Working Group on Amendments NYWG Nov 5, 2014

Wednesday, November 5, 2014

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Working Group on Amendments NYWG

Amendments to RP and RS Ahead of the ASP

Switzerland as Chair

- Court has delivered its report on Lessons Learned in October.

- Expediting procedures and enhance their quality. The WGLL has prepared a report

on translation issues suggesting amendments of rules of procedure.

- Study group referred proposed amendments to this working group without

recommendations.

- We will have to make the recommendations ahead of the ASP.

- Let’s begin with the Translation issue. Amendments: Rule 63 and 144b would allow

a only partial translation as long as this does not hurt the rights of the accused.

- No proposal to modify the amendments has been made in The Hague: open the floor

for comments.

South Africa (Thembile):

- SA was one of the delegations to express discomfort with these amendment

proposals in The Hague.

- National context: We have 11 official languages in SA. We require full translation in

our Courts. Problems with translation could be a clear and valid ground for appeal.

We are still looking at this matter and consulting with the capital - we’ll come back to

you.

UK (Jesse Clark)

- The context is important - states parties have asked the Court to be more efficient.

We are ready to go through wit this proposal - but we need to have the discussion

that we’re having.

- It is sensible to compare this to national processes. Rule 76(3) requires original and

language of the accused - the amendments in no way detract from that.

- Nothing in this changes the burden of proof.

- We’re giving judges the discretion to not translate things that are not relevant and not

required for fairness. 1,5 years delay just dealing with translations is enormous.

- The costs are also tremendous.


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The Netherlands (Marcel van den Boogaard)

- We support every proposal to make the proceedings more effective. We will,

however, look at all these proposals on their merits, make sure they are compatible

wit the statute and do not harm the rights of the accused. We see sufficient

safeguards in these proposals.

Liechtenstein (Rene Holbach)

- We have called on the Court to make judicial proceedings more effective and we see

this as a good proposal to do so.

Belgium (Antoine Misonne)

- These proposals conform to the RS and we support them. Speeding up the process is

very important and this is what these proposals are doing. There are plenty of

safeguards here.

Kenya (James Ndirangu)

- We support what SA has said. We feel that the issue creates further ground for even

more litigation down stream. Will it create further litigation? What is material and what

is irrelevant will be used to argue even more by defense and prosecution. Kenya

mission is consulting with colleagues in the capital and NY.

- We do not think these proposals are ready for adoption at the ASP.

Estonia (Gert Auväärt)

- We align with UK, NL and LIE. We should put more trust into recommendations

coming from the Court itself. We fully believe that these amendments could be

supported without harming the rights of victims or accused.

UK (Jesse Clark)

- Kenya is right to ask these questions - will this lead to more litigation, and what are

the criteria for the Court to make these assessments.

- Possibility of Appeal must be recognized, but so does the current situation. A 1,5 of

delay, it gives the defense the reason to appeal for unnecessary delay. We therefore

do not see this as reason not to support this amendment.

- On criteria, what’s important is seeking the views of the parties. The rule is flexible.

We entrust the judges to determine issues like guilt and innocence. Asking them to

determine relevance and fairness for the accused seems well within their capabilities.


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- We’’ consult with delegation on how to proceed with this method. We need a

recommendation before the next ASP.

- Second part is the question of temporary absence of a judge in the Trial phase (Rule

140bis).

- In case of Illness, or unforeseen personal reasons. Remain judges will order that the

hearing continue in the absence of that judge, on issues that have already

commenced and can be concluded in a short timeframe. In order to preserve

evidence that would otherwise be lost, and the judge will be apprised by video

recording and transcript.

South Africa (Thembile Joyini)

- This proposal will have an impact on the RS as well.

- We have concerns but the process of consultation in my capital is underway.


- We have a principal opposition for this proposal. It is inspired by ICTY/R, a key of the

common law. For continental law, the collegiality of the chamber cannot be broken;

this is in the interest of justice. It is contrary to the text of the RS.

- We would amend the RS by the rules of procedure, which is a dangerous way to

proceed.

UK (Jesse Clark)

- We see this very differently. Article 74(1) only states that judges will be present at

each stage, not throughout the trial - so it is clear that allowing temporary absence is

not contrary to the RS.

- This is not about convenience; this is for very narrow grounds — sickness, funerals.

Sometimes witnesses have to be heard for safety reasons, they cannot be absent too

long and then we need to move on, even if a judge is temporarily absent.

Australia (Julia O’Brien)

- We have doubts about this proposal — we see merits in more flexibility, but we have

a different reading than the UK at this point. Shouldn’t we be thinking about a

amendment to the statute?


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Sweden (Pernilla Nilsson)

- Normally Courts can change their own rules of procedure; we are in an exceptional

situation. This is a proposal from the Court itself, from judges, OTP and defense. We

should pay heed to their recommendations.

Kenya (James)

- We align with Belgium and SA. We need to do a little more thinking behind it.

- We are not quite clear that some lawyer will come and make a legal point of the

occurrence of this downstream.

- We could think about an alternate judge that can step in, as with the ICTY.

Canada

- We align with the UK. This is a positive way to improve efficiency and we are

prepared to support this.

Liechtenstein (Rene Holbach)

- We are with Canada and the UK. It is a very small amendment concerning a very

specific possibility.

Germany ( Till Knorn)

- We agree with that.

Slovenia

- Our view coincides with the UK. We entrust the Court with this.

Brazil (Patrick Luna)

- We do understand the legitimate concerns that the Court should be more efficient/

- These amendments should not translate into amendments that harm the rights of the

accused and the integrity of the RS. Thee amendments seem

Colombia

- We share Belgium’s reservations and insist that the concept of the interest of justice

has not been defined yet.


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- It did not escape our attention that this proposal relies a lot on the ICTY/R. The ICC

should be aware that it is a different Court that relies on the Statute and its states

parties.

- We do not agree with the UK that it is not contrary to the RS.

- There is no compelling case by the Court on this issue: there are only 3 cases where

this rule might have been applied. There was only one case where the rule could

have applied: and everyone agreed that they could proceed and there was no need

for a change of the rules of procedure. They amicably agreed that it was the best

thing to do because the witness only had 3 hours of testimony left.

UK (Jesse Clark)

- We do see a justification here. The Court has successfully done this at the occasion

mentioned by NL, and we think this speaks in favor of this amendment.

- It requires the consent of all the parties - this is about protecting the interests of all the

parties.

- I think there are many safeguards included in the proposal.

ICC (Karen Mosoti)

- There have been 3 cases where the issue arose - this is not a small issue.


- I would like to gently remind everyone that it is for a specific matter that has already

commenced, so the two issues that were raise by the ICC the testimony did not start

yet so the rule would never had applied. So only 1 case was relevant - we might as

well say that judges should not ride bicycles.


- I see quite clearly that more time and discussion is needed to confer on this

amendment.

- We should continue with the amendments to the statute.


- Two sets of amendments: Amendment 2 and 3

- Number 2 aims to extend list of war crimes to include more language in line with the

international treaties namely add more to the CCW and Protocol I

- Add the use of forbidden weapons to Rome Statute crimes: these are widely ratified

and considered customary international law


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- Please note that the footnotes to the amendments have changed

Mexico

- No updates, but open to more work on our amendment on adding drug trafficking to

the Rome Statute.

------------ Trinidad and Tobago was not present to discuss amendments -----------


- No updates on improvements: the proposal remains the same

- To clarify our position: this is not a South African proposal, but South Africa

submitted on behalf of African States Parties to the Rome Statutes in 2009.

Kenya (James)

- Nothing to add to proposal, but Kenya is glad to have these proposals continue in its

name.

- Clarify that these amendments are on behalf of the African States parties.

- Open floor for comments on Amendment Proposals.

New Zealand (Alexandra Marwick-Lennox)

- All of the proposals on the table for some time, many delegates were not in Kampala

where these proposals were first submitted.

- It may be of interest whether there proponents of the proposals would be willing to

update the new delegates on where the proposals have gotten to.


- My understanding is that people read the notes of previous meetings, but the

proposals are under active consideration and we need reactions of States parties.

- Secretariat could give a summary regarding the state of play of the Rome Statute

amendments.

- Secretariat reminds me that there has not been a review conference.

- This WGA exists after Kampala to continue the discussions on the amendments.


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UK (Jesse Clark)

- I would like to understand this amendment better on the question of jurisdiction.

- If Court determined a territorial state that they were unable or unwilling to prosecute,

would that State still be able to request a Security Council deferral? What is meant

by a ‘ State with jurisdiction’ within the meaning of the proposal?

- What is understood by the phrase ‘fails to decide’ in paragraph 3 of this proposal?


- I was at the ASP in 2009 when this proposal was made: Whether a State is unable

or unwilling to investigate: the answer is yes: the State with jurisdiction, the territorial

state where crimes happened or State whose nationals were involved in the crimes

- What you do here is extend right or authority for a deferral to States, normally the

territorial state where the crimes happen.

- This is about peace versus justice, and this allows us to have peace before justice

for states in or coming out of conflict.

- The state negotiating a peaceful outcome may need the case to be deferred for a

year so that they can establish mechanisms for justice.

- It’s a practical proposal for fragile peace processes.

- Second question was on whether Security Council ‘fails to decide’: this refers to a

request by the AU to defer the situation in the Sudan and the SC never made a

decision.

- This proposal was to make sure the Security Council made a decision: this is a way

of operationalizing the Security Council in Article 16.


- I would like to clarify: in your explanation, there could be situations where two States

could ask for a deferral: there could be a territorial state and a state whose nationals

are accused.

South African (Thembile Joyini)

- This could happen, in practice, the State in the middle of a civil war or crisis will likely

request deferral. It’s a practically focused proposal.

Norway

- If the amendment allows a State to request SC deferral: under current rules of

procedure at the Security Council, couldn’t States already request a deferral: what is

the added value?


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- The added value is that the State can write to the SC, but the SC can ignore this

request.

- This proposal gives the State a right to request a deferral to the SC.

- What it does is that it highlights the right of States to request, and then the SC must

pay necessary attention to the situation.

- To have the SC focus on the issue, deliberate on it and make a decision is the point

of this amendment.


- Concerns about broadening out the power to defer, would this risk further

politicisation of the Court?

- We are comfortable that the SC has power to defer cases where it is a matter of

international peace and security, and the SC has that primary role. We have similar

questions on the value added of paragraph 2 of the amendment.

- Does South Africa fear that the SC will not take it seriously? Question then how do

we know when the SC has failed to decide? Our understanding from being on the

SC is that the practice that where a resolution is unlikely to achieve the requisite

votes, it is very unusual for the SC to actually bring a resolution forward for a vote?

- Is there some mechanism to work out whether there has been a failure to decide?


- Add to Australian question: concerning paragraph 3, if the SC declines the request

and says no, would that also fall under paragraph 3?


- I am not up to date with the SC Rules of Procedure.

- In the Sudan case, it was never placed on the agenda.

- It’s not about resolutions, it is about it being on the agenda and thus the SC is able

to make a decision yay or nay.

- As it stands, a note can be sent to the SC informing them of the situation in a State,

but the concern is that requests must be taken seriously and adding paragraph 2

formalises this and adds gravitas


- What happens if the SC receives the request, but declines it?


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- If the SC has applied its mind to the matter, by being on the agenda, then it has

decided.

- Sudan wasn’t even on the agenda, so this would make it hard for the SC to ignore

the request.

- Example of request for deferral from last year: the one after the AU decision where

Kenya applied for a deferral.

- In that request, the SC considered the request: there were deliberations, discussions

and Ministers were given a hearing and listened to. This proposal was a result of

concerns about how the SC dealt with the situation.


- If we take the Kenya case as an example, if SC receives request for deferral,

considers it and doesn’t take a resolution on it, is that sufficient?


- When it comes to that, the matter should be treated on a case-by-case basis on the

merits of the case.

- What we want to emphasise is that if there is a complaint or a person is asking for

help, once you give that person a hearing and listen to that person and take the

matter seriously, and you deliberate on the matter, the likelihood is that the

complainant will walk away and not complain.

- In the Sudan case, the treatment was not good and the hearing was not given.

New Zealand (Alex)

- Maybe the point is wanting to have something to encourage SC consideration of the

issue, not necessarily a decision or not. We understand the concerns about the lack

of follow-up on certain issues. We think the reference to taking a decision may not

capture exactly what is being discussed.

Kenya (James)

- In request for deferral by Sudan, the SC has never acknowledged receipt of the

request. We are talking about a very preliminary stage: a letter acknowledging

receipt of letters. These are very practical amendment proposals. The least the SC

can do is formally acknowledge a request. When and how it is to be considered is

something that the amendment does not need to address.

- Kenya has made two deferral requests, SC acknowledged receipt of requests, but

denied them.


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- What we are discussing now is something different: the SC has not, in five years,

acknowledged the request for a referral.

- We must democratize Article 16.

UK (Jesse Clark)

- Not sure I agree with characterisation of the previous requests.

- On adoption issue: Sudan referral is on agenda on the Council and Prosecutor briefs

the Council

- Just because something is on the agenda, so not sure I see what the point of getting

something on the agenda is.

- Many States are working very hard to answer the letters addressed to the SC.

- This was discussed at the working methods debate and many would be happy to

see new efforts to move the Council, but these are being blocked by members not

present.

- It would take a lot to push the Council to make a decision: the UK’s record is clear

for better working methods in the Council.


- Problem is that the Council has not address requests and letters in the past


- I think what we tried to do with the text ‘fails to decide’ or ‘fails to consider’ is exactly

what the UK is seeking to unblock.

Kenya (James)

- It is true that Sudan is on the agenda every six months, but the deferral is not on the

agenda.

UK (Jesse Clark)

- If you look at the agenda, Sudan is on the agenda constantly.

- The agenda item within which that topic could be discussed is on the agenda

- In relation to the Kenyan deferral: the agenda item was peace and security in Africa,

so ICC proceedings don’t need particular ICC cases.

- The SC agenda is a very clumsy and broadly phrased thing.


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Liechtenstein (Stefan Barriga)

- I have a global but procedural question: when we met in June, we heard a

presentation by Kenya. In the end the Kenyans said they would do some redrafting

of the amendments and we have been waiting for the new text.


- Could you enlighten us on the state of play on these issues?

Kenya (James)

- This is true; we did say that we were reconsidering some of the issues.

- Consultations on these matters do take a long time, but surely we can continue the

proposals.

- We will be able to give direction when it is received, should there be any change, we

will let you know.

UK (Jesse Clark)

- I don’t have the amendments to the Rules of Procedure from last year, is the

proposed amendment seeking to do something not done by the Rules of Procedure

amendment from last year? Is there a difference in outcome?


- To refresh memories: Amended rule 134 of the Rules of Procedure changed rules

on presence or absence and video conferences, Heads of State or Government

could be represented by counsel in exceptional circumstances in interests of justice.

This is now an amendment to the Rome Statute, which we already had last year.

- Is there overlap or maybe contradiction between one or the other?

Costa Rica (Georgina Guillen)

- This problem is our delegation’s point of view: concerning amendments to Rules of

Procedure and amendments to Art 134: we understood there would be no need of

additions to Article 63 to reach what seems to be the aim of this proposal

Liechtenstein (Stefan Barriga)

- We do not want to hypothetically comment on text. Some of the amendments are

overtaken by events in the meantime and need new drafting to fit with where we are

now with the text.

- Art 63: I would worry that this amendment would undermine Art 134(quarter)


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- Proposed amendment 2: Heads of State may be exempt from prosecution – could

you clarify what you mean by ‘may’?

- We already indicated that we think this is very problematic.

- For Art 70 amendments, we would ask what the added value of ‘by any persons’ is?

- Is amendment 4 still on the table since IOM is operational?

Kenya (James)

- Liechtenstein will be first to know after Chair of any changes to timeline.

- We should never forget that these proposals were of a practical nature and were

fixed in time, though events have proceeded since then.

- We should ask ourselves if it is time to merge the two tracks: maybe we should

merge the successful amendments of the Rules of Procedure into the Rome Statute

- Trial Chamber objected to use of Rules of Procedure and said they are not in conflict

- It is time to align what is in Rule 134 and what is in Art 63.

- The use of ‘may’ gives some discretion to the Court rather than ‘shall’.

- I am under no delusion that amending Article 27 will be difficult.

- As to Art 70, we can think about it as it is right now, and we will inform you of any

changes.


- It is easier to have a deliberation on your proposals if we have the latest versions.


- On proposal to refer to regional courts; we are open to considering that amendment,

but our concern would be that additional amendments to the Statute would be

required further than what Kenya has supplied.


- It would be good if Kenya could confirm bilaterally which proposals or which issues

you would like to focus on. It would be good for us to know what is your interest and

which topic you would like us to discuss. We need a structured approach to start

really going into the substance and to do that we need an actual text to deliberate

on; otherwise it is a hypothetical discussion.

- I have suggestions for work to come: Friday afternoon meeting

- We will meet at least five times more to discuss Rules of Procedure and Rome

Statute proposals

- We need to accelerate our work a little, especially with amendments to rules of

procedure and evidence.

Documents

Working Group on Amendments NYWG Nov 5, 2014