Doc. 9844

24 June 2003

Threats to the International Criminal Court

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Dick Marty, Switzerland, Liberal, Democratic and Reformers' Group

Summary

The Parliamentary Assembly has supported from the beginning the creation of the International Criminal Court in The Hague. In its Resolution 1300 (2002), the Assembly spoke up against threats to the Court’s integrity posed by pressures exercised by the United States on member countries of the Council of Europe to enter into bilateral immunity agreements. The present draft resolution constitutes a follow-up of Resolution 1300, also in light of increased pressures over the last months and weeks, and addresses some additional concerns that materialised since last year. These concern mainly the renewal of UN Security Council Resolution 1422, and delays with regard to the necessary national implementing legislation, and the ratification of the agreement on privileges and immunities.

  

 

 

1.        The Parliamentary Assembly recalls its Resolution 1300 (2002), which refers to the risks for the integrity of the Statute of the International Criminal court posed by bilateral agreements granting immunity.

 

2.        It welcomes the entry into operation of the Court following the elections to its most important organs – the judges, the President, and the prosecutor - in February and April 2003. It considers that the ICC is poised to become a truly independent and impartial arbiter of international justice and the rule of law at the international level, whose importance cannot be underestimated in the current international situation.

 

3.        However, it continues to be concerned that certain Council of Europe member and observer states have still not acceded to the Rome Statute of the International Criminal Court or have not yet ratified it, and that the United States has even officially announced that it would not ratify .

 

4.        It is also concerned that only 29 countries have so far signed, and only two countries (Norway and Costa Rica) ratified the Protocol on Privileges and Immunities of the International Criminal Court. The Assembly recognizes that despite its politically unseemly title, this Protocol is of vital importance for the Court to begin functioning in practice.

 

5.        The Parliamentary Assembly further recalls the importance of national implementing legislation, which is unfortunately lagging behind in many countries. The implementing legislation is required to put into practice the “double subsidiarity” of the ICC: firstly the Court, which does not have its own investigative machinery, was designed to rely heavily on the practical cooperation of the State Parties. Secondly, the State Parties must also make sure that their national substantive criminal law is compatible with the Rome Statute so that they are in a position to fulfil their obligation under the Rome Statute to prosecute such crimes themselves, the ICC only coming into play when the national courts are unable or unwilling to prosecute. In this context, the Assembly welcomes the initiative announced by the Committee of Ministers in its reply to Recommendation 1581 (2002) to consider convening a third Multilateral Consultation, in September 2003, on the implications of the ratification of the Rome Statute in the domestic legal order of member States. The Assembly intends to accept any invitation extended by the Committee of Ministers to participate in this consultation.

6.        The Assembly regrets the renewal, as decided on 12 June 2003, of Security Council Resolution 1422 (adopted on 12 July 2002). This Resolution had deferred for a renewable 12 months any prosecution by the International Criminal Court of those suspected of offences committed in connection with a United Nations authorised operation who are nationals of states that are not parties to the Statute. It commends those countries which insisted that an open debate was held in the Security Council and that the exemption was again limited to one year.

 

7.        It considers that Resolution 1422 and its renewal constitutes a legally questionable and politically damaging interference with the functioning of the International Criminal Court. Its independence from the UN Security Council, with regard to the opening of procedures against persons suspected of international crimes, is one of the most important advances in the Rome Statute. Resolution 1422 is legally questionable for two reasons: firstly, it is ultra vires in that the legal basis for a Security Council Resolution under Chapter VII of the UN Charter – a present threat to international peace and security – was not present. Secondly, Resolution 1422 violates the Rome Statute (Articles 16 and 27). The Assembly considers that Article 16 does not cover blanket immunity in relation to unknown, future situations. It further recalls that Article 27 of the Rome Statute expressly prohibits making distinctions on the basis of official capacity in order to ensure that no person is above the law. The Assembly considers that this should also apply to UN peacekeepers, independently from their nationality.

 

8.        The Assembly regrets the ongoing campaign by the United States to convince State Parties to the Rome Statute, including member states of the Council of Europe, to enter into bilateral agreements aimed at subjecting these states’ cooperation with the ICC, as regards United States citizens accused of crimes giving rise to the jurisdiction of the ICC, to prior agreement by the United States government.

9.        The Assembly considers such agreements to be violations of the Rome Statute of the ICC (in particular Articles 27 and 86, Article 98 (2) allowing only narrowly defined exemptions in the framework of status of force agreements), and of the Vienna Convention on the Law of Treaties (Article 18), according to which states must refrain from any action which would not be consistent with the object and purpose of a treaty.

 

10.        The Assembly condemns the pressures exercised on a number of member states of the Council of Europe to enter into such agreements and regrets that the contradictory demands made on them by the United States on the one side and the European Union and the Council of Europe on the other confronts them with a false choice between European and transatlantic solidarity. The Assembly considers that all countries should be left free to decide on their stance towards the International Criminal Court on the basis of considerations of principle alone.

11.        The Assembly considers that it is possible for bilateral exemption agreements to be construed narrowly, such as to subject the refusal to cooperate with the ICC to strict conditions, in particular the credible assurance of national prosecution of persons suspected of ICC crimes by the United States themselves.

12.        The Assembly therefore,

 

i.       as regards the signature, ratification and implementation process:

 

ii.       as regards Security Council Resolution 1422 (2002) / 1487 (2003):

iii.       as regards bilateral immunity agreements:

II. Explanatory memorandum

by Mr Marty, Rapporteur

 

A.       Introduction

 

1.        From the very beginning of the negotiations leading to the inception of the International Criminal Court (ICC), the Parliamentary Assembly of the Council of Europe has established a world-renowned tradition of unfailing support for the initiative. The Assembly last confirmed this support - in the face of certain threats that began materialising at that time - in its Resolution 1300 (2002). The present Report is intended as a follow-up to that Resolution, to maintain the political momentum in favour of international criminal justice and to react to fresh threats to the ICC. It also constitutes a response to the concrete calls for support voiced in the spring of 2003 by the newly elected President of the Court, Philippe Kirsch, and by a number of non-governmental organisations which have been associated with the process of establishing the Court (e.g. the Coalition for the International Criminal Court, Parliamentarians for Global Action, Human Rights Watch, Amnesty International).

 

2.        Democratic states, such as the member States of the Council of Europe as well as its Observers, should be the most ardent supporters of the Court, which represents an expression of their commitment to promote the universal values of human rights, international humanitarian law and the rule of law. The Court is, and must remain, a supreme body of international justice and must not be subject to political pressures or be used for political purposes.

 

3.        Given that certain states are still reluctant to join the ranks of supporters of the ICC, it is worth recalling the safeguards included in the ICC Treaty to avoid political abuses of the Court:

 

 

4.        An additional guarantee – and maybe the most important - that can be observed since the election of the first group of judges and the chief prosecutor is the exceptional moral and professional standing of the persons to whom these responsibilities have been entrusted by the Assembly of State Parties.

 

B.       Reminder of Resolution 1300 (2002) – update and follow-up

 

i.       Progress towards the start of the ICC’s operational activities

 

5.        The 2002 report warmly welcomed the entry into force on 1 July 2002 of the Rome Statute of the International Criminal Court (ICC), which represented a decisive step towards achieving justice and ending impunity for the most serious crimes known to mankind: war crimes, crimes against humanity and genocide. It also welcomed the holding of the first meeting of the Assembly of State Parties (ASP) in New York in September 2002, which laid the foundations for the effective establishment of the Court.

6.        There has in addition been the following substantial progress towards the start of the ICC’s operational activities, which can be welcomed wholeheartedly:

ii.       Accession to and ratification of the Rome Statute

 

7.       The 2002 report regretted that some states, including member and observer States of the Council of Europe, had not yet acceded to the ICC Treaty or declared that they did not intend to become party to it.

 

8.        Since then, seven more countries, including Albania, Lithuania and Malta, have ratified the ICC Treaty, thus responding to the appeal in paragraph 14 i. b. of Resolution 1300. A further effort is now required to make the ICC truly universal, and representative on a world-wide level. Participation by the member States of the Council of Europe is above the global average, but not yet complete: Azerbaijan and Turkey have yet to adhere to the Rome Statute, and Armenia, the Czech Republic, Georgia, Moldova, the Russian Federation and Ukraine have yet to ratify it.

 

9.        The Assembly has repeatedly expressed its hope that the United States of America would join the majority of democratic states in their support for the ICC. This hope has unfortunately still not come true. On the contrary, the United States has informed the Court that it does not intend becoming a party to the Statute and that it does not consider itself under any legal obligations as a result of its signature of the Statute. Furthermore, it has recently stepped up its campaign to induce State Parties to conclude bilateral exemption agreements, thereby undermining the integrity of the Rome Statute, and last week obtained a renewal of UN Security Council Resolution 1422 (see below). But the signature and ratification of the Rome Statute by an ever growing number of democratic states, and the imminent commencement of the Court’s operations aimed at prosecuting the most heinous crimes against humanity may strengthen those forces in the United States that wish to see their country, which has always taken great pride in being a bulwark of freedom and democracy, reconsider its position.

 

10.        I still believe that solutions to this situation can be found through constructive dialogue, whilst unilateral steps can only harm such a dialogue. As I said last year, such unilateral steps can be found in certain provisions of the recently enacted American Servicemembers’ Protection Act (ASPA), which prohibit US cooperation with the Court, restrict US participation in United Nations peacekeeping operations and prohibit, with some exemptions (NATO members, for example, as well as some other US allies) military assistance to countries which ratify the ICC Treaty. The ASPA also authorised the US President to use all necessary and appropriate means to free from captivity any US or allied personnel held by or on behalf of the Court (the ASPA was therefore nicknamed by some NGO’s as the “Hague Invasion Act”).

  

iii.       Bilateral immunity agreements

 

11.        The Assembly, in 2002, was greatly concerned by the efforts of some states to undermine the integrity of the ICC Treaty and especially to conclude bilateral agreements aiming at exempting their officials, military personnel and nationals from the jurisdiction of the Court (“bilateral exemption agreements”). The United States argues that a legal basis for such agreements lies in Article 98 (2) of the Rome Statute. But many legal experts, including those involved in the drafting of the ICC Treaty, claim that Article 98 (2) was designed to prevent conflicts that might arise because of already existing agreements. These would mainly be so-called “Status of Forces Agreements” which provide for the allocation of jurisdiction between the sending state (whose forces are stationed in another state) and the receiving state. Article 98 (2) was certainly not meant to incite states to conclude agreements preventing the Court from exercising its jurisdiction.

 

12.        The Assembly considered in Resolution 1300 (paragraph 10.) that these bilateral exemption agreements are inadmissible under the international law governing treaties, in particular the Vienna Convention on the Law of Treaties (Article 18), according to which states must refrain from any action which would not be consistent with the object and the purpose of a treaty. The object and the purpose of the ICC Treaty is to bring to justice those responsible for the most serious crimes against humanity, without regard to their nationality. Accordingly, agreements which would prevent the Court from exercising its complementary function are against the object and the purpose of the ICC Treaty. Also, according to Article 86 of the ICC Treaty, State Parties have the general obligation to cooperate fully with the Court in its investigation and prosecution of crimes within its jurisdiction (Article 86 of the ICC Treaty). Article 27 of the Treaty specifies that “this statute shall apply equally to all persons without any distinction based on official capacity.”

 

13.        Accordingly, the Assembly called on Council of Europe member and observer States not to enter into any “bilateral exemption agreements” which would compromise or limit in any way their cooperation with the Court. The Assembly also welcomed the fact that all members of the European Union had signed and ratified the ICC treaty and encouraged the European Union to adopt a joint position on the issue of the exemption agreements as soon as possible, along the lines of the present resolution.

 

14.        In its Recommendation 1581 (2002) (adopted together with Resolution 1300), the Assembly had invited the Committee of Ministers to adopt a joint position on behalf of Council of Europe member States on the issue of bilateral “exemption agreements”, again along the lines of Resolution 1300.

 

15.        Unfortunately, pressures exercised by the United States on this issue have increased since the adoption of Resolution 1300, and have met with some success, including among Council of Europe member countries. In fact, Albania, Azerbaijan, Bosnia-Herzegovina, Georgia and Romania have now signed bilateral immunity agreements with the United States, and Albania, Bosnia-Herzegovina and Georgia have gone so far as to ratify them.

 

16.        With regard to the common position which the Assembly invited the European Union to adopt, at the Foreign Ministers’ meeting of 30 September 2002 the Council of the European Community adopted Conclusions on the International Criminal Court, which introduce the “EU Guiding Principles concerning Arrangements between a State Party to the Rome Statute of the International Criminal court and the United States Regarding the Conditions to Surrender of Persons to the Court”.

 

17.        These take into account some, but not all of the concerns expressed by the Assembly in Resolution 1300 (2002). The Council confirmed that the EU remained “firmly committed […] to preserve the full integrity of the Rome Statute […] and to support the ICC as a valuable instrument of the world community to combat impunity for the most serious international crimes.” The Council aptly “recalls that the European Union and the United States fully share the objective of individual accountability for the most serious crimes of concern to the international community.” At the same time, the EU Foreign Ministers noted that “entering into US agreements – as presently drafted – would be inconsistent with ICC States Parties’ obligations with regard to the ICC Statute”. The EU Guiding Principles provide for “benchmarks”, however, which, if respected, would in the eyes of the Council of the European Community legitimise entry into such an agreement One of the Principles reads: “No impunity: any solution should include appropriate operative provisions ensuring that persons who have committed crimes falling within the jurisdiction of the Court do not enjoy impunity. Such provisions should ensure appropriate investigation and – where there is sufficient evidence – prosecution by national jurisdictions concerning persons requested by the ICC”. Other principles attempt to limit the scope of bilateral agreements by reference to the wording of Article 98 of the Rome Statute, recommend the inclusion of a “sunset clause” limiting the period in which the arrangement may remain in force, and recall the requirement of ratification of any such agreements, in accordance with the constitutions of the countries concerned.

 

18.        The EU Guiding Principles are clearly the result of a political compromise between divergent diplomatic forces within the EU, and aimed at encouraging the United States to reconsider its position vis-à-vis the ICC, an aim that your Rapporteur fully shares.

 

19.        Nevertheless, the EU Guiding Principles have met with some criticism from NGO’s for not being more assertive in their rejection of any bilateral immunity agreements. Amnesty International, in particular, in a detailed analysis of the EU position, regretted that the EU did not take a more principled stance and noted that the conciliatory message from the EU Council was not subsequently met by the United States side with a moderation of its campaign. More recently, the ACP-EU Joint Parliamentary Assembly, at its session in Brazzaville in March/April 2003, adopted a much more strongly worded Resolution which went so far as to consider that ratifying such an agreement is incompatible with membership of or association with the EU or the ACP-EU Joint Parliamentary Assembly (paragraph 8).

 

20.        In fact, recent statements by EU spokespersons regarding the agreements signed by Bosnia and Herzegovina and Albania show a certain amount of frustration within the European Union concerning the pressure that European countries are subjected to with regard to these agreements, which do not appear to fall within the EU’s above-mentioned guidelines.

21.        According to the new Common Position on the ICC adopted by the EU General Affairs and External Relations Council on 16 June 2003 (Article 5 paragraph 2.), the Union and its Member States “shall continue, as appropriate, to draw the attention of third States to the Council Conclusions of 30 September 2002 on the International Criminal Court and to the EU Guiding Principles annexed thereto, with regard to proposals for agreements or arrangements concerning conditions for the surrender of persons to the Court”.1

 

22.        The President of the Assembly, Mr Peter Schieder, speaking on 21 May 2003 at the 4th Parliamentary Conference on the Stability Pact for South-Eastern Europe, organised by the European Parliament in Brussels, condemned the pressure put on several states in South-Eastern Europe to sign bilateral immunity agreements which undermined the integrity of the International Criminal Court.

23.        He noted that virtually all countries in the region are concerned, with the exception of those joining the European Union next year. The latter group’s links to Brussels appeared to offer some protection against US pressure, while others with less imminent prospects of membership were more or less left on their own. 

24.        He called for full political support and additional assistance for all the countries in the region, so as to allow them to decide freely on the issue, and appealed to his colleagues in the European Parliament to call for a clearer and firmer position of EU governments on this issue.

25.        Your Rapporteur fully subscribes to President Schieder’s statement that Europe and America owe it to the people of South-Eastern Europe, who have just emerged from a decade of war with its toll of destruction and human suffering, to resolve their disagreements and reject a false choice between the stability of the region and the integrity of the Court Efforts to undermine the authority of the ICC, whilst pushing the same countries to cooperate fully with the International Criminal Tribunal for Yugoslavia (ICTY), send a confusing signal.

26.        The Committee of Ministers, in its reply to Recommendation 1581 adopted on 19 June 2003,

27.        In my view, this reply is open to conflicting interpretations: in view of the statement that such agreements may only be acceptable if they respect the letter, object and purpose of the Statute, I should like to refer to my arguments presented above in which I explain why any such agreements do indeed run afoul of the letter, object and purpose of the Statute. But the reference to the somewhat more flexible EU Guidelines (above) may be exploited by those who wish to justify the conclusion of such agreements. Nevertheless, a careful reading of the EU Guidelines shows that the agreements recently signed by some member countries fall short of the requirements laid down therein, and they must therefore also be unacceptable within the meaning of the formula adopted by the Committee of Ministers.

iv.       Immunity of members of UN Peacekeeping missions

 

28.        In Resolution 1300 (paragraph 13), the Assembly also expressed its concern that the link made by some countries between the jurisdiction of the Court and the renewal of the United Nations Security Council mandates for peacekeeping operations could put at risk the whole system of United Nations peacekeeping.

 

29.        This was a reference to UN Security Council Resolution 1422 (2002), which requests the International Criminal Court to refrain from prosecuting crimes under international law committed in connection with peacekeeping and other operations authorised by the UN Security Council. In fact, in June 2002, the United States threatened to veto in the Security Council all UN peacekeeping operations unless the nationals of non-State parties to the ICC Statute obtained a permanent exemption from ICC prosecution. The compromise found - after a month of arduous negotiations - was Resolution 14222. In my view, Resolution 1422 is a legal anomaly for an array of reasons:

 

30.        Firstly, its adoption by the UN Security Council, on the basis of Chapter VII of the UN Statute, was ultra vires in the absence of a threat to international peace and security. The argument put forward to justify the presence of such a threat is rather unusual: the threat by the United States to veto any peace-keeping missions, thereby disabling in advance the Security Council’s most credible instrument to protect international peace and security, constitutes in itself the “threat to peace and security” that is required to empower the Security Council to give the United States the Resolution they demanded. It seems odd that the United States’ own action – the announcement to veto future peacekeeping missions, which was seen as constituting such a threat - effectively became the basis for granting the United States the desired Resolution. The habitual reaction of the UN Security Council faced with a threat to international peace and security is to consider sanctions against the country which is the author of the threat, and not to grant its desire. 

31.        The Canadian Ambassador to the United Nations, Paul Heinbecker, summed up the situation rather aptly in his address to the Security Council on 10 July 2002:

 

 

32.        Any ultra vires interference by the UN Security Council with the International Criminal Court is particularly regrettable, because it is one of the hard-won and widely acclaimed advances of the Rome Statute that no prior authorisation by the Security Council is required in order for the ICC to prosecute those suspected of international crimes.

 

33.        Secondly, Resolution 1422 is also in contradiction with Articles 16 and 27 of the Rome Statute.

 

34.        Article 16 reads:

 

 

35.        This Article establishes a mechanism to defer investigations or prosecutions on a case-by-case basis. It pre-supposes the existence of a particular “investigation” or “prosecution”. This results from Article 15 of the Rome Statute, which foresees that the Pre-Trial Chamber must authorise the commencement of a specific “investigation”. Up to this point, inquiries by the prosecutor are merely “preliminary investigations” (Article 15 (6)). The Security Council is therefore empowered to request a deferral, under Article 16, only after the authorisation of an “investigation” by the Pre-Trial Chamber. To sum up this argument, Article 16 is designed as a response to specific ICC proceedings and was not intended to sanction blanket immunity in relation to unknown, future events. This reading of Article 16 is also the most consistent with an important acquis of the Rome Statute: that the Court’s investigations and prosecutions are not subject to prior Security Council approval.

 

36.        Article 27 of the Rome Statute expressly prohibits making distinctions on the basis of official capacity, an expression of the fundamental principle that no person is above the law. There is no reason to exclude UN peacekeepers from this principle. Whilst these persons should presumably not in the highest risk category, they are fallible human beings for whom it cannot be said a priori that they can never become authors of war crimes.3 

37.        It is therefore most regrettable that the Security Council extended Resolution 1422 by another year at its meeting of 12 June 2003 (Resolution 1487), with only three countries (France, Germany and Syria) abstaining.

38.        Some positive elements are, however, worth mentioning : a number of countries (including Switzerland and Canada) had requested an open debate in the Security Council, and had clearly expressed their principled positions. The renewal of Resolution 1422, now known as Resolution 1487, did not become, as had been feared by some and hoped by others, an automatic rollover or a mere formality.

39.        The Secretary General of the United Nations, Kofi Annan, regretted the renewal of Resolution 1422 in the following unequivocal terms, as reported in the Financial Times:

 

 

40.        Paul Heinbecker, Canada's ambassador to the United Nations, put it even more bluntly:

 

41.        I am therefore optimistic that in a hopefully more serene international climate, it will next year be possible to see the principled stance prevail over considerations of political expediency, and I call on the members of the Assembly to encourage their Governments to maintain their support for the ICC also on this issue. Meanwhile, the Court itself should be the legitimate arbiter of the legal validity and, as the case may be, of the scope of the request addressed to it by the Security Council4 

v.       Article 124 of the ICC Treaty

 

42.        In Recommendation 1408 (1999), the Assembly recommended that the Committee of Ministers call on member and observer States “not to avail themselves of the clause in Article 124 which makes it possible to escape the Court’s jurisdiction for seven years”. Unfortunately, the Committee of Ministers, in its reply adopted in June 2000 (Doc 8780), did not react at all to this recommendation of the Assembly. Among the Council of Europe member States, only France had made use of this article.

 

43.        There has been no further development on this matter since the adoption of Resolution 1300 (2002).

 

C.       Signature and Ratification of the Agreement on Privileges and Immunities of the ICC

44.        Globally, only 29 States have signed the Agreement and only 2 States have ratified it (with 10 ratifications needed for the Agreement to enter into force), although the Agreement has been open for signature since September 2002.

 

45.        Among the 29 signatories, there are 23 member and observer States of the Council of Europe: Albania, Andorra, Bosnia-Herzegovina, Canada, Croatia, Estonia, Germany, Greece, Ireland, Latvia, Liechtenstein, Lithuania, Malta, Netherlands, Norway, Poland, Romania, San Marino, Serbia and Montenegro, Slovakia, Slovenia, Sweden, “The Former Yugoslav Republic of Macedonia”. The two countries that have ratified the Agreement are Norway and Costa Rica.

 

46.        It is crucial to the functioning of the Court that states make it an urgent priority to sign and ratify the Agreement, which needs 10 ratifications to enter into force even among those countries.

 

47.        The Agreement provides the Court itself with the legal capacity and inviolability it needs to act as an independent legal entity outside of the Netherlands. It also provides those individuals involved with the legal protection of their person, equipment and communications necessary to carry out their duties without the risk of undue interference, or severe administrative delay, during engagement and after its completion. In addition to the officials and staff of the Court, the Agreement protects witnesses, counsels, experts and those supporting such persons who may find themselves in vulnerable situations. These can arise not only in countries where situations that come before the Court arise, but also in other countries where such persons may find themselves, for example, as refugees, during transit etc.

 

48.        The newly elected President of the Court, Judge Philippe Kirsch, stressed the importance of the Agreement in a statement to the Assembly of States Parties on 21 April 2003. Judge Kirsch regretted that “due attention may have been lost from ratification of the Agreement on Privileges and Immunities […] without which the Court would be hampered in its operations.” He therefore called on States Parties to accelerate the ratification of this key agreement.

 

49.        I can only join in his call, despite the politically unattractive title of this agreement. It is a simple matter of practicality, such as the possibility of negotiating necessary insurance cover, that the Court and its officials must be able to operate in the conditions of independence guaranteed by the Agreement as appropriate to the delicate and sometimes dangerous nature of their work.

 

50.        Given the heavily charged parliamentary agendas in all our countries, it would be a useful practical measure to combine in a single package all of the outstanding legislation required for the ratification of the Rome Statute, its implementation in national law (below D.) and the ratification of the Agreement on Privileges and Immunities.

 

D.       Problems of implementing legislation

51.        The implementing legislation is the tool that is required to put into practice the subsidiary nature of the ICC, which has two aspects:

52.        The Court, which does not have its own investigative machinery, was designed to rely heavily on the cooperation of the State Parties, which are called upon, to a large extent, to act as the ICC’s eyes, ears and arms. Suitable procedures and mechanisms for such cooperation must be put into place in all State Parties, and any existing legal or practical obstacles to such cooperation must be eliminated.

53.        Examples of such cooperative requirements are: to arrest suspects, and surrender them, upon ICC request (including transit to the Hague of prisoners arrested in third countries); to allow the ICC prosecutor to investigate on national territory; for competent national services to carry out investigations and secure evidence on behalf and at the request of the ICC; to include measures of legal protection for the ICC in the national criminal offences relating to administration of justice (such as sanctions for perjury, bribery or intimidation of court officials etc.); to protect witnesses on the national territory; and to accommodate prisoners convicted by the ICC whilst serving their sentences.

54.        The State Parties must also make sure that their national substantive criminal law is compatible with the Rome Statute, in particular that all the international crimes that fall under the jurisdiction of the ICC are also penalised in the national criminal codes and laws. This is required in order to enable the State Parties to fulfil their obligation under the Rome Statute to prosecute such crimes themselves, the ICC being only a subsidiary mechanism that comes into play when the national courts are unable or unwilling to prosecute the crimes in question. The introduction of universal jurisdiction, i.e. the possibility for national courts to prosecute ICC crimes irrespective of the place where the crime took place or of the nationality of the perpetrator, also falls under this heading.

55.        For the sake of legal certainty and clarity, which is particularly important in the field of criminal law, even “monist” countries, which consider international law as an integral part of their national legal order, should consider enacting such implementing legislation.

56.        The Canadian Government as well as non-governmental organisations such as the Coalition for the International Criminal Court, Amnesty International and Human Rights Watch provide valuable “toolkits” designed to assist legislators in devising appropriate legislation. Relevant laws already enacted, or in the process of being enacted, by a number of countries including member and observer States of the Council of Europe have been published in extenso or summarised on these sites. Given the practical importance of these questions, I would strongly recommend that these resources are used by those responsible in member States for drawing up relevant legislation.

57.        The Committee of Ministers, in its reply to Recommendation 1581 (2002), indicated that it was “considering convening a third Multilateral Consultation, in September 2003, on the Implications of the Ratification of the Rome Statute in the domestic legal order of member states. It would welcome the participation of members of the Parliamentary Assembly.”

 

58.        I think that this is a good initiative, and the Parliamentary Assembly should respond positively to this invitation.

E.       Conclusions

 

59.        The signing of the ICC Treaty has been one of the most important achievements in the history of international law. By fighting impunity, it is promoting respect for international humanitarian law and, in a larger sense, it is contributing to the preservation of peace and to the strengthening of international security.

 

60.        I therefore call on my colleagues in the Parliamentary Assembly to endorse the resolution presented by the Committee on Legal Affairs and Human Rights and to work in their national Parliaments in order to implement it, in particular as regards:

 

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Request for an urgent debate, Reference No 2847 of 23 June 2003)

Draft resolution adopted unanimously by the Committee on 24 June 2003

Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr G. Aliyev, Mrs Arifi, Mr Arzilli, Mr Barquero Vázquez, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce, Mr Chaklein, Mrs Christmas-Mĝller (alternate: Mrs Auken), Mr Cilevics, Mr Clerfayt, Mr Contestabile (alternate: Mr Ianuzzi), Mr Daly, Mr Davis, Mr Dees, Mr Dimas, Mrs Domingues (alternate: Mrs Aguiar), Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mrs Frimansdóttir, Mr Frunda, Mr Galchenko, Mr Guardans, Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty, Mr Ivanov, Mr Kalezić, Mr Kelber, Mr Kelemen, Mr Kontogiannopoulos, Mr S. Kovalev, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli (alternate: Mr Ateş, Mr Malins, Mr Manzella, Mr Martins, Mr Mas Torres, Mr Masson, Mr McNamara, Mrs Nabholz-Haidegger, Mr Nachbar (alternate: Mr Salles), Mr Olteanu, Mrs Pasternak, Mr Pehrson, Mr Pellicini, Mr Pentchev, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Prica, Mr Pullicino Orlando, Mr Raguz, Mr Ransdorf, Mr Rochebloine (alternate: Mr Dreyfus-Schmidt), Mr Rustamyan, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica (alternate: Mr Coifan), Mr Symonenko (alternate: Mr Baburin), Mr Tabajdi, Mr Takkula (alternate: Mrs Hurskainen), Mrs Tevdoradze, Mr Toshev, Mr Vanoost, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner

1 Article 7 of the new Common Position also includes a positive reference to the Special Working Group established by the Assembly of States Parties to deal with the crime of aggression. This subject, which falls outside the scope of this Report, may merit the Assembly’s renewed attention at a later stage.

2 Wording of the operative paragraphs of Resolution 1422 (2002): “[…] the Security Council […]

3 Human Rights Watch has recently documented allegations of sexual violence against UN peacekeepers in Sierra Leone, cf. www.hrw.org/reports/2003/sierraleone.

4 Cf. the extensive legal analysis by amnesty international: “International Criminal Court – The unlawful attempt by the Security Council to give US citizens permanent impunity from international justice, London, May 2003”, and the analysis by Carsten Stahn “The Ambiguities of Security Council Resolution 1422 (2002).