Challenges for the Rome Statute system and the fight against impunity

1. Amending the amendments on the crime of aggression and addressing the rights of its victims, including combatants who are not protected under war crimes and crimes against humanity
2. Reforming national nomination procedures for ICC judicial candidates so that the ICC can live up to its expectation of rendering justice to victims: are States ready to turn the Independent Experts’ Review recommendations into a reality?

Thursday 8 December 2022 – 18:15 to 19:45

ANTARCTICA Room, World Forum, The Hague (hybrid format via PGA Zoom platform)

RATIONALE FOR THIS SIDE EVENT TO THE 23^RD ASSEMBLY OF STATES PARTIES

Expectation: The International Criminal Court (ICC) has been created to be a fair, independent international judicial body that applies the highest standards of justice, based on the principle of equality of all before the law.

I) However, in the face of aggressive wars such as the one that is devasting Ukraine, the ICC may not exercise its jurisdiction on the crime of aggression unless there would be a UN Security referral (which is subjected to the veto-power of 5 permanent members) or there would be ratification of the Kampala amendments by the State that carried out the aggressive war (e.g., the Russian Federation). This is inconsistent with the jurisdiction of the ICC on genocide, crimes against humanity, and war crimes, which works automatically based on either ratification or acceptance by territorial State or by the State of nationality of the alleged perpetrator.

This situation can be remedied by amending the Rome Statute’s provisions of Article 15bis (paragraphs 4 and 5) that impede an alignment of the ICC jurisdiction on the crime of aggression to the one that exists for the other core crimes under International Law. In doing, it would be helpful for States, NGOs, and other stakeholders to recognize that the crime of aggression is victimizing an entire category of individuals who are not protected under the other core crimes, namely, combatants.

II) To uphold the rights of victims, including of the crime of aggression, to have access to remedies and justice, it is of utmost importance that the ICC judges are of the caliber to render authoritative and high-quality jurisprudence and guarantee fair trials. Therefore, the quality of the judges has fundamental importance to the performance, efficiency, and effectiveness of the ICC, which is at the heart of the long-term success of the ICC and the Rome Statute system as a whole. In its report, the Independent Experts Review (IER) panel concluded that “the ability and experience of some of the Judges who have been elected have not marked them out as Judges or jurists of the highest caliber sought by the Court”.

Despite the legal framework enshrined in the Rome Statute on the qualifications of the judicial candidates, political considerations arising during the domestic national nominations phase, and spilling into the election phase, have hindered the transparency of the process. To remedy this situation, States should equip themselves with domestic procedures guaranteeing that only the best candidates are nominated by States for the ICC judicial elections through public, transparent, and merit-based processes.

ICC judicial elections will take place next year (2023), with the nomination period already starting on 2 January 2023. As such, this side event will offer an important opportunity to facilitate the discussion among States and other stakeholders on identifying a way forward to ensure that the ACN (or other appropriate body) would be able to produce guidelines or criteria on merit-based and transparent national nomination procedures before the end of 2022.

The PGA Delegation to the 2022 ASP includes two multi-party parliamentary delegations from Namibia and Ukraine.

Event co-organized with:

Related Events

PGA’s engagement at the 21st session of the Assembly of States Parties of the ICC

PGA organized two critical side events on 8 December, which provided concrete reflections on serious issues faced by the Rome Statute system. Both events gathered high-level participation from the ICC and States representatives, as well as other civil society organizations.