Report | Doc. 11722 | 03 October 2008
Co-operation with the International Criminal Court (ICC) and its universality
Committee on Legal Affairs and Human Rights
Summary
The Committee on Legal Affairs and Human Rights reiterates its firm commitment to the International Criminal Court (ICC). The ICC is the first ever permanent, independent judicial institution with jurisdiction over individuals accused of genocide, crimes against humanity and war crimes. The ICC is based on complementarity, seeking to empower nation states to investigate and prosecute such crimes, assuming jurisdiction only as a last resort.
The committee reiterates its belief that the universal ratification of the Rome Statute and its effective implementation into domestic systems as well as close co-operation by states and non-states parties in providing practical and judicial assistance to the ICC are of key importance for the fight against impunity.
It welcomes the fact that since its adoption in 1998, the Rome Statute of the ICC has been ratified by 108 states across the world. Regrettably, eight Council of Europe member states (Armenia, Azerbaijan, the Czech Republic, Moldova, Monaco, Russian Federation, Turkey and Ukraine), one Council of Europe observer state (the United States) and one observer state with the Parliamentary Assembly (Israel) have not yet ratified the Rome Statute.
The committee calls on all member states and those having observer status with the Council of Europe or the Parliamentary Assembly to ratify themselves and/or actively promote universal ratification of the Rome Statute and the Agreement on Privileges and Immunities of the ICC, and to fully co-operate with the ICC in the fight against impunity for the most serious crimes of international concern.
A. Draft resolution
(open)B. Explanatory memorandum, by Mrs Herta Däubler-Gmelin
(open)1. Introduction
“The best chance humankind has ever had to end the ‘culture of impunity’ is within our grasp. We must not let it fall.”
Such optimism is reflected
in the preamble of the Rome Statute of the ICC, which endeavours to punish “the
most serious crimes of concern to the international community as
a whole”, and pledges “to put an end to impunity for the perpetrators
of these crimes and thus to contribute to the prevention of these
crimes.” The preamble further aims to promote effective prosecution
by “taking measures at the national level and by enhancing international co-operation”
and stresses “that the International Criminal Court established
under this Statute shall be complementary to national criminal jurisdictions.”
As a result, states have been accorded an important role in the
system of international criminal justice under the auspices of the
ICC. The
ICC’s method of creation is unprecedented in the sense that it was
created by an international treaty by states themselves, ensuring
“that the court broadly reflected the aspirations and objectives
of the international community.” Unfortunately,
a number of states have still not ratified the Rome Statute, with pronounced
regional disparities. Africa is the most strongly represented region,
while central Asia and the Middle East are still under-represented
among ICC states parties (for a list of ratifications by countries
and regions, please consult the websites www.icc-cpi.int and www.iccnow.org ). The
fact that many states are not party to the Rome Statute, including
eight Council of Europe member states (Armenia, Azerbaijan, the
Czech Republic, Moldova, Monaco, Russian Federation, Turkey and
Ukraine), one Council of Europe observer state (the United States) and one observer state with
the Parliamentary Assembly (Israel) underpins the need for continued
efforts to promote ratification worldwide by “cultivating awareness
and understanding of the court’s functions” and to support the ICC by encouraging
the implementation of domestic legislation consistent with the Rome
Statute. He
believes, “[t]he more that people understand that the court is a necessary
and a credible institution, the more that support for its mission
and its operation will grow.” According to the
Coalition for the International Criminal Court (CICC), the Council
of Europe has “been among the very first international
organisations to call for the creation of a permanent international criminal
court.” In particular, the
vast array of resolutions and recommendations of the Assembly on
this matter demonstrates its interest in this institution. In
addition, the Assembly’s Sub-Committee on Crime Problems and the
Fight against Terrorism has engaged in dialogue with high-ranking
officials of the ICC in April 2006. The
Committee on Legal Advisers on Public International Law (CAHDI)
has organised four major consultations with Council of Europe member
states on the implications for the latter of the ratification of
the Rome Statute and has regularly advocated the implementation
of the Rome Statute into national legislation. The Venice Commission has examined the
constitutional issues raised by the ratification of the Rome Statute. In light of its demonstrated commitment
to the ICC, and its relationship with those member or observer states
of the Council of Europe and the observer state of the Parliamentary
Assembly which have not ratified the Rome Statute to date, the Council
of Europe must continue to promote its ratification and effective implementation. has
recently reiterated its plea to states parties “to proactively promote
universality and full implementation”, in all their contacts, political
and otherwise, including through bilateral and regional relationships
with nonstates parties, regional groups and regional organisations. It
further urges states parties to intensify their own commitment to
the ICC “so as to ensure a strong, effective and efficient institution
and thereby encourage other states to join.” In
addition, such an overview will underscore the vital role of the
ICC on a global scale and the urgent need for universal ratification.
As stated by the ASP, “[u]niversality of the Rome Statute of the International
Criminal Court is imperative if we are to end impunity for the perpetrators
of the most serious crimes of international concern, contribute
to the prevention of such crimes, and guarantee lasting respect
for and enforcement of international justice.” Aside from ratification, “[f]ull and effective
implementation of the Rome Statute by all states parties is equally
vital to the achievement of these objectives.” Such implementation
should include enabling legal instruments, notably the Agreement
on Privileges and Immunities of the ICC (APIC), which bestows certain
privileges and immunities on ICC officials and staff as are necessary for
the independent and effective performance of their duties. To date, 14 Council of Europe
member states have not ratified the APIC, including seven countries
which are states parties to the Rome Statute (Bosnia and Herzegovina,
Georgia, Malta, Poland, San Marino, Spain and Switzerland). Interestingly,
Ukraine has ratified the APIC without being as yet party to the
Rome Statute. I am pleased that the Netherlands as the ICC’s host state
finally ratified the agreement in August 2008.2. Jurisdictional ambit of the International Criminal Court (ICC)
2.1. Subject matter jurisdiction (ratio materiae)
sets
out the core crimes over which the ICC has jurisdiction: genocide,
crimes against humanity, war crimes, and after formulation of a
definition, the crime of aggression. The Rome Statute’s preamble
recognises these crimes as “the most serious crimes of concern to
the international community as a whole.” The crime of aggression (and the lack of a
definition thereof to date) has garnered much debate and could represent
a possible reason for states not to ratify the Rome Statute. It appears, however, that it is not
so much the definition of the crime of aggression itself but rather the
question about the court’s jurisdiction over that crime, and its
relationship to the UN Security Council, which is creating continued
challenges. In particular, after
the Rome Conference of 1998, the “great powers” (and permanent members
of the Security Council) continued to voice their fears about the
court becoming a politically motivated propaganda tool which could
condemn even legitimate use of force in line with the UN Charter. the
Rome Statute is a more progressive reflection of current trends
and developments in international customary law. Aside from reconsidering
a number of prerequisite elements of international crimes, the Rome
Statute has been groundbreaking in criminalising some acts for the
very first time, as illustrated by the gender-based crime provisions.
In contrast to the statutes governing the International Criminal
Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), the
Rome Statute deals comprehensively with gender-based crimes. For
the first time, various acts of genderbased violence are defined
as international crimes in their own right rather than merely as
offences against honour and dignity. Significantly, the Rome Statute
contains the first codification of the crimes of forced prostitution
and sexual slavery in the international sphere. As Bedont and Hall-Martinez point
out, “[t]he Rome Statute represents a significant step in overcoming
the discriminatory and inadequate treatment of sexual violence under
international law.” The Rome Statute’s progressiveness
is exemplified by the notion that “[i]t is not anymore acceptable
to argue that, in the absence of the express criminalisation of
this conduct under domestic law, it is illegitimate to make findings
as of their binding nature to a given case directly under international
law.” By contrast, the Rome Statute
has done away with both elements, Article 7.2.e extending
to acts which could be “purposeless or merely sadistic” and
requiring only that the victim be “in the custody or under the control
of the accused.” Burgers
and Danelius note that the UN convention was primarily motivated
by the need to capture state sponsored violence against its citizens,
which had increased during the 20th century. A growing realisation
on the part of the international community that torture is in the
meantime commonly engaged in by belligerents during internal and
international armed conflicts has influenced the definition of the
Rome Statute. The Rome Statute’s comprehensive understanding of
torture therefore more adequately captures the nature of the crime
in that it “better reflects the how and by whom torture is committed.” As stressed by President Kirsch, “[i]n
order for the principle of complementarity to work, national jurisdictions
need to adopt domestic legislation prohibiting crimes within the
jurisdiction of the court.” 2.2. Temporal jurisdiction (ratione temporis)
The court’s jurisdictional ambit is limited
to events from 1 July 2002 onwards, the date of its entry into force.
However, where a country becomes state party after such date, the
ICC only has jurisdiction for that state from the date of ratification,
unless the country accepts jurisdiction of the court for the period
prior thereto (Rome Statute, Article 11.2), but in no case before
1 July 2002. Under Article 12.3 of the Rome Statute,
ICC jurisdiction extends to non-states parties, which have accepted
the jurisdiction.2.3. Triggering mechanisms
Most
recently, an investigation was launched in the Central African Republic
following a referral by the government of that state.“While my authority as the Prosecutor to initiate investigations by the proprio motu power is a critical aspect of the Office’s independence, I have adopted the policy of inviting and welcoming voluntary referrals by territorial states as a first step in triggering the jurisdiction of the court. This policy resulted in referrals for what would become the court’s first two situations: northern Uganda and the DRC. The method of inviting investigations by voluntary referral has increased the likelihood of important co-operation and on-the-ground support to carry out the investigation and prosecution.”
2.4. Gravity of crimes
2.5. The principle of complementarity
Although an exact definition of the notion
of “complementarity” is not proffered in the statute, Michael Newton
points out that “the plain text of Article 1 compels the conclusion
that the International Criminal Court is intended to supplement the foundation of domestic
punishment of international violations, rather than supplant domestic enforcement of
international norms.” The preamble’s message
is clear in “recalling that it is the duty of every state to exercise
its criminal jurisdiction over those responsible for international
crimes.” At the heart of the principle of complementarity is a state’s
“unwillingness” or “inability” to prosecute international crimes,
set out in Article 17.2 and 17.3 of the Rome Statute. A determination of “unwillingness” is easily
made in a situation where bad faith is employed by the national judicial
authority in order to circumvent ICC jurisdiction, such as where
a trial is stage-managed in order to shield a suspect, or where
prosecution is refused altogether. Greater complexities present themselves
in situations where efforts are genuine but insufficient, where
a conviction is followed by a pardon, or where a more or less effective
investigation leads to a decision not to prosecute. suggests that the drafters’
intention was clearly to bestow a subsidiary or secondary position
on the court vis-à-vis national criminal
jurisdictions. The result is that the ICC’s jurisdictional scheme
is confined by Article 17, allowing the court to assume jurisdiction
only in limited situations. The fact that
states merely need to demonstrate their willingness and ability
to investigate an international crime within the jurisdiction of
the ICC in order to avoid the ICC’s jurisdiction should silence
any fears – especially of states which have a functioning judiciary
and a genuine will to bring perpetrators of international crimes
to justice – that the court could assume jurisdiction against the
will of the state concerned.3. Key features of the ICC’s co-operation regime
enforcing sentences
of convicted persons, and so on. For instance, in two of the cases
presently before the court, northern Uganda and Darfur, where arrest warrants
have been issued, it is of vital importance that states assist the
ICC in apprehending and transferring the suspects to the court in
The Hague. Such co-operation
is particularly crucial in light of the fact that the ICC, much
like the ICTY and ICTR, does not have its own police force or any
other enforcement mechanism commonly at the disposal of national
courts. general outreach, and outreach relating to specific
cases, taking
into account factors such as the context of operations, target groups
(general population, media, NGOs, victims, government/opposition,
traditional and religious leaders, etc.), phases of the juridical
process, messages, communication tools, etc. Although the primary
responsibility lies with the court to engage in active outreach
activities the
court does not have the financial or human resources to act alone.
States, national and international organisations as well as non-governmental
organisations are often wellplaced to assist in this task.“… the court cannot accomplish its mission on its own. The support of states, intergovernmental and nongovernmental organisations (NGOs), and the international community at large, is necessary for its success. As the court’s personal and territorial jurisdiction is limited …, universal ratification of its Statute is necessary for the court to achieve a truly global reach in the fight against impunity. Ratification, however, is only the initial step towards the court reaching its full potential. States parties and non-states parties alike can contribute to a strong and effective court in many ways. The investigation and prosecution of specific cases will not only require the co-operation of the states where the atrocities occurred, but will also call upon the resources of all states which can contribute to the court’s operations. The ICC relies upon the practical assistance of states in relation to different stages of its proceedings, from the arrest of suspects to the enforcement of the sentences of the convicted.”
4. Arguments advanced by Council of Europe member states which have not yet ratified the Rome Statute
1. What are your country’s reasons for not ratifying the Rome Statute of the International Criminal Court?
If there are several reasons, please list them in order of importance, if any, and in as detailed a manner as possible.
2. Does your country intend to ratify the Rome Statute in the near future?
If so, please indicate the approximate timeframe foreseen.
a. Are there specific constitutional issues raised by the ratification of the Rome Statute?
If so, please explain in detail and indicate which formal steps your country envisages taking prior to ratification.
b. Has your country made any formal steps towards implementing the Rome Statute into national law?
In
the case of Azerbaijan, this has been justified by the absence of
a definition of the crime of aggression and the lack of retroactive
effect of the Rome Statute prior to July 2002. In the case of Monaco,
the reluctance to ratify is based on constitutional issues as well
as the belief that Monaco, as a country which respects human rights,
is not likely to be involved in crimes which belong to the jurisdiction
of the ICC. The United States, in turn, has reiterated that while
it does not intend to become a party to the Rome Statute, it has
sought to adopt a practical approach toward other ICC states parties
in advancing the shared goal of promoting international criminal justice.
It acknowledges, however, that in some instances, such as in the
case of the crimes being committed in Darfur, the ICC may have a
role to play.5. Conclusion and recommendations: the Council of Europe’s role
has
an arduous task. With a broad geographical and temporal reach, and
a progressive understanding of international crimes, it is built
on an intricate system of complementarity which seeks to empower
national states to investigate and prosecute such crimes, assuming
jurisdiction only as a last resort. Complementarity requires not
only universality of the Rome Statute, but also its effective implementation
into domestic systems as well as continued close co-operation by
states and non-states parties in providing practical and judicial
assistance to it.
- sign and ratify without further delay the Rome Statute and the Agreement on the Privileges and Immunities of the ICC;
- adopt effective national implementing legislation at the earliest opportunity and encourage third states to do so;
- protect the integrity of the Rome Statute as recommended in Resolutions 1300 (2002) and 1336 (2003).
- fully co-operate with the ICC in the fight against impunity for the most serious crimes of international concern;
- empower their judicial and law enforcement authorities in order to exercise the states’ primary jurisdiction over crimes within the purview of the ICC;
- make meaningful financial contributions to the ICC’s Trust Fund for Victims;
- incorporate in their legal orders relevant standards on victims’ rights, without prejudice to existing higher standards in some Council of Europe member and observer states and Parliamentary Assembly observer states.
Reporting committee: Committee on Legal Affairs and Human Rights.
Reference to committee: Doc. 11032 and Reference No. 3280 of 6 October 2006.
Draft resolution unanimously adopted by the committee on 9 September 2008.
Members of the committee: Mrs Herta Däubler-Gmelin (Chairperson), Mr Christos Pourgourides, Mr Pietro Marcenaro, Mrs Nino Nakashidzé, (Vice-Chairpersons), Mr Francis Agius, Mr José Luis Arnaut, Mrs Meritxell Batet Lamaña, Mrs Marie-Louise Bemelmans-Videc, Mrs Anna Benaki, Mr Erol Aslan Cebeci, Mrs Ingrida Circene (alternate: Mr Boriss Cilevičs), Mrs Alma Čolo, Mr Joe Costello (alternate: Mr Terry Leyden), Mrs Lydie Err, Mr Valeriy Fedorov, Mrs Mirjana Ferić-Vac, Mr Aniello Formisano (alternate: Mr Andrea Manzella), Mr György Frunda, Mr Jean-Charles Gardetto, Mr József Gedei, Mrs Svetlana Goryacheva (alternate: Mr Arsen Fadzaev), Mrs Carina Hägg, Mr Holger Haibach, Mrs Gultakin Hajiyeva, Mrs Karin Hakl, Mr Andres Herkel, Mr Serhiy Holovaty, Mr Michel Hunault, Mr Rafael Huseynov, Mrs Fatme Ilyaz, Mr Kastriot Islami, Mr Želijko Ivanji, Mrs Iglica Ivanova, Mrs Kateřina Jacques, Mr Karol Karski, Mr András Kelemen, Mrs Kateřina Konečná, Mr Eduard Kukan, Mr Oleksandr Lavrynovych (alternate: Mr Ivan Popescu), Mrs Darja Lavtižar-Bebler, Mrs Sabine LeutheusserSchnarrenberger, Mr Humfrey Malins, Mr Andrija Mandić, Mr Alberto Martins, Mr Dick Marty, Mrs Assunta Meloni, Mr Morten Messerschmidt, Mrs Ilinka Mitreva, Mr Philippe Monfils, Mr Alejandro Muñoz Alonso (alternate: Mr Miguel Barceló-Pérez), Mr Felix Müri, Mr Philippe Nachbar, Mr Fritz Neugebauer, Mr Tomislav Nikolić, Mr Anastassios Papaligouras (alternate: Mr Theodoros Pangalos), Mrs Maria Postoico, Mrs Marietta de Pourbaix-Lundin, Mr John Prescott (alternate: Mrs Ann Clwyd), Mr Valeriy Pysarenko, Mrs Marie-Line Reynaud, Mr François Rochebloine, Mr Francesco Saverio Romano, Mr Paul Rowen, Mr Armen Rustamyan, Mr Kimmo Sasi, Mr Ellert Schram, Mr Christoph Strässer, Lord John Tomlinson, Mr Mihai Tudose, Mr Tuğrul Türkeş, Mrs Özlem Türköne, Mr Vasile Ioan Dănuţ Ungureanu, Mr Øyvind Vaksdal, Mr Hugo Vandenberghe, Mr Egidijus Vareikis, Mr Klaas de Vries, Mr Dimitry Vyatkin, Mrs Renate Wohlwend, Mr Jordi Xuclà i Costa, Mr Marco Zacchera, Mr Krzysztof Zaremba, Mr Łukasz Zbonikowski.
NB: The names of the members present at the meeting are printed in bold.
The draft resolution will be discussed at a later sitting.
Appendix – Table of country replies to the questionnaire
(open)|
Country name and date reply received |
Reasons for not ratifying the Rome Statute (RS) If several reasons, listed in order of importance |
Does your country intend to ratify RS in near future? If so, timeframe foreseen |
Are there specific constitutional issues raised by the ratification of the RS? If so, please explain in detail and indicate which formal steps your country envisages taking prior to ratification |
Has your country made any formal steps towards implementing the RS into national law? |
|---|---|---|---|---|
|
Council of Europe member states |
||||
|
Armenia 21.03.08 |
Please see answer to question N. 3. |
Armenia signed the Statute of the ICC on 1 October 1999. It is not possible to indicate an approximate date for ratification, as the amendments to the constitution adopted in November 2005 do not eliminate all the necessary discrepancies. However, the Constitutional Court considers that such an amendment to the Constitution of Armenia is possible, and will allow the RS to be considered as complementary to the national system. |
Yes. Ruling 502 of the Constitutional Court of 13 August 2004 identified the following areas of conflict between the RS and the national constitution, adopted in 1995: 1. Articles 91 and 92 of the constitution are in conflict with the Rome Statute’s principle of complementarity (preamble and Article 1) as they establish Armenian courts’ primacy in accordance with the constitution and national laws. According to Article 92, the courts of general jurisdiction, including criminal jurisdiction, shall be the courts of first instance, the appellate courts and the court of cassation. In addition, Chapter 6 of the constitution, which includes provisions on the judiciary, does not contain any provision which creates an opportunity to complement, through an international treaty, the system of judicial bodies exercising criminal jurisdiction. 2. Right to ask for pardon or amnesty under Armenian Constitution conflicts with Article 105 of RS, which stipulates that a prison sentence shall be binding on states parties, which shall in no case modify it. Accordingly, the President of the Republic cannot realise his right to grant a pardon and the National Assembly its right to declare an amnesty in regard to these persons. 3. Conflict between RS and national constitution as regards protection of human rights and freedoms. Article 4 of the constitution cannot make restrictions on human rights, which are not provided for in the constitution, and which will create less favourable protection for persons under the constitution [reply does not back this argument with concrete examples]. |
|
|
Azerbaijan 11.10.07 |
1. Absence of definition of crime of aggression. 2. Lack of retroactive effect of RS prior to July 2002. |
No. |
Yes. RS is in contradiction with the Constitution of the Republic of Azerbaijan (CRA) on two principal grounds: 1. Article 53.2 of CRA stipulates that under no circumstances shall citizens of Azerbaijan be expelled or transferred to a foreign state. RA claims that this article is in conflict with Article 4.2 of RS, which grants the ICC jurisdiction in the territories of all member states. 2. CRA grants heads of state and members of parliament immunity, while the RS does not. |
No. Nevertheless it should be noted that the crimes listed in the second part of the RS are echeed in Chapter 16 (Crimes against peace and humanity) and Chapter 17 (War crimes) of Part VII of the Criminal Code of the Republic of Azerbaijan. |
|
Czech Republic (13.03.08) |
The main arguments against ratification are of a legal nature. Opponents argue that the Rome Statute, to some extent, contradicts the constitution and the Declaration of Basic Rights and Freedoms, which forms part of the Czech constitutional order – ratification is conditional on amendments. In particular, alleged contradiction with the following rules: – that the state is forbidden to extradite its own citizens; – that the President of the Republic has the right to grant pardon and amnesty; – the rule of immunity of President of the Republic, MPs and constitutional judges. Other reasons are of a political nature (namely, fear of the abuse of ICC, foreign policy reasons – especially relations with the USA). |
Yes, ratification should be realised by the end of 2008. |
Yes, see above answer to question N. 1. |
Not yet, as ratification must take place first. |
|
Moldova – No reply |
||||
|
Monaco (20.09.07) |
1. Would signify modification of constitution, which is not desired at present. 2. Underscores that Monaco respects human rights and is not likely to enter into ICC’s jurisdictional ambit. |
No. |
Yes. Article 3 of Monaco’s Constitution sets out that the executive power is vested with the Prince and that he enjoys immunity. |
No. |
|
Russian Federation – No reply |
||||
|
Turkey – No reply |
||||
|
Ukraine (05.10.07) |
– In July 2001, the Constitutional Court of Ukraine held that the RS does not comply with the Constitution of Ukraine. – Complications related to the intricate procedures of submitting amendments to the Constitution of Ukraine. |
Yes, ratification of the RS complies with Ukraine’s aspirations as part of European integration and is stipulated in the Action Plan for 2005-07. However, given the complicated process of submitting amendments to the constitution, this may take time. In 2006, the Ministry of Justice and the Ministry of Foreign Affairs submitted for the consideration of the Cabinet of Ministers the draft law on amendments to the Constitution of Ukraine, in light of the earlier decision of the Constitutional Court. |
Yes. The Constitutional Court of Ukraine based its finding on the fact that the Constitution of Ukraine does not foresee a complementary relationship between it and the ICC. All other provisions of the RS were recognised as complying with the constitution. |
Yes. Ukraine declares its indisputable support for the ICC and takes practical steps in implementing it. Presently, there is work being carried out to ratify the RS and all necessary draft laws have been prepared. While Ukraine has not yet ratified the Rome Statute, it has ratified other key instruments relating to the work of the ICC, such as the Agreement on Privileges and Immunities, which came into force on 28 February 2007. |
|
Council of Europe observer states: |
||||
|
Japan (17.08.07) |
On 17 July, the instrument of accession to the Rome Statute of the International Criminal Court was deposited by Mr Kenzo Oshima, Ambassador Extraordinary and Plenipotentiary, Permanent Representative of Japan to the United Nations, with the UN Secretary-General. Japan to officially become a state party to the statute on 1 October 2007. |
|||
|
United States of America (10.04.08) |
The US shares with parties to the Rome Statute a strong belief in the importance of accountability for genocide, war crimes, and crimes against humanity. The US position about the ICC is well known, and it does not intend to become party. It acknowledges, however, that in some cases, such as the situation of Darfur, there may be an appropriate role for the ICC. The US respects the rights of other states to choose to become parties to the RS, and it asks that they similarly respect the US decision not to become a party. It has sought to adopt a practical approach towards working with RS parties to advance the shared goal of promoting international criminal justice and urges RS parties to join it in its efforts. |
No. |
||
|
Parliamentary Assembly observer state: |
||||
|
Israel – No reply |
||||