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October 10, 2004

INTERNATIONAL CRIMINAL COURT

A brief report on the third assembly of states parties meeting

Ahmed Ziauddin

The 3rd meeting of the Assembly of States Parties (ASP) of the International Criminal Court (ICC) and Rome Statute (RS) was enormously significant not only for what happened during the meeting but for the fact that this was the first such meeting held away from the United Nations complex in New York, and the first in the ICC's Host Country and at the seat of the Court, The Netherlands.

The Article 112 of RS established an ASP with each State Party of the Statute and authorised those other States which have signed the Statute or the Final Act in Rome to attend as Observers. The Statute assigned the ASP management oversight of the ICC, consider and decide its budget, decide questions relating to non-co-operation and perform other functions consistent to the RS.

As signatory of the RS, Bangladesh was invited to submit credentials for its representatives at the third session. The Assembly also invited twenty-six other Non-State Parties to attend. Observers and Non-State Parties, though are allowed to participate in discussions, cannot vote. In fact, so far, ASP adopted, except elections, all decisions by consensus.

All key ICC officials, the President, the Prosecutor and the Registrar spoke before the Assembly. In addition, Dutch Foreign Minister spoke on behalf of the Host country. The President of the ICC, Judge Philippe Kirsch (Canada), in his presentation outlined progress made by the Court "from an inspiration to a functioning institution" and how it has commenced its judicial functions.

The Prosecutor, Dr. Luis Moreno-Ocampo (Argentine), said that he has opened two investigations, under Article 53 of the RS, and are analysing six situations, under Article 15 of the RS, located in four different continents. He, however, did not reveal details of the situations under analysis or even the locations. He has been investigating since December 2003 situation in Uganda and from March 2004, situation in Democratic Republic of Congo.

He said, in 2005, he expects to analyse eight situations, finish investigation in one case and the one trial to begin, subject to arrest of the accused, in early part of 2005. He plans also to investigate two other cases, one to finish by 2005 and to open two new situations in the middle of 2005. Accordingly, his hands appear already full.

Mr. Bruno Cathala (France), the Register of the ICC talked in detail, amongst others, practical steps taken and challenges ahead for the Court now being built. He introduced draft budget, later approved, amounting to 69.5 million euro out of which 66.5 was allocated to the Court itself while 3 million for funding the Secretariat of the ASP. After some cuts, the Assembly approved 2005 budget for 66 million euro.

Election of the Deputy Prosecutor for the ICC: The Prosecutor under Article 42 of RS forwarded three candidates to the ASP to elect one for the position of Deputy Prosecutor (Prosecution). The Prosecutor received 198 applications, mostly from State Parties (77%). Only 21 applications came from Asia, out of which, three were interviewed. The Assembly overwhelmingly voted in favour of Ms. Fatou Bensouda, former Attorney General and Minister of Law of Gambia. All three candidates appeared before a projection meeting organised by Women's Initiatives for Gender Justice and argued for their election. The Assembly swayed for gender and geographical reasons.

Trust Fund for Victims: The Board of Directors for the Trust Fund for victims that included Queen of Jordan and Bishop Desmond Tutu of South Africa submitted its report for the ASP's approval. It contained the Fund's Regulation, authority to set-up a Secretariat and its initial budget for 1.4 million euro.

Relationship Agreement between the ICC and the UN: The draft Relationship Agreement between the ICC and the UN was submitted. This Agreement is considered critical for the work of ICC, amongst others, in areas of exchanges of information, judicial assistance and co-operation on infrastructural and technical matters. The Agreement recognised responsibilities of UN under its Charter and the Court as an "independent permanent judicial institution". It agreed to respect each other's status and mandate. In addition to administrative co-operation, it dealt with access to UN Headquarters, UN Laissez-passer that ICC officials could use as valid travel document, testimony of UN officials before the Court and UN co-operation to Prosecutor's investigation.

Conditions of Service of Judges: The Presidency of ICC, under Article 49 of RS, submitted specific proposals on conditions of services and compensation, travel and subsistence regulations, pension scheme for the Judges and other elected officials of ICC. It covered various gaps in conditions of service of the Judges adopted in 2002 and included issues like residency, disability pension and child benefit.

Code of Professional Conduct for Counsel: The Presidency also submitted a proposal for a Code of Professional Conduct for Counsel before the ICC. The document was prepared by the Registry of the Court in consultation with the Prosecutor. It covered whole range of issues oath, independence, secrecy and confidentiality, client counsel privileges, fees to disciplinary regime.

Election of Members of the Committee on Budget and Finance: The Committee on Budget and Finance that was established by the Assembly in 2002 also decided in its 2003 meeting to elect, in place of retiring ones, six members of the Committee on Budget and Finance.

Liaison Office in New York: The Registry submitted a report on establishment of a New York Liaison Office to work with the UN, State Parties and Non-State Parties, international and regional organisations, non-governmental organisations, and media organisations. The need for such presence in New York came out of recognition of this city's importance in international relations and diplomatic negotiations and for high level presence of representatives of most of the states of the world. Also it was felt that RS institutions must play and integrate its own distinctive role in international peace and justice by its presence in New York.

Special Working Group on the Crime of Aggression: The RS, under Article 5 (2) contained that the Court shall exercise jurisdiction over the crime of aggression after a provision defining the crime and its conditions are set out according to Articles 121 and 123. During Preparatory Commission meetings, and since, considerable discussions took place between the States. A Special Working Group was set-up, a unique mechanism, where all States who signed the Final act of the Rome Conference and non-signatories and others joined in.

The Assembly had before it a report of an informal inter-sessional held in Princeton, New Jersey in USA, from 21-23 June 2004. The inter-sessional discussed various aspects of the crime including issues like jurisdiction, complimentarity, admissibility, general principles of law, conditions under which the Court could exercise jurisdiction, compatibility with the UN Charter, investigation and prosecution and other matters.

Because of limited time available at this third ASP, the Assembly decided to devote a full day in next ASP to discuss the crime of aggression and the Chair of the Working Group Ambassador Christian Wenaweser of Liechtenstein proposed that further inter-sessional meetings could be held in future to continue consideration.

Bangladesh and the Assembly of States Parties: As an Observer of the Assembly, with right to be present and participate, and despite invitation to do so, Bangladesh chose not to be present, not only in the Assembly but also in the Special Working Group on the crime of Aggression. Bangladesh has not even sent its credentials to the Assembly as appears from the List of Delegations to the Third Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC-ASP/3/INF.1)

Bangladesh also was absent, again, despite invitation, to the Inter-Sessional meeting of the Special Working Group on the Crime of Aggression held in Princeton, New Jersey, USA as appears from the list of participants annexed with the meeting's report submitted to the Assembly (ICC-ASP/3/SWGCA/L.1). While many other Asian and Arab States including India, Nepal others follow closely and contribute in discussions on the crime of aggression, Bangladesh is consistently absent in the development of this critical international norm.

Asian Delegates Meeting: In the traditional Asian Delegates meeting with the NGOs, delegates of Nepal, Japan, Mongolia, Laos, and East Timor attended.

New President of the ASP: The Assembly elected Mr. Bruno Stagno Ugarte, Permanent Representative of Costa Rica to the United Nations as the President of the Assembly's forth to sixth session beginning 2005 when current President H.R.H. Prince Zeid Ra'ad Zeid Al-Hussein (Jordan) ends his term.

The author is Convenor, Asian Network for the International Criminal Court.