merit-based and, when possible, gender-balanced. The list of nominees should present the names in alphabetical order, avoiding any indication of preference. Third, States Parties that wish to make nominations for the highest individual organs of the Court (the Judges and the Prosecutor) shall make a compulsory public announcement of the positions that are available, so to facilitate a public process of nominations by the most competent jurists and practitioners who would fulfil the criteria for the election. Four, the Advisory Committee on Nomination of the Judges of the ICC should issue its opinion before States officially present the nominations. This would create a “filter” instead of a system of disqualification, through which non-qualified individuals simply cannot be nominated. The combined adoption of all these measures by the ASP would substantially depoliticize the election process.

Dr. Niccolò Figà-Talamanca, Secretary-General of No Peace without Justice and former member of the Rome Conference, recalled the expectations of those participating at Conference of Plenipotentiaries in 1998 in contrast with the current situation of the Rome Statute system. In the context of the post-Cold War, Dr. Figà-Talamanca argued, the international arena opened up to the participation of small and medium States, and the ICC embodied an idea of anti-colonialism. The Secretary-General considered the unsatisfactory quality of the ICC judges more a political than a procedural problem, given that States Parties do not seem to believe that the Court would merit a nomination of the most excellent practitioners or jurists. Jointly with the lack of sufficient investigative capacity, and the weaknesses of the institutional culture and leadership, these realities pose severe restrictions to the effectiveness of the ICC.

Min. Plen. Francesca Tardioli, Deputy Director General/Central Director for United Nations and Human Rights, Ministry of Foreign Affairs of Italy, affirmed the role of Italy in support of a rules-based international order as foundation for a bond between peace and justice, in face of the sentiment of return to unilateralism. As a result, Min. Tardioli made a very strong and precise commitment to the imminent ratification of the Kampala Amendments.

The event was closed by Mr. Gianfranco Dell’Alba, President of No Peace Without Justice, acknowledging the attendees for their valuable contribution and calling the international community to renew the trust and commitment to the fight against impunity for the commission of international crimes.