State cooperation
Effective justice is a shared responsibility
Without the essential cooperation of states, international justice simply cannot function. Without cooperation, ICC investigations and prosecutions can be severely delayed or rendered impossible. As the ICC does not have its own police force, national law enforcement authorities, sometimes with the support of international organizations, must arrest and surrender ICC suspects to The Hague.
Since victims and witnesses often remain in their original countries of residence, national authorities are also responsible for providing them with appropriate protections. For the ICC to engage with victims and witnesses as well as to collect evidence, national authorities must facilitate ICC and ASP personnel's access to their respective territories.
ICC member states should also enter into voluntarily host persons convicted by the Court to serve out their sentences, to host acquitted persons or temporarily released defendants in ongoing cases when these persons cannot return to their own countries.
But for all this to happen, politician must create conditions conducive to good cooperation in their words and actions.
Making cooperation with the ICC a reality
Cooperation with the ICC can often be reduced to simple terms: states either have the political will to cooperate, or they don't.
While this is true of many high-profile cases, a failure to cooperate can also stem from governments lacking adequate resources or expertise relevant to the prosecution of alleged Rome Statute crimes.
Here are several ways states can live up to their responsibilities to cooperate with the ICC:
- Designate focal points within state agencies and departments to improve channels of communication and coordinatino around ICC cooperation requests and needs;
- Train police, military forces, lawyers, judges, and prosecutors so that the ICC system of international justice is integrated among all relevant domestic authorities;
- Sign voluntary framework agreements - of which very few have been concluded - with the ICC to expedite state cooperation with requests related to:
- Witness relocation;
- Enforcement of sentences
- Interim release of defendants;
- Acquittal of suspects;
- Bring national legislation in line with the Rome Statute to facilitate better cooperation;
- Ratify the Agreement on Privileges and Immunities of the ICC, to ensure that ICC officials can conduct their work around the world safely and independently, while securing rights of the defense.
The Agreement on Privileges and Immunities of the ICC
Without certain privileges and immunities to officials and staff of the Court, it may be difficult, or even impossible, for the ICC to function independently and effectively.
In particular, the ability of Court personnel, investigators, and witnesses to travel and to transport and store evidence across and within national borders may be severely compromised. The Agreement on Privileges and Immunities of the ICC (APIC) is a separate treaty that regulates the privileges and immunities of the Court and the persons involved with the work of the Court, including states parties participating in proceedings. The APIC can also be ratified by non-ICC states parties.
The Coalition campaigns for universal ratification of the APIC so that the ICC can fully rely on states to respect the immunities and privileges of its staff and materials while it carries out its crucial work.
The Libyan example: Privileges and immunities contravened
In 2012, a Court-appointed defense lawyer and three ICC staff members traveling to meet with ICC suspect Saif-al-Islam Gaddafi were detained by a rebel militia in Zintan, Libya. The Libyan National Transitional Council alleged that the lawyer had passed unauthorized materials to Gaddafi in a direct threat to state security. Communications between counsel and client are protected by the Rome Statute.
Libya is neither party to the Rome Statute nor to the APIC. Had the country been party to (at least) the APIC, the rights of the ICC personnel assisting Gaddafi in Libya would have been legally clear.
APIC Article 18 explicitly lists the privileges and immunities of ICC defense teams, including immunity from detention, the inviolability of documents and communications relevant to representation, and immunity from legal processes related to acts performed in an official capacity.
