05 Dec High Stakes at the 23rd Session of the Assembly of States Parties to the Rome Statute
[Ezequiel Jimenez is an independent researcher with a PhD in International Law (Middlesex University, United Kingdom) focusing on the history and practice of the Assembly of States Parties to the Rome Statute. All comments and feedback welcome (email, X: @ezejim7 and Bluesky: @ezejim.bsky.social)]
The Hague’s World Forum will be the site of contestation among the 124 States Parties to the Rome Statute as they gather for their 23rd session this week. Frequently understudied by academia and practitioners, the Assembly of States Parties is a vital actor to understand the institutional set-up of the International Criminal Court and to precisely dispel questions about its efficacy since its establishment in 2002. Building on the research agenda started by Blokker and taking into account previous precedent, the Assembly is the injugovin (international judicial governance institution) of the International Criminal Court. In a nutshell, Article 112 created an assembly of member states as the primal governance forum of the Court. As table 1 shows below, States Parties make decisions by consensus across important statutory responsibilities such as elections, financial oversight, disciplinary measures and removal of elected officials, oversight of auxiliary judicial instruments, enforcement of cooperation and the review and amendments of the Rome Statute. In sum, the Assembly is the ‘management oversight and legislative body of the International Criminal Court’.
To aid the work of the Assembly, an elected Bureau composed of one President, two Vice-Presidents and 18 members at large, is mandated with a three year term to ‘assist the Assembly in the discharge of its responsibilities’. The Bureau provides ongoing and uninterrupted governance oversight to the Court. It does so assisted by a member-led Working Group in New York and another one in The Hague. These flexible groupings enable the Bureau to carry out its responsibilities in between regular annual sessions. In addition, the Rome Statute afforded the Assembly the power to create subsidiary bodies in its quest to govern the Court. These subsidiary bodies, such as the Committee on Budget and Finance or the Independent Oversight Mechanism, play a significant role in motivating policy and practical changes in the Court. The Assembly is supported by a permanent Secretariat fulfilling key enabling functions. In essence, the Assembly is the statutory vehicle the drafters in Rome, and in particular States Parties, established to thoroughly govern the Court as an independent international organization. As such, the impact of decisions taken at each annual meeting of the Assembly can gravely influence how the Court performs and under which institutional conditions it can deliver on its mandate. In sum, to adequately appraise the Court, one must also study the actions taken by the Assembly of States Parties. In this context, the 23rd session of the Assembly of States Parties taking place between December 2 and 7 will be consequential. This post aims to guide interested readers on salient points in the Assembly’s agenda and why they matter for the viability of the International Criminal Court moving forwards.
Governing in External and Internal Turmoil
Soon to welcome Ukraine as the 125th member, the annual meeting of the Assembly of States Parties takes place amidst a charged external political environment and several challenges in the internal institutional front. The election of Donald Trump in the United States looms large in the psyche of States Parties as they discuss how to chart a savvy political path to protect the integrity of the International Criminal Court in the near future. Fresh memories remain from Trump’s sanctions imposed on then Prosecutor Bensouda and other Court senior officials in 2020 for investigative progress in the Afghan situation. With the return of Trump to the White House, it is not hard to predict his administration will pursue a vicious attack on the International Criminal Court as a whole given the latest progress made in the Situation of the State of Palestine. Early signs can already be traced by following statements from incoming officials and members of Congress. In fact, akin to the American Service-Members’ Protection Act of 2002, the House of Representatives already passed a bill facilitating the incoming President to introduce sanctions to any foreign person ‘directly engaged in or otherwise aided any effort by the International Criminal Court to investigate, arrest, detain, or prosecute a protected person’. By ‘protected person’, the bill squarely protects Prime Minister Netanyahu and former Defence Minister Gallant.
Although the United States and Israel are not members of the Assembly, they retain observer status as per Article 112(1) and have addressed, at times, the general debate portion of the annual meeting. It is likely both States will provide critical observations and perhaps veiled threats towards the Court sometime between December 2-3 when the general debate takes place. How States Parties react to the positions exhibited by the United States, Israel or other States targeting the independence of judges or the Prosecutor for simply pursuing their mandate under the Rome Statute, will foretell the degree of governance unity by the Assembly.
States Parties, by virtue of Article 112, have an absolute governance responsibility towards the Court beyond individual political positions. States Parties do not need to abandon their institutional duty to govern the Court to field their criticism. In fact, States Parties did commission in 2019 a group of experts to independently assess the health of the Court in order to ‘identify ways to strengthen the ICC and the Rome Statute system in order to promote universal recognition of their central role in the global fight against impunity and enhance their overall functioning’. The Independent Expert Review report was delivered in 2020 with 384 recommendations which the Assembly monitored implementation via a Review Mechanism led by five States Parties. The Review Mechanism is scheduled to conclude its mandate at this ASP session. Crucially for strengthening governance unity within the Assembly and defend the Court from political attacks, the report recommended:
R169. The ASP and States Parties should develop a strategy for responding to attacks on the Court by non-States Parties, and should be prepared to speak up in the Court’s defence, given that its dignity and political impartiality seriously inhibits its ability to defend itself against unsubstantiated and biased attacks. The ASP and States Parties could further conduct public information campaigns in their countries, with support from the Court’s PIOS in developing communication materials.
Recommendation 169 was positively assessed by the Bureau and implemented under the guidance of Silvia Fernandez de Gurmendi (Argentina) during her presidency of the Assembly in 2022. Recommendation 169 translated into concrete actions including an absolute coordinating role for the Assembly Presidency (the President and two Vice-presidencies) and deploying diplomatic means to diffuse further attacks to the Court. It remains to be seen during the ASP23 meeting and after the conclave ends, how the ASP Presidency and Bureau make use of their protocol under recommendation 169 to counter ongoing attacks on the Court by powerful non-party States like the United States, Israel and Russia. So far in 2024, aware of the incendiary comments emanating from these three States, ASP President Päivi Kaukoranta (Finland) issued only one statement in May in relation to the Situation of the State of Palestine. No further statement has been forthcoming. In addition and absent action from the Assembly Presidency, the Court Presidency published its own statement after Russia issued arrest warrants for two judges allocated to the Situation in Ukraine and Georgia. If the Court is to provide accountability for the ‘most serious crimes of concern to the international community as a whole’, how States Parties protect it from political attacks matters.
Besides external attacks on the Court, the situations pursued by the Office of the Prosecutor in Ukraine, the State of Palestine and Sudan, to mention a salient few, have rendered a fragmented cooperation response by States Parties ahead of their Hague meeting. In particular, the blatant non-cooperation by Mongolia in arresting Vladimir Putin and the public defiant statements by several parties, for example Hungary and France, possibly resisting arrests for wanted Israeli officials, will challenge the Assembly of States Parties as a whole to show a unified front as masters of the Rome Statute. The plenary on cooperation on Thursday 5 December will be the moment to observe to which degree States Parties uphold their duty to cooperate with the Court and to take decisive action when confronted with instances of non-cooperation under their prerogative in Article 112(2)(f). More so knowing France, together with Senegal, are the Assembly’s focal points on cooperation. Since the failure to arrest Al-Bashir there has been sustained criticism by academia and practitioners about the lack of teeth behind the Assembly’s mostly diplomatic means to act under Article 112(2)(f). While the Assembly instituted a formal process to address non-cooperation and also developed a toolkit for States Parties, these remain useful only at the symbolic level. With the added pressure to dissuade non-cooperation in the context of the Situation of the State of Palestine, the Assembly must take steps to increase the cost of non-compliance with Court ordered cooperation requests and failure to honour arrest warrants. The Assembly might, for example, explore options to bar candidates to elected positions from recalcitrant States and calculate the cost of non-compliance, as it currently does now for unpaid dues by the United Nations for Security Council referrals, as per Article 115(b).
On the internal institutional front, the 23rd session of the Assembly will grapple with important questions, to focus on a salient few: the approval of the budget, election to subsidiary bodies, the review of the crime of aggression and delicate questions about an external review into alleged misconduct by the Prosecutor. On the budget, the perennial question is if the Assembly agrees with the proposed budget as submitted by the Court or settles on a lower amount. Under Article 112(2)(d), States Parties decide on the final financial envelope after considering the technical advice of the powerful Committee on Budget and Finance. The debate has always centred whether the Court is properly funded to pursue its mandate as key funding States like Germany, France, Japan and the Netherlands call for ‘efficiencies’ in the budget. For example, during the 22nd Assembly meeting in 2023, States Parties agreed on a budget that was €9 million or 5% below the submission of the Court for 2024. This time around, the Court is asking for an increase of 10.4% compared to 2023, totalling €202,613,600, which the Registry, Office of the Prosecutor and Judiciary make the largest allocations. In its report to the Assembly, the Committee on Budget and Finance has recommended approving only an increase of 6.6% (€199,502,200). Part of the reasoning offered by the Committee rested in its ‘concerns regarding the substantial financial burden posed by the extended mandate of judges’. The difficulties in the Al Hassan trial and the infrequent involvement of Judge Mindua seems to resonate with this observation. Nonetheless, quality international criminal justice is expensive when States Parties also do not comply with their financial assessed contributions as per Article 115(a). By October 2024, 47 States Parties had not contributed to the 2024 budget, with 27 States in arrears and 13 unable to vote under Article 112(8). In total, €32.7 million are missing from the Court’s coffers. Dully payment of assessed contributions is another way to enable accountability for Rome Statute crimes.
In terms of elections, three subsidiary bodies will renew their membership. The Board of the Trust Fund for Victims will have a competitive election of six candidates for five spots. The Assembly, as per a recommendation from the Bureau, is set to appoint nine unopposed members to the consequential Advisory Committee on Nominations of Judges, including former ASP President Kwon. Finally, short of one required candidate from the Asia Pacific group of States, the Assembly will elect four unopposed members of the Committee on Budget and Finance. Given its outsized role under Article 112(4) to review the Court’s proposed budget, the lack of States Parties involvement in having a competitive election for the Committee will impact the quality of advice received by the Assembly. For example, absent any vetting or previous evaluation of candidacies, one wonders the suitability of the Argentine candidate. Given the governance architecture of the Rome Statute, all elections or appointments matter to make sure organizational excellence is attainable.
An important component in the agenda for the Assembly this year is agreeing the preparations necessary to hold a meeting of States Parties to review the amendments of the crime of aggression. Mandated by the Kampala Review Conference in 2010, and after the activation of the Court’s jurisdiction over the crime in 2017, the Assembly will have an opportunity to review its scope during the second quarter of 2025, specifically focusing on ‘aligning its jurisdiction with the jurisdiction of the Court for the three other core crimes’. Singularly important for the Situation of Ukraine, States Parties will conclude 2025 with a momentous decision to end the dual jurisdictional regime for crimes under the Statute. While the 23rd session will focus on agreeing a date for the review meeting, initial reactions during the general debate are likely to provide an insight where States stand in the debate.
Finally, while not formally on the agenda, the recent decision by the ASP Presidency to commission an external review into allegations of misconduct by the Prosecutor will surely feature in her oral report to the Assembly and in corridors of the World Forum. As per the Rome Statute, the Rules of Procedure and Evidence, related Assembly Resolutions and staff policies, it is for the Independent Oversight Mechanism to duly investigate any wrongdoing by elected officials and transmit its findings to the ASP President. The alleged misconduct was transmitted by a third party to the IOM on May 2024, but no formal investigation was pursued after the affected individual did not confirm or deny the allegations. Clear rules appear in the Statute and auxiliary documents outlining steps to conduct an investigation, sanction or remove the Prosecutor, however, as the IER report found, ‘the IOM does not as yet enjoy the full confidence and trust of all staff’. Citing concerns of ‘perceptions of possible and future conflicts of interest’, the Bureau and ASP Presidency decided to take the investigation outside the IOM. At the time of writing, it is not known how such external investigation into the Prosecutor will take place, under which legal cover, safeguards against attempted manipulation from external actors and timeline. This novel procedure, never used before by the Assembly, was agreed by the Head of the IOM and backed by some civil society actors, some calling for the temporary suspension of the Prosecutor while the investigation is ongoing. Zero tolerance for any form of harassment or other prohibited behaviour must proceed with due process, transparency and speed. Bearing in mind the immense pressure on the totality of the Office of the Prosecutor as it deals with external undue political pressures, the Assembly has an inherent duty to thoroughly investigate these allegations at the same time it must carefully explain how the procedural avenue pursued does not impair the IOM’s legal standing and processes in the future.
Thus, the high stakes at the 23rd session of the Assembly of States Parties to the Rome Statute must be carefully followed and later analysed within the overall study of international judicial governance institution. Decisions made at this session will surely impact how the Court fulfils its mandate in 2025 and beyond. Far from a standing standard diplomatic gathering, what the Assembly settles on this week will forge the Court’s viability in the near and long term.
Photo attribution: “Twenty-third session of the Assembly of States Parties opens in The Hague” by International Criminal Court / Cour pénale internationale
Photo attribution: “Twenty-third session of the Assembly of States Parties opens in The Hague” by International Criminal Court / Cour pénale internationale
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