ASP 2017: State cooperation crucial for an effective ICC
Cooperation
Cooperation must be multi-faceted to enable the effective execution of various ICC functions, and collectively geared at bringing those most responsible for core international crimes to justice. With no enforcement mechanism of its own, the ICC is largely dependent on the cooperation it receives from states, the United Nations, regional organizations, and other relevant actors.
Part IX of the Rome Statute lays out the various ways in which states are to cooperate with the ICC. Without this support international justice simply cannot work, which is why the Coalition closely monitors developments and initiatives of the Bureau and the ICC alike in areas of cooperation throughout the year leading up to the annual ASP session.
In 2017, a combination of The Hague Working Group (HWG) facilitations and technical and political seminars established the focus areas for ASP discussions on cooperation during the annual session.
Hague Working Group: Facilitation on cooperation in 2017
Over the course of 2017, and under the facilitation of Ambassadors Philippe André Lalliot (France) and Momar Diop (Senegal), the HWG discussed cooperation agreements and the feasibility of establishing a coordinating mechanism for national authorities dealing with cooperation, culminating in a series of technical working seminars on cooperation in financial assets recovery with high-level political discussions in Paris on 20 October 2017.
Cooperation around financial investigations
In 2007, the Assembly adopted the 66 Recommendations on cooperation, an extensive list of key challenges and priorities for cooperation. In the years since, the ASP has narrowed the list to seven priority recommendations as most relevant to the Court’s current cooperation demands. Cooperation in the recovery of financial assets is one of these seven priorities.
While technical seminars dealt with the practicalities and legalities of state cooperation with the ICC under Part IX of the Rome Statute in the identification, tracing, and freezing or seizure of proceeds, property, and assets, the HWG cooperation co-facilitators steered discussions on the draft “Paris Declaration on Cooperation in Asset Recovery” to their culmination at the 20 October 2017 Paris Conference. Intended to lead to a model framework for politically committed States Parties, consultations in 2017 around cooperation in financial assets recovery will reach their conclusion during the 16th ASP session, where the plenary may approve a set of non-binding recommendations and actions for both States Parties and the ICC.
Throughout the HWG consultations, States Parties were encouraged by Court officials and the co-facilitators to consider legislation favoring increased cooperation with the Court and to conduct investigations of related financial crimes, particularly in view of legal aid burdens associated with indigent defendants.
Voluntary cooperation
The Court routinely calls upon States Parties to supplement their explicit Rome Statute obligations with forms of voluntary cooperation, which prove crucial to the ICC’s functioning as a fair and effective legal institution that gives effect to not only rights of victims and witnesses, but also those of the accused. The Court issued this call again in 2017.
The Court has voluntary framework agreements to facilitate States Parties’ capacities to accommodate ICC requests, when necessary, in relation to witness relocation and protection, hosting released persons (defendants), and enforcing ICC sentences. In 2017 the ICC Registry published an updated handbook outlining the framework agreements currently available and clarifing misconceptions about any obligations they may create for States Parties.
In recalling the low number of concluded voluntary framework agreements thus far, ICC officials have highlighted that such agreements reduce burdens on not only the Court’s activities, but also its budget as a result. The Court has also noted the value of Memoranda of Understanding between the ICC and international organizations, such as the UNODC, with respect to capacity-building to enable the envisioned forms of cooperation.
With framework agreements, states agree to engage with the Court to develop cooperative frameworks amenable to the requirements of both parties—before any specific ICC request for cooperation arrives. Such engagement allows gradual domestic capacity building, thus satisfying international human rights norms while leaving states the option to decline formal requests.
To supplement the Court’s awareness-raising work, in 2017 the HWG heard from delegations like Sweden present on their positive experiences in negotiating and concluding such agreements. For Sweden, this has involved incorporating the relocation of ICC witnesses framework into both its resettlement program and its Aliens Act.
The number of cooperation agreements concluded as of September 2017: 10 framework enforcement of sentence agreements; a further two ad hoc enforcement of sentence agreements, with the Democratic Republic of the Congo in relation to sentences of Thomas Lubanga and Germain Katanga; 18 relocation of witness agreements; one interim release agreement, with Belgium; and no agreements on hosting persons in the event of final release.
STATE SUPPORT IN THE ICC SYSTEM
Coordinating mechanism of national authorities
In line with previous years’ discussions, the HWG facilitation on cooperation in 2017 once considered the feasibility of establishing a coordinating mechanism of national authorities – an initiative aimed at cooperation among states in the successful investigation and prosecution of crimes within and related to the subject matter jurisdiction of the ICC.
As envisioned by members of the HWG, the proposed mechanism would be open to States Parties and non-states parties alike; it would be voluntary; issues of non-cooperation would remain outside its ambit; and any exchange of information through the mechanism would occur without prejudicing confidentiality interests.
The majority of the mechanism’s State Party proponents agree that the proposed mechanism would be autonomous from the ICC and ASP, including with respect to its budget.
In related initiatives, officials and focal points from States Parties with situations currently under investigation by the ICC convened in The Hague in September 2017 to exchange experiences and best practices in areas of cooperation. The seminar was also attended by non-situation country representatives.
During the seminar, discussions between the Court and focal points nominated by States Parties to direct communications with national authorities saw participants highlight the importance of inter-state cooperation in closing the impunity gap for grave international crimes
Agreement on Privileges and Immunities of the ICC (APIC)
The Agreement on Privileges and Immunities of the International Criminal Court (APIC), an international treaty designed to facilitate ICC and ICC member state personnel in their related work, is an essential part of the legal framework envisioned to guarantee the ICC the state cooperation it needs to operate as a fully independent and effective judicial institution.
Universal ratification and implementation of the APIC are key to the effective functioning of the Court and the international justice system as a whole, giving the ICC the access and cooperation it needs to work toward justice for victims of genocide, crimes against humanity, and war crimes.
The APIC, which elaborates cooperation provisions in Article 48 of the Rome Statute, leaves little room for doubt. The treaty covers not only privileges and immunities that states should extend to Court officials, materials, transactions, and communications within the scope of official ICC work, but also the privileges and immunities that defense teams, witnesses, victims, experts, and a range of other participants in ICC proceedings should enjoy. These include states’ representatives.
At the initiative of the Belgian government, states organized an APIC ratification pledging ceremony at the Assembly of States Parties (ASP) session in November 2016. The purpose of this was for states to make official pledges to ratify the APIC by the 20th anniversary of the Rome Statute in 2018. During the ceremony, Australia, El Salvador, and Peru made official pledges to ratify the APIC before the 20th anniversary of the ICC. As part of its current campaign, the Coalition calls on governments to follow the example of Peru, which became the 76th state to join the treaty in January 2017, and the Republic of Moldova, which followed as the 77th in May, with Australia and El Salvador also in sight following the pledges made during the 2016 session.
In the year leading up to the Rome Statute 20th anniversary celebrations on 17 July 2018, by signing the APIC, over 110 governments have a chance to demonstrate their full commitment to an international justice system that will continue to expand its reach over the next 20 years and beyond.
16th ASP session: Special plenary on cooperation in financial asset recovery
The 16th ASP session will feature a special plenary meeting dedicated to the topic of cooperation in asset recovery, with panel presentations expected by key stakeholders and proponents of the ICC-ASP initiative. Informal consultations will serve as a further opportunity for States Parties to inform, and observers like civil society to track, negotiations leading to a possible adoption of the “Paris Declaration on Cooperation in Asset Recovery” by the ASP plenary.
These consultations will also address any outstanding discussions prior to the adoption of the draft ASP cooperation resolution and draft Bureau report on cooperation, both prepared by the HWG.
Non-Cooperation
The lack of cooperation from states is one of the great challenges the Court faces in its work. In an effort to address this challenge, the ASP Bureau was tasked in 2017 with appointing five non-cooperation focal points, one for each regional group, in accordance with the Assembly procedures on non-cooperation. Australia, the Czech Republic, Japan, Peru, and Senegal make up the five current regional focal points.
The non-cooperation focal points actively engage with relevant stakeholders including civil society on issues related to non-cooperation, such as travel by persons subject to an arrest warrant issued by the Court, as well as diplomatic actions taken by States Parties with respect to such travel. In 2016, the focal points developed a toolkit (Toolkit for the implementation of the informal dimension of the Assembly procedures relating to non-cooperation) as a resource for States Parties to utilize when responding to potential instances of non-cooperation.
Non-cooperation in the Darfur, Sudan investigation
Over the past several years, the situation in Darfur, Sudan has been particularly affected by instances of non-cooperation. ICC judges have already made several findings of non-cooperation in the case against Sudanese President Omar al-Bashir, in each instance related to the non-arrest of al-Bashir.
Discussions and activities around non-cooperation in 2017 once again revolved around failures to execute al-Bashir’s 2009/2010 ICC arrest warrant, following judicial findings in July 2016 of non-cooperation by Djibouti and Uganda in the same regard. ICC judges referred both the Djibouti and Uganda matters to the ASP at the time.
Meanwhile, the case of South Africa’s failure to arrest al-Bashir—when he visited the country in June 2015 to attend an African Union summit—came before ICC judges in April 2017. The public hearing in The Hague followed two years of domestic litigation, petitioned by the Southern Africa Litigation Centre (SALC), in which both the Pretoria High Court and South Africa’s Supreme Court of Appeal found the government’s conduct unlawful due to its Rome Statute membership, its domestic ICC Act, and the Statute’s cornerstone provision on the irrelevance of official capacity. During those same two years, both ICC judges and the ASP Bureau separately entertained South Africa’s submissions that it had not been properly consulted according to Rome Statute article 97 when the arrest and surrender cooperation request was made.
In July 2017, ICC judges confirmed that the government of South Africa failed to comply with its obligations as a Rome Statute State Party. Diverging from the precedent set by prior non-cooperation findings, judges did not consider a referral of the matter to the ASP useful in obtaining cooperation from South Africa. Furthermore, the judges decided against a referral to the UN Security Council, citing concerns over the lack of any effective follow-up in numerous past instances where the Court did refer matters of non-compliance to the Security Council.
In January 2017, the ICC Registry became aware of an invitation by the Hashemite Kingdom of Jordan for al-Bashir to attend the 28th Arab League Summit in March. The Registry sent a note verbale to Rome Statute State Party Jordan renewing the request to cooperate with the arrest and surrender of al-Bashir should he enter Jordanian territory. In response, Jordan transmitted two note verbales in late March notifying of the government’s adherence to its international obligations; confirming al-Bashir’s attendance at the upcoming summit; and initiating article 97 consultations with the Court with respect to the cooperation request. Following al-Bashir’s subsequent travel to Jordan, and non-arrest, ICC Pre-Trial Chamber II decided that the visit warranted a determination on the appropriateness of making a formal finding on non-compliance, inviting Jordan to provide further submissions on the matter.
The Court has since requested follow-up submissions4 from the government of Jordan, including with respect to applicable sources of law that the government has cited in defense of its non-action with respect to al-Bashir. Such sources include the 1953 Convention on the Privileges and Immunities of the Arab League, which Jordan acceded to on 12 December 1953.
Bureau discussions on Rome Statute Article 97
Rome Statute Article 97 obliges ICC member states to consult with the Court if a problem is identified that could potentially impede or prevent the execution of an ICC request, such as a request to arrest and surrender an ICC suspect.
As set out in the paragraph above, President al-Bashir attended an AU summit hosted by South Africa in Johannesburg in 2015. Despite ICC requests, as well as domestic court orders to execute the ICC arrest warrant against al-Bashir, petitioned by local civil society, South African authorities allowed him to make an exit back to Sudan.
During the domestic proceedings on the failure to arrest al-Bashir during the AU summit, the South African government claimed head-of-state immunity under customary international law is in conflict with its Rome Statute obligations. It has also argued that it was not properly consulted at the time of the ICC requests to arrest and surrender al-Bashir.
The 14th ASP session in 2015 featured, at South Africa’s request, a special plenary session to discuss the process by which States Parties consult with the Court under Article 97 of the Rome Statute. The Article 97 discussions were conducted in the context of Article 98 of the Rome Statute (“Cooperation with respect to waiver of immunity and consent to surrender”) and the fundamental Rome Statute prohibition against head-of-state or official immunity (Article 27).
“Where a State Party receives a request under [Part IX of the Rome Statute] in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter.” (Rome Statute, Article 97)
The ASP heard South Africa’s concerns at its annual session in 2015 and mandated the Bureau to establish a working group to further discuss and examine the application of Article 97 of the Rome Statute, in close consultation with the Court. After three meetings in 2016, States Parties agreed that further discussion on the issue was warranted, including consideration of the South African proposal to adopt new rules on the implementation of Article 97 consultations.
The discussions in 2017 in the Working Group on the implementation of article 97 continued to be led byAmbassador María Teresa Infante Caffi (Chile) and take place in The Hague. A drafting group was established to elaborate a text on the implementation of article 97, with Ambassador Sabine Nölke (Canada) as its Chairperson. The result of the drafting group’s work and further negotiations within the Working Group on the implementation of article 97 resulted in an “Understanding with respect to article 97(c) consultations” that will be adopted at the 16th ASP session.
