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Resolution 2134 (2016)
Co-operation with the International Criminal Court: towards a concrete and expanded commitment
1. The Parliamentary Assembly recalls
its previous resolutions calling for the ratification of the Rome Statute
of the International Criminal Court (ICC or “the Court”) and full
co-operation with the latter, as well as effective implementation
of the Rome Statute, in particular Resolution 1300 (2002) on risks
for the integrity of the Statute of the International Criminal Court, Resolution 1336 (2003) on
threats to the International Criminal Court and Resolution 1644 (2009) on
co-operation with the International Criminal Court (ICC) and its universality.
2. The Assembly reiterates its firm commitment to fight impunity
and to support the ICC, the first ever permanent independent judicial
institution with jurisdiction over individuals accused of “the most
serious crimes of concern to the international community as a whole”:
genocide, crimes against humanity and war crimes. It is the firm
conviction of the Assembly that there cannot be genuine respect
for, or true promotion and protection of human rights under the
European Convention on Human Rights (ETS No. 5) and the Universal
Declaration of Human Rights in situations in which there is impunity
for the most serious violations of international law – encompassing
gross human rights violations amounting to crimes against humanity
or genocide – and for the gravest breaches of international humanitarian
law amounting to war crimes. Similarly, impunity for the crime of
aggression – which characterises all the perpetrators of wars of
aggression that have taken place since the Second World War – is
certainly not conducive to the realisation of peaceful societies
in which fundamental human rights are respected.
3. The Assembly believes that the universal ratification of the
Rome Statute of the ICC is essential in order to avoid having situations
referred to the Court by the United Nations Security Council, as
these decisions might often succumb to double standards and politicisation.
It notes that, since its adoption in 1998, the Rome Statute has
been ratified by 124 States across the world. Regrettably, 6 member
States of the Council of Europe (Armenia, Azerbaijan, Monaco, the
Russian Federation, Turkey and Ukraine), 1 Council of Europe observer State
(the United States), 1 State with observer status with the Assembly
(Israel) and 2 States whose parliaments have partner for democracy
status with the Assembly (Kyrgyzstan and Morocco) have not yet ratified
it. The Assembly welcomes the changes to the Constitution of Ukraine,
finally adopted by the Ukrainian Parliament, by which the ratification
of the Rome Statute will be possible. At the same time, the Assembly
is concerned that these changes will come into effect only in three
years’ time, and not as soon as possible, as was recommended by
the Assembly.
4. The Assembly welcomes the fact that, in 2010, the States Parties
to the Rome Statute adopted two amendments to it (“Kampala amendments”)
– one criminalising the use of certain weapons in non-international armed
conflicts under the scope of the definition of “war crimes”, and
another introducing the definition of “crime of aggression” and
the system of exercise of jurisdiction over this crime by the ICC.
The Assembly notes that so far almost half of the Council of Europe’s
member States have ratified these amendments. Among the States that
are already Party to the Rome Statute, 17 States of the Council
of Europe (Albania, Bosnia and Herzegovina, Bulgaria, Denmark, France,
Greece, Hungary, Ireland, Italy, Republic of Moldova, Montenegro, Norway,
Portugal, Romania, Serbia, Sweden and United Kingdom), 3 Council
of Europe observer States (Canada, Japan and Mexico) and 1 State
whose parliament has partner for democracy status with the Assembly
(Jordan) have not yet ratified the Kampala amendment on the Crime
of Aggression. Moreover, among the States that are already Party
to the Rome Statute, so far 17 member States of the Council of Europe (Albania,
Bosnia and Herzegovina, Bulgaria, Denmark, France, Greece, Hungary,
Iceland, Ireland, Italy, the Republic of Moldova, Montenegro, Portugal,
Romania, Serbia, Sweden and the United Kingdom), 3 Council of Europe
observer States (Canada, Japan and Mexico), and 2 States whose parliaments
have partner for democracy status with the Assembly (Jordan and
Palestine) have not yet ratified the Kampala amendment on war crimes.
5. The Assembly also recalls the importance of ratifying the
Agreement on the Privileges and Immunities of the ICC, which facilitates
the Court’s independent operation by providing the Court officials
with the legal status necessary, as civil servants of an international
judicial institution, to conduct investigations efficiently, and
urges the States that have not yet done so to ratify or accede to
this treaty. So far, among the States that are already Parties to
the Rome Statute, 2 member States of the Council of Europe (the
Republic of Moldova and San Marino), 1 observer State (Japan), and
1 State whose parliament has partner for democracy status with the
Assembly (Jordan) have not acceded to this instrument.
6. The Assembly recalls that the ICC is based on the principle
of complementarity, assuming jurisdiction only as a last resort.
Therefore, the States Parties to the Rome Statute should adopt national
legislation to fully implement the Statute, especially by incorporating
the Rome Statute crimes and general principles of law into their
domestic criminal law systems. The Assembly urges the States that
have not done so to fully implement the Rome Statute. So far, among
the States that are already Party to the Rome Statute, 4 member
States of the Council of Europe (Albania, Hungary, Italy and San
Marino), and 2 States whose parliaments have partner for democracy
status with the Assembly (Jordan and Palestine) have not fully incorporated
those crimes and general principles of law into their domestic criminal
law systems.
7. The Assembly also stresses the importance of States’ co-operation
with the ICC in investigating and prosecuting crimes within its
jurisdiction, in particular as regards the arrest and surrender
of suspects or accused persons, the seizure of assets of crime and
the collection and preservation of evidence. In this regard, the
Assembly calls on the member States of the Council of Europe that
have not yet done so to establish in their national legislation
a mechanism to efficiently co-operate with the ICC, and to sign
the “voluntary cooperation agreements” with the ICC (on the enforcement
of sentences pronounced in the ICC’s judgments, interim and final
release, and the protection and relocation of witnesses). Among
the States that are already Party to the Rome Statute, so far 5
member States of the Council of Europe (Albania, Andorra, Hungary,
the Republic of Moldova and San Marino), 1 observer State (Mexico)
and 2 States whose parliaments have partner for democracy status
with the Assembly (Jordan and Palestine) have not established in
their national legislation a mechanism for efficient co-operation
with the ICC.
8. The Assembly recalls Resolution
2091 (2016) on foreign fighters in Syria and Iraq, and
the testimony of Nadia Murad, the 2016 recipient of the Václav Havel
Human Rights Prize. The Assembly reiterates its urgent call for
member States to fulfil their positive obligations under international
law to prevent the ongoing genocide in Syria and Iraq, and to ensure
the prosecution of those responsible for committing acts of genocide
and other serious war crimes against Yazidis, Christians and other
religious minorities in the region, especially where the perpetrators
are citizens of member States and/or arrive on European soil. The
Assembly deeply laments the fact that hardly any prosecution has
been brought against these perpetrators of genocide and crimes against humanity.
9. The Assembly welcomes the work of Parliamentarians for Global
Action, a non-profit, non-partisan international network of committed
legislators, which informs and mobilises parliamentarians in all
regions of the world to advocate human rights and the rule of law.
Through its Campaign for the Universality and Effectiveness of the
Rome Statute, it has contributed to 77 of the 124 ratifications
and provided technical assistance for full implementation of the
Rome Statute to several of its members. The Assembly also stresses the
decisive role played by civil society, in particular the Coalition
for the ICC, which gathers together some 2 500 NGOs from more than
150 countries, and which should be highly praised.
10. The Assembly notes with concern that the integrity and independence
of the ICC has recently been called into question by some member
States of the African Union. It considers that any attempt to undermine the
authority of the Court as an independent permanent international
judicial institution should be stopped.
11. The Assembly therefore urges the Council of Europe’s member
States, its observer States, Assembly observer States and States
whose parliaments have partner for democracy status with the Assembly
to reaffirm their commitment to the ICC by:
11.1. signing and ratifying without further delay the Rome Statute,
the Kampala amendments and the Agreement on the Privileges and Immunities
of the ICC, if they have not yet done so;
11.2. adopting effective legislation to implement the Rome Statute,
in particular by introducing the crimes and general principles of
law defined therein into their domestic criminal legislation and establishing
procedures allowing full and effective co-operation with the Court;
11.3. fully co-operating with the ICC and providing judicial
assistance to it, in line with the obligations stemming from the
Rome Statute, for example by appointing a special focal point for
co-operation with the ICC;
11.4. concluding co-operation agreements with the Court to facilitate
the investigation and prosecution of crimes within its jurisdiction,
as well as the enforcement of the sentences pronounced in its judgments, the
protection and relocation of witnesses and the interim and final
release of persons;
11.5. providing mutual legal assistance in matters falling within
the scope of the Rome Statute;
11.6. providing the ICC with effective budgetary resources in
order to allow it to fulfil its tasks in an independent and efficient
manner while respecting the autonomy of the Office of the Prosecutor
in determining the situations that deserve investigation and prosecution
under the Rome Statute and avoiding interference with its mandate
through budgetary policies;
11.7. organising training for judges, prosecutors, lawyers and
members of police and armed forces on issues related to the implementation
of the Rome Statute;
11.8. organising seminars and conferences with members of parliament
in collaboration with parliamentary networks, such as Parliamentarians
for Global Action, in order to generate awareness and political
will, and to provide the national parliamentarians and their staff
with the necessary tools to advance the process of ratification
of the Rome Statute, the Kampala amendments and the Agreement on
the Privileges and Immunities of the ICC, and the full
implementation of these international treaties;
11.9. taking necessary awareness-raising measures to promote
knowledge about the ICC among the general public;
11.10. providing political and financial support to non-governmental
organisations combating impunity, promoting the universality and
effectiveness of the Rome Statute system and the compliance of States with
the Rome Statute obligations, and which provide assistance to victims
of the most serious crimes of international concern;
11.11. taking any other action to protect the integrity and the
independence of the ICC, especially in respect of policies of other
regional organisations, such as the African Union;
11.12. making meaningful financial contributions to the ICC’s
Trust Fund for Victims, thereby signalling that the ICC is not only
delivering retributive and preventative justice, but also restorative
justice.
12. The Assembly welcomes the referral of situations such as those
in Darfur (Sudan) or Libya, by the United Nations Security Council
to the ICC. It regrets that the situations in Syria and Iraq have
not yet been referred to the ICC by the United Nations Security
Council. It calls on the United Nations Security Council to fulfil
its responsibilities to implement the decisions and orders of the
Court and to provide it with sufficient financial resources to fulfil
its tasks.
13. The Assembly calls on member States and observer States who
are members of the United Nations Security Council, namely Russia,
the United Kingdom, France, the United States, Spain, Ukraine and
Japan, to collaborate and, within two months, to put a resolution
to the United Nations Security Council which ensures the effective
prosecution of those responsible for acts of genocide, crimes against
humanity and war crimes in Syria and Iraq.
14. The Assembly also calls on the ICC Prosecutor to reconsider
her decision of April 2015 not to initiate preliminary examinations
into crimes committed by Daesh foreign fighters, in the light of
new and overwhelming evidence available to her, and to expeditiously
recognise her jurisdiction over the perpetrators of genocide, crimes
against humanity and war crimes in Syria and Iraq, to the greatest
extent possible.