Human Rights Watch Briefing Note for the Twenty-Third Session of the International Criminal Court Assembly of States Parties

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The states parties to the Rome Statute of the International Criminal Court (ICC) will meet from December 2-7, 2024, in The Hague for the annual session of the Assembly of States Parties (ASP).[1]

This year’s session takes place as the court is under extreme pressure. The ICC is currently operating in 16 situation countries including in the context of ongoing conflicts. Investigations in Ukraine and Palestine, in particular, have focused global attention on the court and attracted opposition from those who fear its reach. 

The ICC remains under attack from the Russian Federation following the issuance of arrest warrants against Russian President Vladimir Putin and Russia’s federal commissioner for children’s rights in March 2023. The court is still addressing the aftermath of a serious cyber-attack, that affected its information technology systems in September 2023. The ICC and its officials have faced threats from Israeli officials and United States legislators following the ICC prosecutor’s announcement in May 2024 that he was seeking arrest warrants against senior Israeli officials as well as Hamas leaders for alleged crimes committed on and after October 7, 2023. It is critical for states parties to stand firmly in defense of the court and its mandate. This should include taking steps to remove any threat of US sanctions against the court, including by putting in place measures to nullify—or at least minimize—their effect.

While states parties—both individually and through the Assembly presidency—have been vocal in defending the court’s independence, their support for the ICC’s work has been inconsistent across situations. Unfortunately, this has replicated some of the same political dynamics and the very pressures from which states parties are meant to insulate the court. This could have an impact on ensuring victims’ equal access to justice. Meanwhile, states parties have continued to fail to provide the ICC with resources adequate to address a chronic mismatch between its workload and annual budget, and to secure the cooperation needed in the execution of pending arrest warrants.

States parties should make the most of this year’s Assembly session to step up their efforts and ensure that the court has the consistent, multi-faceted support it needs to carry out its mandate across all situations on its docket.

This briefing note sets out recommendations to states parties and the Assembly of States Parties for the 23rd Assembly session in the following priority areas: 1) ensuring consistent political, financial, and practical support for the ICC’s global mandate; 2) continuing efforts to strengthen the court’s performance through follow-up on the Independent Expert Review process; and 3) amendments to the Rome Statute.

I. Ensuring consistent support for the court’s global mandate

The ICC is an independent judicial institution, and its officials have the primary responsibility to safeguard that independence. And yet, increasingly, states parties have to shield the court and its officials from external pressure and stand firmly behind the independent and impartial delivery of the court’s mandate when it is under threat.

In 2022, the Assembly “[r]eaffirm[ed] its support for the consistent implementation of the Court’s mandate across the situations and cases under its jurisdiction in the interests of justice and the victims’ right of access to justice, and stress[ed] the need for sustainable resources for all situations and cases as well as cooperation with the Court to that end” (emphasis added).[2] At last year’s session, in 2023, Costa Rica delivered a statement on behalf of a cross-regional group of 48 states parties, referring back to this language and declaring: “To ensure that we live up to the challenges of today, and the legitimate expectations of victims and affected communities, we must put those words into practice by providing the Court the political, operational and financial support it needs. As Assembly, we must support the work of the Court across each and all situations before it. All victims deserve equal access to justice.”[3]

There have been important examples of this necessary consistency and support. During the last Assembly session, several states parties spoke in their General Debate statements about the need for victims to have equal access to justice.[4] Over the last two years, the Assembly presidency has consistently condemned threats and attacks against the court and its officials, regardless of where these came from; for example, this has included statements issued after the announcement of coercive measures by Russia against court officials and threats to the court and its officials with regard to the Palestine investigation.[5] For the first time ever, the UN General Assembly as a whole condemned “any threats, attacks or interference against the Court, its personnel or those cooperating with it” in its resolution on the annual report of the activities of the ICC.[6]

In a long-awaited development, 10 years after first giving the ICC jurisdiction through article 12(3) declarations, Ukraine has elected to fully join the community of ICC states parties and deposited its instrument of accession to the Rome Statute with the UN Secretary-General on October 25.[7] While, regrettably, as discussed below, this includes invoking article 124, ratification by Ukraine in a current climate of pressure and threats directed at the court by Russian officials and US legislators—discussed further below—reflects a significant step forward.

Unfortunately, however, state party support for the court’s work has been marred overall by being unprincipled and inconsistent.

For example, Human Rights Watch has observed increasing divisions among states parties in the context of Assembly discussions based on their governments’ stated position in support of specific investigations. This is particularly true with regards to the Palestine and Ukraine investigations. Human Rights Watch’s monitoring indicates that, while political considerations have always factored into state party postures on a number of issues, policy positions seem to be increasingly motivated by how states parties perceive them affecting potential progress in specific investigations they support.  

The enforcement of ICC arrest warrants—particularly those against powerful individuals—remains a serious challenge. In a positive development, in July 2023, a court order issued by a South African court settling a case brought by an opposition party against the South African government publicly recorded that the ICC “has confirmed that the Republic of South Africa, and all other state parties, are obligated to arrest President Putin in terms of the ICC’s arrest warrant and requests for cooperation” and that South Africa had taken steps to domesticate the ICC’s arrest warrant.[8] Putin did not attend the BRICS summit in person, providing a powerful affirmation of the legitimacy of the court’s warrant.[9] Unfortunately, over the past year, Putin was invited to several events on the territory of ICC states parties. While he ultimately did not attend most of these events, with the exception of a visit to Mongolia—as discussed in more detail below—he should not have been invited in the first place; the governments concerned—Mexico, Peru, and Brazil—did not publicly state that they were under an obligation to arrest Putin.[10]

State party messaging around voluntary contributions to the court also highlights inconsistent support. As discussed further in the relevant section below, the ICC has long been operating in a situation of chronic underfunding. In 2022, this led the prosecutor to ask states parties to provide his office with additional resources to support its work across all situations through voluntary contributions and gratis personnel.[11] Unfortunately, some states’ public messaging that linked contributions either to investigations in Ukraine or Palestine created perceptions of politicization in the court’s work.[12]

“Double standards” have been misused in multilateral fora to justify anti-accountability positions, rather than as a call to ensure accountability, regardless of where crimes are committed or by whom.[13] At this critical juncture for the ICC, states parties need to ensure that their actions and statements in all fora show consistent support for the ICC and the equal application of international law.[14] This is imperative to uphold the legitimacy of the institution and its proceedings, as well as the broader international justice system, including—and most importantly —in the eyes of victims and affected communities.

Recommendations to ICC states parties

• In General Debate statements, the cooperation plenary, and all other relevant opportunities:
  • Speak directly and forthrightly about the critical role of the ICC across all situations open before it;
  • Reject and commit to addressing double standards in victims’ access to justice;
  • Call on all states to join the ICC to ensure its universal reach; and
  • Express support for the ICC’s work across all situations and commit to providing the court with the consistent financial, political, and practical support needed to fulfill its global mandate.
• Use all available public information tools, including press comments and social media posts, to publicize support for the court’s impartial and independent work across all situations in the lead-up to and during the Assembly session.

Related Human Rights Watch Materials

• Elizabeth Evenson, “Impartial International Justice Mechanisms—Together with International Support—Needed for Accountability for Crimes in Israel–Palestine Conflict,” February 22, 2024, https://www.hrw.org/news/2024/02/22/impartial-international-justice-mechanisms-together-international-support-needed
• Alice Autin,“On EU’s ‘Day Against Impunity,’ Stand for Equal Justice,” May 23, 2024, https://www.hrw.org/news/2024/05/23/eus-day-against-impunity-stand-equal-justice
• Elizabeth Evenson and Nandita M. Chowdhury, “Impartial Justice Needs Global Support More Than Ever,” July 15, 2024, https://www.hrw.org/news/2024/07/15/impartial-justice-needs-global-support-more-ever
• Claudio Francavilla, “International Court Rulings Require EU Action on Israel and Palestine,” October 25, 2024, https://www.hrw.org/news/2024/10/25/international-court-rulings-require-eu-action-israel-and-palestine
• Allan Ngari, “Strong Support for Ongoing Sudan Probe at UN Rights Council,” October 11, 2024, https://www.hrw.org/news/2024/10/11/strong-support-ongoing-sudan-probe-un-rights-council

A. Addressing threats and obstruction of justice at the ICC

Over the past year, the ICC and its officials have faced threats aimed at hampering the court’s impartial and independent delivery of justice in the context of the Palestine investigation.

On April 24, 2024, amidst speculation that ICC warrants for crimes committed in Gaza were imminent, a group of 12 US senators sent a letter to the ICC prosecutor threatening to end all US support to the ICC, sanction the institution and its officials, and bar the prosecutor, court staff, and their families from entering the US if steps were taken to pursue warrants against Israeli officials. The letter stated “[t]arget Israel and we will target you…[y]ou have been warned.”[15] Israeli Prime Minister Netanyahu also called on governments to prevent the court from issuing warrants.[16] On May 3, the ICC prosecutor issued a statement forcefully denouncing threats against the court and its officials, and recalling that the court can prosecute individuals for obstructing justice under article 70 of the Rome Statute.[17]

On May 20, the prosecutor applied to the ICC judges for arrest warrants against three Hamas leaders (Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri—commonly known as Mohammed Deif —and Ismail Haniyeh) and two senior Israeli officials (Prime Minister Benjamin Netanyahu and then-Defense Minister Yoav Gallant) for alleged crimes committed on or since October 7, 2023 in the context of the ongoing Palestine investigation.[18]

On June 4, the US House of Representatives passed a bill aimed at imposing ICC-related sanctions.[19] The proposed law is reminiscent of the sanctions imposed in 2020 by then-US President Donald Trump on the previous ICC prosecutor, Fatou Bensouda, and one of her senior officials with the aim of intimidating the court from pursuing cases against US and Israeli personnel for crimes committed in Afghanistan and Palestine.[20] President Joe Biden revoked the sanctions in 2021.[21] The effects of US sanctions are by no means limited to the individuals targeted. To minimize risk, financial institutions often go out of their way to comply with US regulations and may preemptively refuse to deal with transactions involving the ICC. In addition, the 2020 executive order was aimed at and created apprehension and uncertainty for nongovernmental organizations, consultants, and lawyers who work with the ICC.[22]

On June 14, a cross-regional group of 94 states parties led by Belgium, Chile, Jordan, Senegal, and Slovenia issued a statement declaring their “unwavering support” for the ICC as an “independent and impartial judicial institution.[23] The signatories “reiterate[ed] [their] commitment to uphold and defend the principles and values enshrined in the Rome Statute and to preserve its integrity from any political interference and pressure against the Court, its officials and those cooperating with it.”[24] The statement followed similar expressions of support by the Assembly presidency, several ICC states parties, the high representative of the European Union, UN Special Procedures, and nongovernmental organizations.[25]

In May, media outlets reported long-standing efforts by the Israeli intelligence agency to spy and intimidate the ICC prosecutor, the former prosecutor, and other court officials.[26] Dutch members of parliament launched a parliamentary inquiry and called for an independent investigation into these incidents.[27] In October, a group of civil society organizations filed a claim with Dutch prosecutors asking them to examine allegations that Israel tried to hamper the ICC’s inquiry in the Palestine situation.[28]

At the same time, Russian arrest warrants issued in 2023 remain pending against the ICC prosecutor and six of the court’s current and former judges, and a law criminalizing cooperation with the ICC remains in force.[29] In September 2023, the court was the target of a serious cyber-attack with the objective of espionage.[30]

Against this background, states parties should use every opportunity in the lead-up to and at the upcoming Assembly session to reiterate their support for the ICC and its global mandate, and strongly condemn any threats and attacks against the court, its officials, and those cooperating with it. This should be done both publicly as well as privately with authorities in relevant countries, such as Israel and the United States. At the time of writing, states parties are discussing proposed language that would, for the first time in the Omnibus resolution, explicitly condemn threats and attacks against the court, its officials, and those cooperating with it, including potential sanctions. The Assembly should adopt this important language as an additional building block of a multi-faceted architecture of defense of the court.

But, in addition to strong political messaging and use of bilateral and multilateral diplomacy in defense of justice, states parties should also take concrete steps to limit or, where possible, nullify the effects of potential sanctions against the ICC, its officials, and those cooperating with it. This should include the adoption or implementation of national or regional blocking statutes, such as the EU Blocking Statute.[31]

Last year, in light of the above-mentioned measures taken by Russia against ICC elected officials, the Assembly requested the ICC registrar to engage with states parties on the issue of coercive measures against current and former court officials and court staff and to report to the Bureau on this matter.[32] The Registry prepared a concept note that was first circulated to states parties for their input and subsequently discussed in the Bureau’s cooperation facilitation.[33] The concept note lays out the privileges and immunities enjoyed by ICC elected officials, court staff, counsel, and persons assisting defense counsel and experts at the court. It recalls that states parties bear the primary responsibility to protect these individuals from the effects of coercive measures and calls for continued dialogue between the court and states parties, as well as the adoption of an action plan by the Assembly setting out steps to be taken to “neutralise or mitigate the impact of any coercive and other restrictive measures,” such as sanctions. Finally, the concept note enumerates specific actions to be taken to protect former ICC elected officials. 

States parties should build on this by committing, at this session, to continue to identify and carry out the necessary steps in consultation with the court to defend court officials and staff from coercive measures and extend such protections to those cooperating with the court, including human rights defenders and civil society organizations.

Finally, the Assembly and states parties should integrate responses to attacks against human rights defenders and civil society organizations into their broader strategies for confronting obstruction of the ICC’s work. The strategy adopted by the Bureau in 2022 to respond to attacks against the court by non-states parties in line with the Independent Expert Review (IER) recommendation 169 specifically refers to threats or attacks against “the Court, its officials and those cooperating with it” (emphasis added).[34] The latter includes civil society organizations and human rights defenders who are often targeted for their work to advance justice for victims before the ICC. Ahead of last year’s Assembly session, the Bureau adopted a set of “Guidelines and recommendations for enhancing the security of participants in the work of the Assembly.”[35] The document encouraged the Bureau to continue developing measures on this topic in consultation with states parties, the court and civil society and to report back to the Assembly at its session in 2024. The Bureau was unable to address the issue this year and will report back to the Assembly at its session in 2025.

Recommendations to the Assembly and ICC states parties

• In General Debate statements, the cooperation plenary, and all other relevant opportunities:
• Strongly condemn threats and attacks against the court, its officials, and those cooperating with it;
  • Commit to identifying and taking concrete actions to limit or, where possible, nullify the effects of any coercive measures, including sanctions, against the court, its officials, and those cooperating with it. These should include the adoption and implementation of national and regional blocking statutes; and
  • Call for enhanced protection of civil society organizations and human rights defenders at risk due to their advocacy for justice on behalf of victims, and share information about national-level policies for the protection of human rights defenders.
• Adopt Omnibus resolution language strongly condemning any threats and attacks, including through sanctions or similar measures, against the court, its officials, and those cooperating with it.

Related Human Rights Watch Materials

• “Biden Should Oppose US Sanctions on ICC,” Human Rights Watch news release, May 23, 2024, https://www.hrw.org/news/2024/05/23/biden-should-oppose-us-sanctions-icc
• Maria Elena Vignoli, “International Criminal Court Members Speak Out,”  June 17, 2024, https://www.hrw.org/news/2024/06/17/international-criminal-court-members-speak-out

B. Ensuring the court’s resources are adequate to its global mandate

ICC states parties will decide the court’s budget for the coming year during this Assembly session. For 2025, excluding payment on the host state loan, the ICC has requested €202.61 million or an increase of 10.4 percent above its €183.49 million budget approved for 2024.[36] The Committee on Budget and Finance (CBF), a technical body charged with reviewing the court’s proposed annual budget and making relevant recommendations to the Assembly, has recommended cuts to the court’s proposal. If adopted, these would leave the court’s budget at €195.9 million, or an increase of 6.7 percent from last year.[37]

Over the past three years, the court has asked for substantial increases to its annual budget, in recognition of the significant uptick in its workload and the challenging environment in which it is operating. During the last two Assembly sessions, a growing number of states parties acknowledged the court’s need for adequate and sustainable resources in their General Debate statements.[38] In addition, according to Human Rights Watch’s monitoring, some states parties who previously supported a zero nominal growth approach to the court’s budget, such as Canada, France, Germany, Japan, and the United Kingdom, finally moved away from that position. While strict budgetary discipline is required, zero nominal growth was never appropriate for the ICC and should not resurface.

At the same time, however, states parties have responded to the court’s budget proposals for 2023 and 2024 with nominal increases that were much lower than what the court requested—and lower than what the CBF recommended—and that, in reality, barely covered costs associated with inflation.[39] This trend is contributing to a further closure of the space for honest discussion between the court and states parties around the court’s resource needs.

In its budget proposal for 2025, the court outlined the complexities of its operational environment: a number of situations currently under investigation in the context of ongoing armed conflicts; limited cooperation; increased security concerns following last year’s cyber-attack, as well as intensified politicized threats and attacks against the court and its officials; the withdrawal of some United Nations peacekeeping missions that have been supporting the work of the court; and ongoing significant inflationary pressure.[40] On the latter point, the CBF noted the total increase of €12.5 million it recommends for 2025 includes €9.1 million of unavoidable costs.[41]

The court’s budget request for next year focuses on what it terms critical priorities in this context, such as security, tracking of fugitives, investigative activities, cooperation, institutional efficiency, and workplace culture.[42] While these are key areas of investment, the budget proposal also reveals ongoing resource constraints that severely affect its delivery of justice. For example, the Office of the Prosecutor noted that the 2022 strategic review of its activities “identified a significant resource shortfall within the Office’s regular programme budget devoted to carrying out its core mandated activities.”[43] It also referred to “structural resource deficiencies,” which have affected the Office’s ability to effectively deliver on its mandate over the years.[44]

To address this long-standing problem, states parties should take steps to ensure the sustainability of the court’s resources.

Over the past year, there has been a proliferation of trust funds to collect voluntary contributions from states parties. The CBF reported on three currently used to support activities by the Office of the Prosecutor (the Trust Fund for Advanced Technology and Specialized Capacity, the Trust Fund on Complementarity and Cooperation, and the Trust Fund on Geographic Diversity), as well as the Special Fund for Security established by the Registry on the heels of the September 2023 cyber-attack.[45] In addition to the perceptions of politicization that voluntary contributions have raised in the past – as discussed above—the use of extrabudgetary resources is not a sustainable funding model. The predictability and sustainability provided through the ICC’s regular budget is essential to fully support the independent exercise of the court’s mandate.

In addition, the ongoing lack of clarity among states parties regarding the relationship between the voluntary contributions received by the Office of the Prosecutor since 2022 and the court’s proposed budget for 2025 remains a challenge in this year’s budget negotiations, as it was over the last two years. While the court’s budget proposal aims to clarify the relationship between the Office of the Prosecutor’s regular budget and the extrabudgetary resources received by the office, more information—particularly on the allocation of the resources in the different trust funds—should be made public to increase transparency and support the budget negotiations.[46] The Office of the Prosecutor clarified that it intends to phase out the Trust Fund for Advanced Technology and Specialized Capacity and pivot its use of voluntary contributions toward supporting positive complementarity activities through the Complementarity and Cooperation Trust Fund.[47] It also noted that the number of secondees working with the office will decrease to 48 by the end of 2024 (from 62 at the beginning of the year) and is expected to reach a plateau of about 28 by the end of 2025.[48] 

States parties should not conflate voluntary contributions and the regular budget. They should distinguish between the different purposes they serve and avoid using the voluntary contributions made to date as a reason to reject increases in the budget for 2025. Ultimately, the best way to ensure that the court has adequate and sustainable resources to fulfill its mandate, is for states parties to strengthen its regular budget.

In addition to the ICC’s regular budget, the Contingency Fund is another important element to ensure the sustainability of the court’s resources. At the last session, the Assembly decided to exceptionally use the expected cash surplus for 2022 to replenish the fund.[49] The CBF has made clear that this is not a sustainable solution.[50] The court has proposed an automatic replenishment of the fund through assessed contributions and/or cash surpluses. The CBF recommended automatic replenishment through assessed contributions, when the amount of the fund used cannot be absorbed in the regular budget.[51] The Assembly should put in place a mechanism for automatic replenishment, which would increase the sustainability of the Contingency Fund and the court’s ability to respond to unforeseen developments.

However, it is clear that ultimately annual budget negotiations alone will not support the dialogue necessary to assess what resources are required to allow the court to more adequately deliver on its mandate in a sustainable manner. The IER recommended that the court, states parties, and civil society engage in a discussion “on the strategic vision for the Court for the next ten years,” with “an outcome of the discussion…agreeing on the level of activity that the Court is expected and desired to reach in ten years’ time and the steps (resources, cooperation and institutional development) that need to gradually occur for the organisation to reach that point” (IER Recommendation 363). This recommendation, although assessed positively, largely remains unacted upon. States parties, guided by the Assembly presidency, and the court should work together to lay out a clear plan to fully implement it.

Recommendations to the Assembly and ICC states parties

• In statements during the General Debate, during budget negotiations, and at other relevant moments during the Assembly session:
  • Acknowledge the current mismatch between the court’s workload and its resources, and between states’ commitment to justice and the resources they make available;
  • Firmly reject arbitrary approaches to setting the ICC’s budget, including a strict zero nominal growth approach; and
  • Reject the use of voluntary contributions as an ongoing funding model in favor of open dialogue between the court and states parties as to what adequate investment looks like to permit the court to fulfill its mandate robustly and consistently across situations.
• Scrutinize the CBF’s recommendations and adopt a 2025 budget that comes as close as possible to ensuring the effective implementation of the court’s mandate across all situations.
• Establish a mechanism of automatic replenishment of the Contingency Fund through assessed contributions.

Recommendation to the Assembly president

• Commit to following up on the discussions initiated during the commemoration of the 25th anniversary of the Rome Statute and laying out a plan to support the court in the development of a 10-year strategic vision in furtherance of IER recommendation 363.

Related Human Rights Watch Materials

• “Human Rights Watch’s Statement to the Assembly of States Parties to the Rome Statute Committee on Budget and Finance 45th session,” September 2-13, 2024, https://www.hrw.org/news/2024/09/20/human-rights-watchs-statement-assembly-states-parties-rome-statute-committee-budget

C. Responding to non-cooperation and avoiding non-essential contacts as critical steps in arrest strategies

On September 2, Russian President Putin entered Mongolia to attend an official ceremony commemorating a Soviet-Mongolian military victory during World War II that was held the following day.[52] Ahead of the visit, several states parties, the Assembly presidency, and civil society organizations called publicly and privately on the Mongolian authorities to abide by their Rome Statute obligations to arrest Putin should he enter the territory of Mongolia.[53] Unfortunately, they did not, and Putin was welcomed in Mongolia’s capital, Ulaanbaatar. This was the first time that Putin had traveled to the territory of an ICC state party since the issuance of an arrest warrant against him by the court in March 2023. His visit was an affront to the many victims of Russian forces’ crimes as well as other victims of serious crimes around the world who look to the ICC, and the support of its states parties, for justice.

On October 24, an ICC pre-trial chamber determined that Mongolia failed to fulfill its Rome Statute obligations by not arresting Putin when he entered the country’s territory.[54] The judges noted that Mongolia did not provide any valid justification for its failure to comply with its obligations, nor did it indicate a willingness to cooperate with the court in the future.[55] Based on that, “in view of the seriousness of Mongolia’s failure to cooperate with the Court,” the pre-trial chamber decided to refer the finding of non-cooperation against Mongolia to the Assembly under Rome Statute article 87(7), which provides that the court may refer such findings to the Assembly or the Security Council, when the Council referred the situation to the court.[56] Mongolia has sought leave to appeal and requested that the effect of the pre-trial chamber decision be suspended.[57] Decisions on Mongolia’s requests were pending, at the time of writing.

The Mongolian government’s inaction vis-à-vis Putin has been widely condemned, with states parties and regional organizations like the EU speaking out in support of the court and registering their disappointment privately with Mongolian authorities.[58] Diplomatic condemnation, and related action, is the first—and strongest—tool states parties have at their disposal to respond to instances of non-cooperation. All states parties should reinforce these efforts and look for opportunities to engage Mongolia on this issue.

Given a possible appeal and suspension of the effect of the pre-trial chamber’s decision, it is unclear whether a finding of non-cooperation against Mongolia will be before the Assembly for action. In case there is a final referral of a finding of non-cooperation to the Assembly by the time the upcoming session begins, states parties should be prepared to respond robustly, making use of the existing procedures. Even if the finding is not before the Assembly, states parties should use the session to discuss and augment their practice when it comes to enforcing findings of non-cooperation.

To date, the Assembly has failed to live up to its responsibilities on previous findings of non-cooperation. 

In 2011, the Assembly adopted a set of procedures related to non-cooperation, including to respond to judicial findings of non-cooperation. These procedures provide for a number of possible steps: meetings of the Assembly’s Bureau with the state concerned by a finding of non-cooperation; a public meeting with the Bureau’s New York Working Group; appointment of a facilitator to discuss the issue; discussion of a draft Assembly resolution containing concrete recommendations; and then possible adoption of such a resolution regarding an instance of non-cooperation.[59]

In addition to Mongolia, ICC judges have issued non-cooperation decisions against several states parties and referred these findings to the ASP.[60] Apart from some early practice regarding non-cooperation by Chad and the Democratic Republic of the Congo, the only action the Assembly has taken in response to these findings is to note the findings and the impact of non-cooperation on the court’s effective functioning in Assembly resolution text.[61]

To be sure, there are limits to the powers of the Assembly, but a preference for operating by consensus and a reluctance of states parties to confront their own has deprived the ICC of what could be an important enforcement arm.

Human Rights Watch urges the Assembly to ensure that it is equipped to enforce the court’s judicial findings of non-cooperation—in anticipation of a final decision against Mongolia and any other findings that may be referred to it in the future. Unfortunately, while the current non-cooperation procedures outline a clear, if only permissive, process for responding to formal findings of non-cooperation, they stop short of prescribing specific steps the Assembly can take collectively. States parties should discuss further review of the procedures and possible revisions, including the eventual identification of such steps.

Human Rights Watch is also concerned by meetings between senior ICC state party and UN officials and Putin on the territories of non-states parties.[62] Regrettably, in October, UN Secretary-General Antonio Guterres met Putin in Kazan in the margins of the BRICS summitand had a public photo opportunity with him.[63] In 2013, the United Nations adopted guidelines on contacts with individuals wanted by the ICC; it is unclear whether this visit fell within these guidelines.[64] Regardless, the Secretary-General’s visit and photo-op with Putin were not accompanied by a clear statement of support for the ICC and its arrest warrants. The Assembly’s yearly resolution on cooperation “[u]rges States Parties to avoid contact with persons subject to a warrant of arrest issued by the Court, unless such contact is deemed essential by the State Party.”[65] Although the resolution language leaves it up to each state party to determine whether contacts are essential, rather than establishing consistent guidance for all states parties—and last year’s resolution included additional language in this regard—the call on states parties to avoid non-essential contacts remains.[66] Avoiding non-essential contacts contributes to the political isolation of ICC suspects. It signals that “business as usual” is over for fugitives—an important step in long-term arrest strategies. In addition, avoiding non-essential contacts shows commitment and respect to victims of alleged crimes.

Recommendations to the Assembly and ICC states parties

• In General Debate statements, the cooperation plenary, and all other relevant opportunities:
  • Express regret for the ongoing lack of adequate cooperation with the court and commit to providing the court with the practical support it needs to fulfil its mandate across situations, including through the execution of pending arrest warrants;
  • Commit to following-up to judicial findings of non-cooperation in the strongest possible terms, both as individual states parties and, collectively, through the Assembly; and
  • Commit to avoiding non-essential contacts with ICC fugitives and call on other states parties to do the same.
• Mandate the Assembly president to work within the Bureau to develop measures to enforce the finding and report back to the Assembly as soon as possible, if there is a final judicial finding of non-cooperation against Mongolia referred to the Assembly.

Recommendation to the Assembly president

• Request the non-cooperation focal points to further review the non-cooperation procedures in light of lessons learned to date, and recommend possible revisions, including the eventual identification of concrete steps that can be taken by the Assembly.

Related Human Rights Watch Materials

• “Mongolia: Arrest Putin,” Human Rights Watch news release, September 2, 2024, https://www.hrw.org/news/2024/09/02/mongolia-arrest-putin
• Alice Autin (Human Rights Watch), “Putin’s Red Carpet in Mongolia Was a Betrayal of Justice and Accountability,” commentary, The Kyiv Independent, September 18, 2024, https://www.hrw.org/news/2024/09/18/putins-red-carpet-mongolia-was-betrayal-justice-and-accountability

II. Review of the International Criminal Court and the Rome Statute system

In December 2019, the Assembly commissioned a group of nine independent experts (the IER) with assessing the work of the court to make “concrete, achievable, actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole.”[67] This stemmed from a shared concern amongst the court, states parties, and civil society, that the court was not adequately delivering on its mandate.

In September 2020, the IER issued its final report with nearly 400 recommendations.[68] The IER report has provided a unique common framework for discussion among stakeholders about the changes needed to bolster the court’s performance. In the last four years, states parties and the court, in discussions with other relevant stakeholders, including civil society and the experts, have been assessing the IER recommendations with a view toward their implementation. These discussions were overseen by the Review Mechanism, a body tasked with planning, coordinating, keeping track of, and reporting on the assessment of the IER recommendations and further action.[69]

This year, in anticipation of the Review Mechanism’s wind-down, mandate holders in the ASP’s working groups have largely taken over monitoring and discussion of the implementation of the IER recommendations, while the Review Mechanism has led discussions on the implementation of IER recommendation 105, on a tenure policy for ICC staff.[70] Regrettably, upon request from some states parties, these discussions were closed to civil society; this was an unfortunate departure from the otherwise transparent and inclusive modality of work of the Review Mechanism throughout its tenure. On September 30, the Review Mechanism held a roundtable on workplace culture where most of the discussion focused on the results of the 2023 ICC staff engagement survey.

To date, all IER recommendations have been assessed and are being or have been implemented.[71] Thus, Human Rights Watch recommends that the mandate of the Review Mechanism not be renewed and supports the prior proposal of the Review Mechanism that overall monitoring of the process should be shifted to the Bureau.[72] The Assembly should consider favorably, any future needs for further review processes facilitated through independent experts aimed at addressing specific challenges.

Recommendations to the Assembly and ICC states parties

• In General Debate statements, during the review plenary session, and other appropriate moments during the Assembly session, express support for the ongoing review process, and commit to the essential principles that should guide its next phase, including:
  • Maintaining respect for the court’s judicial and prosecutorial independence;
  • Calling on court actors to continue to make progress in their implementation of recommendations;
  • Indicating a shared commitment to continue the process of reflection on ongoing improvement in the court’s performance, including the role of states parties in providing financial, political, and practical support; and
  • Ensuring meaningful civil society engagement.
• Adopt a resolution outlining the next steps in the review process, in line with the recommendations made by the Review Mechanism.

III. Rome Statute amendments and forthcoming review of the crime of aggression amendments

A. Pending proposals

The Bureau’s Working Group on Amendments is currently seized of a number of proposals to amend the Rome Statute. These include the proposal by Sierra Leone to amend articles 7 and 8 to include the slave trade as a crime against humanity, and slavery and the slave trade as war crimes.[73] Sierra Leone first presented this proposal to the Working Group on Amendments in 2023.[74] During the first meeting of the Working Group of Amendments on November 9, Vanuatu presented the proposal to include ecocide as a crime under the Rome Statute.[75] These amendments are not scheduled to be discussed at the upcoming Assembly session. 

B. Review of the crime of aggression amendments

The Bureau appointed a focal point on the preparations for the review of the amendments on the crime of aggression, scheduled for next year.[76] The facilitator consulted with states parties and presented the outcome of her consultations to the Bureau; it is expected that the Bureau will propose that the review take place at the UN headquarters in New York in July 2025.[77] States parties should ensure that such a review is carried out in an inclusive and transparent manner, including by ensuring genuine civil society participation.

Human Rights Watch calls on states parties to eliminate double standards in the treatment of the crime of aggression under the Rome Statute, and propose amendments that would ensure that, as with other crimes in article 5, the ICC can exercise jurisdiction over the crime of aggression pursuant to a state referral or the prosecutor acting proprio motu, when committed by state party nationals or on the territory of states parties.

C. Article 124

On August 21, Ukraine’s parliament approved a law, which was then signed by President Volodymyr Zelensky on August 24, providing for ratification of the Rome Statute.[78] Following the adoption of a second legislation implementing the Rome Statute into Ukrainian law, Ukrainian authorities deposited the instruments of ratification of the Rome Statute with the UN Secretary-General on October 25.[79]

This long-awaited and welcome step was unfortunately marred by Ukraine’s decision to invoke Rome Statute article 124.[80] This provision allows governments to limit the court’s jurisdiction over war crimes for seven years following ratification when these crimes are alleged to have been committed by their nationals or on their territory. Ukraine took this regrettable step to temporarily curtail the court’s jurisdiction over alleged crimes by Ukrainian soldiers. It remains to be seen whether article 124 can be used to exclude jurisdiction only over nationals of a state party. Regardless, this raises concerns about victims’ equal access to justice and reinforces growing criticism of states’ double standards towards international law. Ukraine should withdraw the article 124 declaration ahead of the entry into force of the Rome Statute for Ukraine on January 1, 2025.

Only two other states parties, France and Colombia, have used this article and in both cases, the restriction has since been withdrawn or lapsed. In 2015, the Assembly adopted an amendment to delete article 124 from the Rome Statute.[81] However, the amendment has not yet entered into force because not enough states parties have ratified it; this requires ratification by 7/8 of the Assembly, or 108 states parties, and to date only 23 have taken this step.[82]

Recommendations to ICC states parties

• Ratify the 2015 amendment to delete article 124 from the Rome Statute.
• Urge Ukraine to withdraw its article 124 declaration ahead of the entry into force of the Rome Statute for Ukraine on January 1, 2025.

Related Human Rights Watch Materials

• “Ukraine Moves to Join ICC,” Human Rights Watch news release, August 27, 2024, https://www.hrw.org/news/2024/08/27/ukraine-moves-join-icc