Cooperation and the International Criminal Court : Perspectives from Theory and Practice [1 ed.] 9789004304475, 9789004304468

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Cooperation and the International Criminal Court

Nottingham Studies on Human Rights Published under the auspices of the Human Rights Law Centre of the University of Nottingham

Edited by Dominic McGoldrick David Harris

VOLUME 4

The titles published in this series are listed at brill.com/nshr

Cooperation and the International Criminal Court Perspectives from Theory and Practice Edited by

Olympia Bekou Daley J. Birkett

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Bekou, Olympia, editor. | Birkett, Daley, editor. | University of Nottingham. Human Rights Law Centre, sponsoring body. Title: Cooperation and the International Criminal Court : perspectives from theory and practice / edited by Olympia Bekou, Daley J. Birkett. Description: Leiden ; Boston : Brill Nijhoff, 2016. | Series: Nottingham studies on human rights ; volume 4 | “Published under the auspices of the Human Rights Law Centre of the University of Nottingham” | Includes bibliographical references. Identifiers: LCCN 2016010726 (print) | LCCN 2016011161 (ebook) | ISBN 9789004304468 (hardback : alk. paper) | ISBN 9789004304475 (E-book) Subjects: LCSH: International Criminal Court--Congresses. | International criminal courts--Congresses. | Criminal procedure (International law)--International cooperation--Congresses. | Complementarity (International law)--Congresses. Classification: LCC KZ7311 .C6594 2016 (print) | LCC KZ7311 (ebook) | DDC 345/.01--dc23 LC record available at http://lccn.loc.gov/2016010726

Want or need Open Access? Brill Open offers you the choice to make your research freely accessible online in exchange for a publication charge. Review your various options on brill.com/brill-open. Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2211-7342 isbn 978-90-04-30446-8 (hardback) isbn 978-90-04-30447-5 (e-book) Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Foreword vii Acknowledgements ix List of Abbreviations x Notes on Contributors xi Introduction 1 Legal Rules, Policy Choices and Political Realities in the Functioning of the Cooperation Regime of the International Criminal Court 7 Annalisa Ciampi The International Criminal Court Cooperation Regime – A Practical Perspective from the Office of the Prosecutor 58 Pascal Turlan Credible and Authoritative Enforcement of State Cooperation with the International Criminal Court 80 Göran Sluiter and Stanislas Talontsi Non-Compliance and the Law and Politics of State Cooperation: Lessons from the Al Bashir and Kenyatta Cases 114 Lorraine Smith-van Lin Practical Cooperation Challenges Faced by the Registry of the International Criminal Court 152 Anne-Aurore Bertrand and Natacha Schauder Non-cooperation and the Efficiency of the International Criminal Court 185 Annika Jones The Place of Consultation in the International Criminal Court’s Approach to Complementarity and Cooperation 210 Nicola Palmer Cooperation and the International Criminal Court: The Freezing, Seizing and Transfer of Assets for the Purpose of Reparations 227 Carla Ferstman

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Reflections of the Facilitator for Cooperation in the Hague Working Group, 2012–2015 248 Anniken Ramberg Krutnes



A State’s Experience of Cooperation with the International Criminal Court: The Case of Belgium 269 Gérard Dive and Julie de Hults

Strengthening the International Criminal Court Cooperation Regime from the European Union’s Perspective 297 Christian Behrmann

Strengthening International Criminal Court Cooperation – The Role of Civil Society 318 Matthew Cannock



Using ‘Managerial Compliance’ to Strengthen the International Criminal Court Cooperation Regime 366 Emilie Hunter



Fostering Cooperation through Technology-Driven Tools 396 Olympia Bekou, William E. M. Lowe and Daley J. Birkett Index 417

Foreword The International Criminal Court (icc) cannot succeed in its mission to tackle impunity for atrocities without cooperation from States. The necessity of cooperation is apparent on even a cursory examination of the icc’s structure and activities: the Court does not have a police force to arrest fugitives; it does not have territory in which it can relocate victims and witnesses who require protection; and its teams of investigators require access and assistance from States in order to operate effectively. The essays in this timely collection explore a number of current challenges affecting the Court’s international cooperation regime. In this foreword I want to set out the importance of cooperation with the icc and argue that States should think of cooperation with the Court as a set of legal obligations and a partnership to achieve shared objectives of ending impunity for genocide, war crimes and crimes against humanity. States Parties to the Rome Statute of the icc have placed themselves under a legal obligation to cooperate with the Court. In addition, two States which are not Parties, Sudan and Libya, are under legal obligations to cooperate with the Court pursuant to un Security Council Resolutions 1593 (2005) and 1970 (2011), respectively. The uk will continue to call on Sudan and Libya to meet these obligations, in particular with respect to enforcement of outstanding arrest warrants. We will continue to fulfil our own obligations to the Court and encourage other States Parties to do likewise. In order for the icc to succeed, it is important that States Parties look proactively at ways they can support the Court. First, the Court requires support at the political and diplomatic level. The uk supports the Court in a number of ways: we encourage States to ratify or accede to the Rome Statute and enact relevant implementing legislation; we lobby States Parties (and non-States Parties) to cooperate with the Court; and we use our position on the un Security Council to help ensure that international criminal justice and icc-related issues are properly reflected in un Security Council Resolutions. To give one practical example of our political support for the icc, the uk, along with a number of other States Parties, has adopted a policy of no non-essential contact with individuals subject to an icc arrest warrant. There is no requirement in the Rome Statute to adopt such a policy. But avoiding such non-essential contacts sends a powerful message that there can be no ‘business as usual’ with fugitives from the Court and demonstrates support for the icc. Secondly, the icc requires practical support across a range of areas including: relocating vulnerable victims and witnesses; accepting indictees on interim release; and enforcing sentences. There is no legal obligation on a State

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to accept a particular witness or offer to enforce a particular sentence. But if States do not volunteer to assist the icc in this way, the Court cannot function effectively. The uk continues to encourage all States to support the icc, and other international courts and tribunals, in this area. The uk is enforcing the sentence of Charles Taylor, former President of Liberia, following his conviction by the Special Court for Sierra Leone. Thirdly, for the Rome Statute system to be a success, States need to strengthen their resolve to tackle impunity for serious international crimes domestically, and work together to end the culture of impunity for these atrocities. The icc operates on the basis of complementarity and is a court of last resort: its existence does not remove States’ responsibilities to address such crimes themselves. Furthermore, as the Preamble to the Rome Statute affirms, there must also be enhanced international cooperation to ensure effective prosecution of these crimes. As the Prime Minister’s Special Representative on Preventing Sexual Violence in Conflict, I have a responsibility to help ensure that justice is delivered for victims and that the perpetrators of these crimes are held accountable. The uk continues to play a leading role on these issues through the Preventing Sexual Violence Initiative (psvi) – which remains a key priority for the Government. The uk supports the icc Prosecutor’s Policy Paper on sexual and gender-based crimes. In conclusion, the uk sees its cooperative relationship with the icc as a partnership in pursuit of shared objectives and encourages other States to view their interaction with the Court in the same way. But we are also conscious that State cooperation with the Court is only one part of the picture. Civil society organisations have been an animating force in shaping the Court since its inception. They have worked hard to build support for the Court among States and with the public. International organisations, activists, survivors, and other legal and academic experts also continue to play an important role. This collection is a good example of how different experts can make a valuable contribution to the Court’s international cooperation regime. It brings together a range of expert perspectives from both theory and practice, addressing matters of law which are vital to the future of the icc as well as its current operations. I commend it to you. The Rt Hon Baroness Anelay of St Johns dbe November 2015

Acknowledgements First, the editors are grateful to the contributors to this volume, all of whom provided timely and thoughtful contributions to what is expected will be a valuable addition to the literature in this field. Sincere thanks are also due to the 26 experts from academia, government, civil society and the icc who gathered in Nottingham for the Expert Workshop from which this book stems. The fruitful discussions that took place during this event stimulated a number of the ideas explored in this book. Without the support of the University of  Nottingham Human Rights Law Centre (hrlc) – and particularly its Co-Directors, Professors David Harris and Dominic McGoldrick – which funded the event, this project would not have been realised. The editors wish to express their gratitude to Baroness Anelay and the War Crimes Team at the Foreign and Commonwealth Office for facilitating the inclusion of an insightful foreword. The editors also wish to thank Ms Emma Knight, a graduate from the ll.m. programme at the University of Nottingham, whose assistance was invaluable during the editorial phase. Finally, thanks are due to Ms Bea Timmer and the team at Brill Nijhoff, who ensured that the publication process was effortless for both authors and editors from the outset. November 2015 Nottingham

List of Abbreviations asp au car cicc drc eu hrw icc ictr icty ngo otp RoC rpe un unsc vwu

Assembly of States Parties African Union Central African Republic Coalition for the International Criminal Court Democratic Republic of the Congo European Union Human Rights Watch International Criminal Court International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia Non-governmental organisation Office of the Prosecutor Regulations of the Court Rules of Procedure and Evidence United Nations United Nations Security Council Victims and Witnesses Unit

Notes on Contributors Dr Christian Behrmann Christian Behrmann, Attorney-at-Law, is Policy Officer for Global and Multilateral Issues, European External Action Service. Before joining the diplomatic service, Dr Behrmann practised law in private practice, the eu institutions, and the United Nations. He holds a Ph.D. in public international law and lectures at the University of Leuven. Professor Olympia Bekou Olympia Bekou is Professor of Public International Law and Head of hrlc’s International Criminal Justice Unit. A qualified lawyer, she specialises in international criminal law. Olympia has undertaken numerous capacity-building missions, including in post-conflict situations, has provided legislation drafting assistance to Samoa and Jamaica, and has been involved in training the Thai judiciary. She is responsible for the National Implementing Legislation Database (nild) of the icc’s Legal Tools Project and has taught law extensively worldwide. In 2014, she was awarded the University of Nottingham Knowledge Exchange and Innovation Award for Societal Impact in Social Sciences. Ms Anne-Aurore Bertrand Anne-Aurore Bertrand is a lawyer from France. She has an ll.m. in uk Human Rights and Public Law from the University of Essex. She has worked at the icc since 2004 as an Associate Legal Officer and, since August 2010, as a Cooperation Adviser. Mr Daley J. Birkett Daley J. Birkett is Legal Consultant at the United Nations Assistance to the Khmer Rouge Trials (UNAKRT) in the Extraordinary Chambers in the Courts of Cambodia. He previously worked as Research Associate in HRLC’s International Criminal Justice Unit, where he assisted in the development of the Cooperation and Judicial Assistance Database (CJAD). Daley holds an ll.m. (cum laude) from Leiden University and lectures at the Royal University of Law and Economics in Phnom Penh, Cambodia. Mr Matthew Cannock Matthew Cannock has been a Legal Officer at the Coalition for the icc since 2010, coordinating advocacy on behalf of civil society on a wide-range of topics including fair trial rights and legal representation, victims’ participation and

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budget advocacy. Matthew also oversees the cicc’s extensive trial monitoring programme. In relation to cooperation, Matthew coordinates the Coalition’s team on icc cooperation issues, which undertakes advocacy with State Parties, and is made up of many civil society organisations active on the issue of cooperation with the icc. Matthew holds an ll.m. (cum laude) from Leiden University. Professor Annalisa Ciampi Annalisa Ciampi, ll.m. (Harvard) has taught law at the Universities of Catanzaro, Macerata, Trento, Florence and Panthéon-Assas (Paris ii). She has published extensively in the fields of international and European Union law and her areas of expertise include human rights, international criminal law, international economic law and cultural heritage. She is currently a Full Professor of International Law at the University of Verona. In 2005, Professor Ciampi was a Visiting Professional in the Office of the Prosecutor, Legal and Advisory Section, at the International Criminal Court. Ms Julie de Hults Julie de Hults is Legal Advisor at the Ministry of Justice of Belgium. She is Deputy Head of the Belgium Central Authority for Cooperation with the International Criminal Court and other International Criminal Tribunals. Julie holds an ll.m. from the Université catholique de Louvain. Mr Gérard Dive Gérard Dive studied law and public international law at the Université Libre de Bruxelles. He then worked as a researcher in International Humanitarian Law at the same institution from 1993–1996 before entering the Belgian Ministry of Justice in 1996. Since then, Mr Dive has acted as the Belgian negotiator at the first and second sessions of the United Nations Preparatory Committee, the Assembly of States Parties, and the Kampala Review Conference. He is now President of the Belgian Task Force for International Criminal Justice. Gérard also serves as Scientific Collaborator at the Center for International Law at the Université Libre de Bruxelles. Ms Carla Ferstman Carla Ferstman joined REDRESS in 2001 as its Legal Director and became its Director in 2005. She was called to the Bar in British Columbia, Canada in 1994 and practised there as a criminal law barrister. She has also been a visiting professional with Australian National University in Canberra. She obtained an

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ll.b. from the University of British Columbia and an ll.m. from New York University and is working to complete a D.Phil at the University of Oxford. Ms Ferstman has published and is a regular commentator on victims’ rights, the International Criminal Court and the prohibition against torture. Dr Emilie Hunter Emilie Hunter is a Deputy Director of the Case Matrix Network and a Fellow of the University of Nottingham Human Rights Law Centre. Emilie has worked for the un in Iraq, with judiciaries and government agencies in Iran, Iraq, Kaliningrad, Malaysia, México and Thailand and with ngos in China, Iraq, Mexico and Spain on criminal law (national and international) and international human rights standards. She is experienced in designing and implementing bespoke capacity building and knowledge transfer activities and, between 2005 and 2009, she oversaw the creation and development of the National Implementing Legislation Database of the icc Legal Tools Project. Dr Annika Jones Annika Jones is a Lecturer in Law at Durham University, where she teaches international criminal law, international human rights law and legal skills. She was formerly Lecturer in Law at the University of Exeter. Annika holds a first class degree in Law and an ll.m. in International Criminal Justice and Armed Conflict with distinction, both from the University of Nottingham. She completed her doctoral thesis at the same institution. In 2012, she was awarded the University of Nottingham Endowed Postgraduate Award for her doctoral research. Her research interests largely fall within the fields of international criminal law and post-conflict reconstruction. Ambassador Anniken Ramberg Krutnes Ambassador Anniken Ramberg Krutnes has been the Norwegian Ambassador to the Netherlands since September 2011, and Luxembourg from 2012. Ambassador Krutnes was the Facilitator of the Informal Working Group on Cooperation of The Hague Working Group from February 2012 until December 2015. She has held a variety of positions in the Norwegian Ministry of Foreign Affairs in Oslo – including in the Legal Department. Previously posted to the Norwegian Embassy in Madrid and the Norwegian Delegation to the Council of Europe in Strasbourg, before assuming the position of Ambassador in The Hague, she held the position of Director-General for External and Internal Services within the Ministry.

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Dr William E. M. Lowe William E. M. Lowe is a political methodologist specialising in statistical text analysis with applications to international relations and comparative politics, based at Princeton University. He trained as a philosopher at the University of Warwick and the University of Wisconsin at Madison. William was then awarded an M.Sc. and Ph.D. in cognitive science from Edinburgh University. He since worked at Tufts, Harvard University, Trinity College, Dublin, the University of Mannheim, and the University of Nottingham – where he collaborated with the Human Rights Law Centre in the development of the National Implementing Legislation Database. Dr Nicola Palmer Nicola Palmer is a lecturer in criminal law at the Dickson Poon School of Law, King’s College London. Her book, ‘Courts in Conflict: Interpreting the Layers of Justice in Post-Genocide Rwanda’ was published by oup in early 2015. She has previously written on the transfer of cases from the ictr to the Rwandan national courts and the domestic interpretations of international law in Rwanda. Nicola received her D.Phil in law from the University of Oxford in 2011. Prior to this, she worked at the International Criminal Tribunal for Rwanda, following her undergraduate in law and economics at Rhodes University, South Africa. Ms Natacha Schauder Natacha Schauder is currently the Acting Head of Operations in the Victims and Witnesses Unit of the Registry and is responsible for the unit’s legal team. Natacha has a Master’s degree in Human Rights Law from the Strasbourg Law Faculty. After teaching as a Professor-Assistant for four years at the Law Faculty and the Institute of Political Studies, Natacha worked for four years as a lawyer at the European Court of Human Rights. Natacha joined the icc in 2007 – first as a lawyer in the Court Management Section of the Registry, and later on in the Victims and Witnesses Unit. Professor Göran Sluiter Göran Sluiter specialises in criminal law, international law and international criminal law. Göran represents clients in all of these areas of law, in national and international procedures. His approach to cases leverages his years of experience as a deputy judge, and his academic knowledge of the subject gained in his additional role as Professor at the University of Amsterdam.

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Ms Lorraine Smith-van Lin Lorraine Smith-van Lin is the former Director of the International Bar Association’s International Criminal Court Programme with responsibility for monitoring the cases and developments at the icc. She currently works as an independent legal consultant on international criminal justice issues. Mr Stanislas Talontsi Stanislas Talontsi is a Ph.D. Researcher at the Amsterdam Center for Inter­ national Law, University of Amsterdam. Supervised by Professor Göran Sluiter, his research explores the mechanisms to enforce cooperation in the arrest and surrender of suspects to the icc. Mr Pascal Turlan Pascal Turlan is Judicial Cooperation Adviser and Head of Judicial Cooperation in the Office of the Prosecutor at the International Criminal Court. He previously worked as a Legal Adviser at the French Ministry of Justice. Pascal holds an ll.m. from the College of Europe and lectures on international criminal law and justice at Sciences Po in Paris.

Introduction Olympia Bekou and Daley J. Birkett Securing cooperation represents one of the key challenges to the contemporary activities of the icc. The ability of the Court to function effectively is entirely dependent on cooperation from States, international and regional organisations as well as civil society. The icc does not have an enforcement mechanism of its own and needs to rely on national authorities for the execution of its requests. The trials and tribulations the cooperation regime poses for the effective functioning of the Court have become a new frontline issue. In September 2014, 26 experts from academia, government, civil society and the Court were invited to the University of Nottingham for a two-day workshop to explore current challenges affecting the Court’s international cooperation regime.1 This collection stems from the fruitful discussions that took place during the event as well as recent developments in this area. icc State Parties and other States under an obligation to cooperate (for example, pursuant to a unsc Resolution or an ad hoc arrangement) are expected to fulfil this responsibility.2 According to the icc Statute, international cooperation extends to such areas as preserving and providing evidence, sharing information, securing the arrest and surrender to the Court of those for whom arrest warrants have been issued and protecting victims and witnesses.3 Indeed, the importance of cooperation has been recognised by the asp on a regular basis since 2006.4 This volume therefore addresses matters of law and practice vital to the future of the Court as well as its current operation. To this end, the following expert contributions not only shed light on these important issues of international criminal justice, but also aim to offer timely and topical commentaries on recent law and practice in the area of cooperation between State authorities, regional organisations, civil society and the Court. It is the hope of the editors to offer an account of the icc cooperation regime from an expert perspective. The collection consequently draws upon the vast experience of its contributors, all of whom are active scholars and/or 1 University of Nottingham Human Rights Law Centre (Hrlc), ‘Expert Workshop on Cooperation and the International Criminal Court: Report’, hrlc, 18–19 September 2014, available at: www.nottingham.ac.uk/hrlc/newsholding/news-2015/cooperation-workshop -report-published.aspx (last accessed 25 August 2015). 2 See Art. 86 icc Statute. 3 See Part ix icc Statute. 4 See e.g. asp, Strengthening the International Criminal Court and the Assembly of States Parties, 1 December 2006, icc-asp/5/Res.3 at paras 30–36.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_002

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practitioners. The chapters that follow address a number of topics pertaining to cooperation with the Court, including the political realities and practical challenges surrounding the cooperation regime, the issue of non-cooperation, the role of global civil society, the eu and the asp, the freezing, seizure and transfer of assets, as well as how technology-driven tools can strengthen cooperation with the Court. In Chapter 1, Annalisa Ciampi provides a detailed overview of the icc cooperation regime. First, she discusses its statutory basis and the limitations of the obligation to cooperate with the Court, before exploring how it has operated in practice in the situations brought before the icc. Dividing her analysis into situations brought by State Parties to the icc Statute, situations referred to the Court by the unsc and investigations initiated by the Prosecutor proprio motu, she questions the successes of the icc cooperation regime. The author concludes that politics and policy decisions are at least as significant, if not more crucial, for effective cooperation with the Court than the legal schema contained in the icc Statute. In Chapter 2, Pascal Turlan offers a first-hand insight into the icc cooperation regime from the viewpoint of the otp. Discussing practical challenges facing the otp in securing the cooperation necessary for successful investigations, the author identifies several key actors with which the otp interacts in the course of its activities. In particular, he details the role of States and international, regional and non-governmental organisations as useful partners to this end. Reflecting on current investigations and lessons learned from the ad hoc Tribunals with regard to arrest and surrender, financial investigations and the protection of witnesses, the chapter offers a unique perspective into the challenges faced by the otp in practice. Turning to the ways in which the icc is empowered to respond to non-­ cooperation, in Chapter 3, Göran Sluiter and Stanislas Talontsi analyse the legal mechanisms available under the icc Statute to secure effective cooperation with the Court. The authors identify a three-step approach to this end. First, they examine the procedure culminating in a judicial finding of non-­compliance. Second, the authors discuss the application of this procedure in practice, including due process considerations, the possibility for appeal and the need for a reasoned decision. Finally, they explore the enforcement mechanisms available to the asp and unsc after a finding of non-compliance is made. Sluiter and Talontsi conclude that the issue of non-cooperation must be prioritised and depoliticised to reduce instances thereof. Continuing the examination of the icc cooperation regime from a political perspective, in Chapter 4, Lorraine Smith van-Lin conducts a comparative examination of the approach taken by the icc as regards non-compliance in the Al Bashir and Kenyatta cases. First, the author provides a detailed factual overview of the cases against these two

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African Heads of State before exploring the applicable legal framework under the icc Statute, with particular emphasis on the ability of the icc to make findings of non-compliance and to refer matters to the asp and unsc. Arguing that politics have played a significant role in the difficulties faced in these cases, the author concludes that States, international organisations and civil society must work collectively in order to ensure the continued relevance of the icc. The focus then shifts to the interaction between competent State authorities and the Court. In Chapter 5, Anne-Aurore Bertrand and Natacha Schauder provide a first-hand account of the practical obstacles faced by the icc Registry in securing cooperation from States. They begin by reviewing the forms of cooperation provided by States to the Court pursuant to the icc Statute regime, before detailing the specific challenges faced in the recovery of assets, cooperation with actors other than States and the provision of assistance to defence teams. Bertrand and Schauder also discuss the operational hurdles faced by the Registry vis-à-vis the protection of victims and witnesses in addition to the tools available to overcome these challenges, including local protection measures and the Special Trust Fund for Relocation. Continuing the theme of how cooperation affects the operations of the icc, in Chapter 6, Annika Jones discusses the impact of non-cooperation on the efficiency, i.e. the speed and cost-effectiveness, of the icc. Based on an examination of the Situations in Darfur, Sudan and Kenya, the author analyses the effects of non-cooperation on the ability of the Court to function effectively in its activities. Jones proceeds to examine the converse: namely the extent to which the inefficiency of the icc can affect the political will of States to cooperate with the Court. The author concludes that the existing cycle – according to which inefficiency both leads to, and is caused, at least in part, by non-cooperation – necessitates a concerted response both from within the Court and the asp in order to promote efficiency. In Chapter 7, Nicola Palmer explores the relationship between the way in which the icc has interpreted the foundational principle of complementarity enshrined in the icc Statute and cooperation, with a particular focus on consultation between States and the Court. First, the author explains the approach taken by the icc when determining the admissibility of a case before examining the ways in which a State can ensure that cases are tried at the domestic level through consultations and information sharing. Finally, based on her recent extensive empirical research conducted in the ictr, domestic courts in Rwanda and gacaca courts, Palmer concludes that legal cultures must be taken into account during this process. The examination of the practical relationship between State authorities and the icc continues in Chapter 8, where Carla Ferstman details the challenges encountered when freezing, seizing and

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transferring assets for the purpose of reparations. The author begins by examining the applicable legal framework for the recovery of the assets of accused persons under the icc Statute regime. Ferstman identifies a number of obstacles in the enforcement of fines and forfeiture orders post-conviction as well as when executing orders for reparation. The author concludes that the challenges faced in the icc regime for the freezing, seizure and transfer of assets render the possibilities of success limited at best. In response, she suggests that cooperation between the icc, States and civil society is essential to rectify these issues. The following chapters provide a practical insight into cooperation from a State perspective. In Chapter 9, Ambassador Anniken Krutnes reflects on her three years as Facilitator of the Informal Working Group on Cooperation of The Hague Working Group, a body established by the Bureau of the asp in 2004. Ambassador Krutnes discusses the inner workings and focus areas of the Working Group during her tenure as Facilitator from February 2012 until December 2015. Detailing the subjects discussed by this body during her time as Facilitator, which included implementing legislation pertaining to cooperation, sharing of best practices, asset recovery, non-essential contacts and arrest strategies, the chapter provides invaluable first-hand insight into the operational realities facing this influential mechanism in the asp. Turning from the asp, the view from an individual State is provided in Chapter 10, where Gérard Dive and Julie de Hults scrutinise the Belgian system for cooperation with the icc, including the role of the key organ within this system, namely the Central Authority for Cooperation with the icc and the other International Criminal Tribunals. Based on their direct experience, the authors discuss the tools to which this multifaceted body has recourse when in receipt of requests for cooperation from the Court, including bilateral agreements on enhanced cooperation. Having noted the rules adopted by Belgian legislation as regards the postponement and refusal of requests for assistance, Dive and de Hults suggest a number of ways in which other States can learn from the Belgian approach to cooperation with the icc. Following this insight, the perspective of a regional organisation is provided in Chapter 11, where Christian Behrmann discusses the manner in which the eu supports cooperation with the Court. According to the author, for the eu, full cooperation is a prerequisite for the effective functioning of the Court. To this end, Behrmann details how the eu and its Member States undertake consistent action to encourage full cooperation with the icc, including the prompt execution of arrest warrants. He also discusses how the response of the eu to non-cooperation by third States is particularly focused on how the eu can respond to impending instances of non-cooperation, to persisting or repeated cases thereof and on when to avoid

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non-essential contacts with those individuals subject to arrest warrants issued by the icc. The emphasis then shifts to how the icc cooperation regime can be further  strengthened. In Chapter 12, Matthew Cannock explores the role of civil  society, past and present, in the icc international cooperation regime. Acknowledging that the icc Statute only obligates its State Parties to cooperate with the Court, the author discusses the inherent weaknesses in the decentralised statutory regime. In response to these shortfalls, Cannock argues that civil society has played a vital and multifaceted role in the project of international criminal justice from the outset of the discussions that led to the adoption of the icc Statute. He posits that civil society is able to strengthen cooperation with the Court by, among other less coercive measures, promoting political will through activism and highlighting acts of non-compliance. Continuing the subject of how the icc cooperation regime can be strengthened in practice, in Chapter 13, Emilie Hunter examines the way in which ‘managerial compliance’ is able to support the icc cooperation regime. Contrasted with coercive mechanisms used to secure compliance, the author notes that managerial compliance aims to promote adherence to the law before, or at the time, it is breached. Hunter identifies rule interpretation activities and capacity building as examples of managerial compliance techniques that can be used in order to promote rule adherence as regards the icc cooperation regime. Arguing that such mechanisms can be used to secure compliance with international treaties, Hunter concludes that success is more likely where a State is willing but less able to cooperate with the Court. In the final chapter, Olympia Bekou, William E. M. Lowe and Daley J. Birkett introduce the Cooperation and Judicial Assistance Database (cjad), a specialised database on national implementing legislation pertaining to cooperation, which was created at the request of the Informal Working Group on Cooperation of The Hague Working Group. The authors discuss the processes underpinning the technical development of cjad. In particular, they observe that documents are broken down to fine-grain decompositions at paragraph level, based on an extensive list of purposely-designed keywords, which increases the accuracy of search results for users, enabling detailed searches on national legislation relating to cooperation. The late Professor Antonio Cassese described the icty as ‘a giant without arms and legs [which] needs artificial limbs to walk and work’.5 He identified these artificial limbs as State authorities, without which the Tribunal could not 5 Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of International Law 2 at 13.

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fulfil its functions.6 This analogy is equally applicable to the icc, which, like the icty, depends on national authorities to enable its effective functioning. The well-known simile employed by Cassese undoubtedly remains true. However, throughout this volume, it is evident that the icc is not only reliant on States for cooperation, but also on international and regional organisations and civil society, acting in concert. It is the hope of the present editors that this collection will provide readers with a valuable account of how these ‘arms and legs’ operate together, in theory and practice. 6 Ibid.

Legal Rules, Policy Choices and Political Realities in the Functioning of the Cooperation Regime of the International Criminal Court Annalisa Ciampi 1 Premise After almost 15 years of its entry into force, the cooperation regime under the icc Statute has been put to test in roughly twenty cases in eight different situations. The time is thus now ripe for looking into what has, and what has not, worked in practice. This chapter is structured along the following lines. First, it highlights the basic features of the cooperation regime envisaged by the drafters of the icc Statute. It next examines the practice of the icc and assesses the effectiveness of international cooperation since its establishment. Finally, it inquires into whether different rules might have yielded different results and provocatively concludes that the limits of the icc cooperation regime lie in the political realities and policy choices of the Court, rather than in the legal regime designed by the icc Statute. 2

The Basic Features of the International Criminal Court Cooperation Regime

As is well known, the icc lacks an enforcement mechanism to apprehend suspects or to gather evidence. It is like ‘a giant without arms and legs’, which ‘needs artificial limbs to walk and work’.1 In all of its activities, therefore, the Court relies on international cooperation, in particular from States. 1 The expression comes from Cassese, who so famously defined the icty, but can be equally applied to the icc. See Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of International Law 2 at 13. For an overview of the icc cooperation regime in the most recent literature, see Demirdjian, ‘Armless Giants: Cooperation, State Responsibility and Suggestions for the icc Review Conference’ (2010) 10 International Criminal Law Review 181; Mutyaba, ‘An Analysis of the Cooperation Regime of the International Criminal Court and Its Effectiveness in the Court’s Objective in Securing Suspects in Its Ongoing Investigations and Prosecutions’ (2012) 12 International Criminal Law Review 937; Rastan, ‘Testing Co-Operation: The Inter­ national Criminal Court and National Authorities’ (2008) 21 Leiden Journal of International

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A Scope of Application The general obligation of States to cooperate fully with the Court in its investigation and prosecution is laid down in Art. 86 icc Statute and further articulated in the subsequent provisions of Part ix icc Statute, one of the most detailed parts of the icc Statute, entitled ‘International Cooperation and Judicial Assistance’. State Parties will use procedures of national law in meeting the Court’s requests for cooperation under Art. 88 icc Statute. As a result, a State Party must have procedures under national law for all the listed forms of cooperation. The icc Statute essentially bifurcates the assistance the Court may request of States into two categories: requests for the arrest and surrender of persons to the Court, and requests for everything else the Court might need to conduct investigations and prosecutions. Conspicuously absent is any subpoena power. The importance of international cooperation for arrest and surrender can hardly be overstated, at least for two reasons. First of all, the Court cannot directly enforce its warrants of arrest.2 Moreover, the icc Statute does not allow trials in absentia but requires that ‘[t]he accused shall be present during the trial’.3 Cooperation can be equally essential for the so-called other forms of assistance, which include the taking of evidence and the protection of victims and

Law 431; Wald, ‘Apprehending War Criminals: Does International Cooperation Work?’ (2012) 27 American University International Law Review 229. See also Kaul, ‘The International Criminal Court: Current Challenges and Perspectives’ (2007) 6 Washington University Global Studies Law Review 575; Weiner, ‘Prudent Politics: The International Criminal Court, International Relations, and Prosecutorial Independence’ (2013) 12 Washington University Global Studies Law Review 545. 2 No provision in the icc Statute envisages the Prosecutor’s power to execute a warrant of arrest directly for the purpose of transferring a person to the Court. A proposal to this effect was rejected in the course of the preparatory works. It would thus be difficult to construe any such power as an implied power of the Prosecutor by way of interpretation of the icc Statute. Ciampi, ‘Current and Future Scenarios for Arrest and Surrender to the icc’, (2006) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 719 at 724. 3 Art. 63(1) icc Statute. Rule 134 quater, icc rpe, as amended by the asp in November 2013, allows those mandated to fulfill ‘extraordinary public duties at the highest national level’ to request excusal from presence at trial and to be represented by their legal counsel. However, it is for icc trial judges to decide on any request taking into account a number of factors, including the interests of justice and the nature of the hearing in question. Furthermore, the new rule only applies for persons under summons to appear. The possibility of allowing the accused to appear via video in the courtroom was also part of this rule change (see also Rules 134 bis and 134 ter icc rpe).

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witnesses.4 Not only is the Prosecutor able to undertake investigative steps on the territory of a State largely through that State’s cooperation;5 international cooperation is also vital for the Prosecutor to be able to prove an accused’s guilt beyond any reasonable doubt, for this is the standard of proof that must be met at trial.6 The Court further relies on State cooperation for the enforcement of its forfeiture orders and fines as well as for the enforcement of its sentences of imprisonment.7 It is finally worth recalling that the jurisdiction of the icc is not limited to the most serious crimes of concern to the international community as a whole (genocide, crimes against humanity, war crimes and aggression),8 but also includes offences against the administration of justice, such as ‘[g]iving false 4 The means of witness protection available to the Court may be divided into two basic categories: orders for the physical protection of witness under protective orders, and orders for the protection of witnesses during the evidentiary and testimonial phases of icc proceedings (i.e., the ability to order in camera proceedings at trials, creative evidentiary procedures, special measures, and other protective measures). The second category may be further subdivided to include: taking evidence within the territories of State Parties during the icc proceedings (as parts of proceedings may be ordered conducted by ‘special means’ and testimony may be provided by written transcript); and/or provision within the territories of State Parties of electronic or audio testimony at trial. See Arts. 68, 69, 93(1)(b) and 93(1) (j) icc Statute. In addition to the general obligation to comply with the requests, Art. 99(1) icc Statute requires that the requests be executed in the manner specified therein unless that is prohibited by law. 5 The Prosecutor is endowed with limited powers to conduct on-site investigations in the exceptional circumstances provided for under Art. 57(3)(d) icc Statute. This limitation upon the Prosecutor’s powers was adopted as a compromise in the diplomatic negotiations of the icc Statute. See Ciampi, ‘Other Forms of Cooperation’ in Cassese, Gaeta and Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: oup, 2001a) 1705–1747. 6 Art. 66 icc Statute (entitled ‘Presumption of innocence’) reads as follows: ‘1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. 2. The onus is on the Prosecutor to prove the guilt of the accused. 3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt’. For the implications thereof, see, in particular icc, Prosecutor v Uhura Muigai Kenyatta ICC-01/09-02/11 (2011–2015) infra Section 3.C. 7 Part x icc Statute, addresses the enforcement of the icc’s sentences and orders. Art. 109 icc Statute, specifically imposes a duty on State Parties to enforce fines and forfeiture measures as penalties ‘in accordance with the procedure of their national law’. The role of each State in the enforcement of sentences of imprisonment is instead voluntary and dependent upon a declaration of willingness to accept sentenced persons (see Art. 103 icc Statute). 8 See Arts. 5–8 icc Statute.

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testimony when under an obligation […] to tell the truth’; ‘[p]resenting evidence that the party knows is false or forged’; or ‘[c]orruptly influencing a witness’.9 The cooperation regime extends to these proceedings as well. State Parties may be asked to arrest and surrender suspects, investigate and collect evidence, protect witnesses, enforce icc orders for fines and forfeiture and, at times, prosecute those who have committed offences against the administration of justice. The conditions for providing international cooperation to the Court with respect to its proceedings in relation to these offences are ‘governed by the domestic laws of the requested State’. As will be seen,10 a number of cases relating thereto are already pending before the Court. B A Treaty-Based Obligation That the obligation to cooperate with the Court finds its base in the icc Statute implies that only State Parties are under an obligation to cooperate fully with the icc. At the time of writing, the icc Statute counts 123 State Parties. Although this is a remarkable figure, participation is far from universal.11 The Court may receive cooperation from non-State Parties, which may enter into arrangements or agreements with the Court to provide cooperation. Although the icc Statute is not open to the participation of international organisations or other entities (such as peacekeeping or peace-enforcement forces), they also can be brought into relationship with the Court. Foremost among the international organisations that can provide important support to the Court is, of course, the un.12 9 10

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Ibid, Art. 70 icc Statute. See the Situations of the car and Kenya, infra, respectively, Sections 3.A and 3.C. On their disproportionate relevance with respect to the whole of the Court’s case-load, see infra Section 6. 34 are African States, 19 are Asia-Pacific States, 18 are from Eastern Europe, 27 are from Latin American and Caribbean States, and 25 are from Western European and other States. See the Court’s website for an updated list of State Parties to the icc Statute: icc, ‘The States Parties to the Rome Statute’, icc, available at: www.icc-cpi.int/en_menus/asp/ states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute .aspx (last accessed 25 February 2016). On 4 October 2004, the President of the icc and the un Secretary-General concluded the Negotiated Relationship Agreement between the International Criminal Court and the United Nations (ICC-ASP/3/Res.1). This Agreement provides for institutional relations, cooperation and judicial assistance between the Court and the un while reaffirming the independence of both organisations. Ciampi, ‘La Cour pénale internationale et les Nations Unies’ in Fernandez and Pacreau (eds), Statut de Rome de la Cour pénale internationale. Commentaire article par article (Paris: Pedone, 2012) 77–90.

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Another implication of the Court being established by treaty is that the obligation of State Parties to cooperate therewith does not override conflicting obligations vis-à-vis a non-State Party or an international organisation. Several provisions in the icc Statute – most notably Art. 90 icc Statute on competing requests for surrender and Art. 98 icc Statute on cooperation with respect to waiver to immunity and consent to surrender13 – are an acknowledgement thereof. In both respects, the icc stands in sharp contrast to the ad hoc Tribunals – the icty and the ictr – established by the unsc in 199314 and 1994,15 respectively. Because of the nearly universal participation of States to the un Charter, the obligation to cooperate with the icty and the ictr applied almost universally and, by virtue of Art. 103 un Charter,16 prevailed over any conflicting obligations. This twofold characterisation did not necessarily make cooperation effective. As will be shown below,17 neither universal participation nor an obligation backed by the unsc result per se in a more compelling cooperation regime. C A Relative (Not Absolute) Obligation The current cooperation regime is generally described as a hybrid model encompassing characteristics of both the horizontal and the vertical models.18 As mentioned above, Art. 86 icc Statute imposes a general obligation upon States to fully comply with the Court in its investigations and prosecutions. The interpretation of the concrete duties enshrined in Part ix icc Statute for the gathering of evidence and for the arrest and surrender of persons, therefore,

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Tladi, ‘Cooperation, Immunities, and Article 98 of the Rome Statute: The icc, Interpretation, and Conflicting Norms’ (2012) 106 American Society of International Law Proceedings 307. unsc Res 827, 25 May 1993, S/RES/827 (1993). unsc Res 955, 8 November 1994, S/RES/955 (1994). Art. 103 un Charter provides: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. Infra Section 5. Much has been written about the nature of the cooperation schema under the icc Statute and the different types of cooperation models under international law. Under the horizontal model, States cannot be subjected to mandatory cooperation with the icc. The vertical model attaches less weight to State interests and more weight to the duty to cooperate with the Court. It allows the issuance of binding orders to States and implementation of enforcement mechanisms for non-compliance with the Court’s requests.

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should be guided by the overarching obligation to fully cooperate contained in this provision.19 On the one hand, the obligation of State Parties to cooperate with the icc is general but not absolute. States may refuse to comply with the Court’s cooperation requests when, inter alia, they receive competing requests for the extradition of a suspect for the same conduct for which the Court is seeking that person’s surrender, the cooperation request is prohibited by the State’s national law, the cooperation request would make the State Party act inconsistently with its obligations under international law or diplomatic immunity of a person or property of a third State, the cooperation request has problems that may impede or prevent the State Party from executing the request, there is a concern that suspects’ human rights will be violated once they are arrested and surrendered to the court or a State puts forward a sovereignty claim. These exceptions are the result of the compromises reached in the diplomatic negotiations leading to the adoption of the icc Statute. Much academic debate has been devoted to the implications of the limitations to the obligation to cooperate.20 As the analysis of the Court’s practice will show, however, fewer exceptions, or even no exception whatsoever, would hardly make cooperation with the icc more effective. The major obstacles to the smooth functioning of the Court’s cooperation regime lay elsewhere. On the other hand, in many respects, the icc Statute reflects the lowest common denominator. Many delegations would have been prepared to go beyond the duties contained thereunder. It is not unlikely, therefore, that those States will be willing to go beyond what is required under Part ix icc Statute. Indeed, some implementing legislation does offer voluntary cooperation to

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This alludes to the recognised interpretation rule of effet utile. The latter rule may also be of use when it comes to concretise the openly-worded compromises which Part ix icc Statute contains wherever delegations were unable to reach agreement in detail. Ciampi, ‘The Obligation To Cooperate’ in Cassese Gaeta and Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: oup, 2001b) 1607–1638. Mochochoko, ‘International Cooperation and Judicial Assistance’ in Lee (ed), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiation, Results (The Hague-London-Boston: Kluwer Law International, 1999) 305; Swart, ‘Arrest and Surrender’ in Cassese, Gaeta and Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: oup, 2001) 1639; Oosterveld, Perry, McManus ‘The Cooperation of States with the International Criminal Court’ (2002) 25 Fordham International Law Journal 767; Sluiter, ‘The Surrender of War Criminals to the International Criminal Court’ (2003) 25 Loyola of Los Angeles International & Comparative Law Review 605.

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the Prosecutor.21 Even State Parties which were rather reluctant during the negotiations may be prepared to cooperate in an enhanced manner for the purpose of a concrete investigation. A requested State may also be prepared to voluntarily grant enhanced cooperation for one or more categories of investigative measures, be it for the purpose of a concrete investigation or more generally. Part ix icc Statute should thus be viewed as setting out the minimum obligations. It does not preclude the capacity of State Parties to go beyond what is required or to supplement and further enhance the level of cooperation demanded by the icc Statute. D The Context for the Operation of the Cooperation Regime Last, but not of least importance for the assessment of the icc cooperation regime, is the nature of the Court’s jurisdiction and the conditions for its exercise. The jurisdiction of the Court extends ratione materiae to ‘the most serious crimes of concern to the international community as a whole’.22 The icc Statute defines genocide, crimes against humanity and war crimes as crimes that can only be committed by State organs or with the involvement of a State apparatus and by the parties to an international or internal armed conflict.23 The crime of aggression is, by definition, an act committed ‘by a person in a position effectively to exercise control over or to direct the political or military action of a State’.24 This has to be coupled with the stated strategy of the Prosecutor that, ‘as a general rule, the Office of the Prosecutor should focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organisation allegedly responsible for those crimes’.25 21

icc-otp, ‘Informal expert paper. Fact-finding and investigative functions of the Office of the Prosecutor, including international co-operation’, icc, 2003, available at: www.icc-cpi.int/ en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/ network%20with%20partners/informal%20expert%20consultations/Pages/informal% 20expert%20consultations.aspx (last accessed 25 February 2016) at para 98. 22 Preamble, icc Statute at para 4. 23 Arts. 6–8 icc Statute. 24 Art. 8 bis icc Statute, was introduced by the first Review Conference of the Rome Statute in 2010. See icc, Review Conference, 31 May-11 June 2010, RC/11. 25 See icc-otp, ‘Paper on some policy issues before the Office of the Prosecutor’, icc, September 2003, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20 court/office%20of%20the%20prosecutor/policies%20and%20strategies/Pages/ paper%20on%20some%20policy%20issues%20before%20the%20office%20of%20 the%20prosecutor.aspx (last accessed 25 February 2016). Emphasis in the original. This

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The result is that the cooperation needed in the Court’s investigations and prosecutions will be, in the first place, the cooperation of the State involved in the commission of the alleged crimes. This State generally coincides with the territorial State, where most evidence is located. Moreover, in accordance with the preconditions to the Court’s exercise of jurisdiction, either the State on the territory of which the conduct in question occurred or the State of which the person accused of the crime is a national (or both) will be Parties to the icc Statute (or will have accepted the jurisdiction of the Court and thereby also the obligation to cooperate with the Court).26 This implies that the State mostly connected with (and generally involved in) the commission of the crimes in question will be under an obligation to comply with the Court’s requests in accordance with the icc Statute. In the case of unsc referral – where these preconditions do not apply – the State most directly connected with the alleged crimes is under a qualified obligation to cooperate with the icc because of the relevant resolution adopted by the unsc under Chapter 7 un Charter.27 As will be seen,28 the connection between the preconditions to the Court’s exercise of jurisdiction and the Court’s trigger mechanisms pursuant to Art. 13 icc Statute has implications on the functioning of the cooperation regime under the icc Statute. The operation of the cooperation schema is also in constant and continuous relationship with the complementarity principle underpinning the entire icc Statute regime.29 In accordance with this principle, a case is only admissible

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policy paper defines a general strategy for the otp, highlights the priority tasks to be performed and determines an institutional framework capable of ensuring the proper exercise of its functions. See also icc-otp, ‘Policy Paper on Preliminary Examinations’, icc, November 2013, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20 court/office%20of%20the%20prosecutor/policies%20and%20strategies/Pages/ draft%20policy%20paper%20on%20preliminary%20examinations.aspx (last accessed 25 February 2016). Art. 12 icc Statute. This is notably the case of Côte d’Ivoire and most recently of Ukraine. In April 2014, Ukraine accepted icc jurisdiction with respect to alleged crimes committed in its territory between 21 November 2013 and 22 February 2014. See Resolutions: unsc Res 1593, 31 March 2005, S/RES/1593 (2005a) and unsc Res 1970, 26 February 2011, S/RES/1970 (2011); where the unsc referred to the Prosecutor of the icc the situations of Darfur (Sudan) and Libya, respectively (infra Section 3.B). Infra Section 4. On the principle of complementarity – a cornerstone of the icc Statute – see Almqvist, ‘Complementarity and Human Rights: A Litmus Test for the International Criminal Court’ (2008) 30 Loyola of Los Angeles International and Comparative Law Review 335; Bergsmo, Bekou and Jones, ‘Complementarity after Kampala: Capacity Building and the icc’s Legal Tools’ (2010) 2 Goettingen Journal of International Law 791; Brighton, ‘Avoiding

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before the icc where the State(s) concerned is (or are) unwilling or unable genuinely to carry out the investigation or prosecution.30 The Court’s relationship with the State exercising jurisdiction under complementarity is critical to the functioning of the cooperation regime. This is true in particular in relation to the territorial State, but also, to some extent, with respect to a non-territorial State exercising jurisdiction under the complementarity regime.31

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Unwillingness: Addressing the Political Pitfalls Inherent in the Complementarity Regime of the International Criminal Court’ (2012) 12 International Criminal Law Review 629; Burke-White, ‘Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice’ (2008) 49 Harvard International Law Journal 53; Carter, ‘Principle of Complementarity and the International Criminal Court: The Role of Ne Bis in idem’ (2010) 8 Santa Clara Journal of International Law 165; Carter, ‘Future of the International Criminal Court: Complementarity as a Strength or a Weakness?’ (2013) 12 Washington University Global Studies Law Review 451; Hansen, ‘Critical Review of the icc’s Recent Practice Concerning Admissibility Challenges and Complementarity’ (2012) 13 Melbourne Journal of International Law 217; Heller, ‘Sentence-Based Theory of Complementarity’ (2012) 53 Harvard International Law Journal 201; Jurdi, ‘Some Lessons on Complementarity for the International Criminal Court Review Conference’ (2009) 34 South African Yearbook of International Law 28; Keller, ‘Practice of the International Criminal Court: Comments on the Complementarity Conundrum’ (2010) 8 Santa Clara Journal of International Law 199; Kulundu, ‘The Rome Statute of the International Criminal Court and Complementarity: What Lurks in the SubText?’ (2009) 18 Lesotho Law Journal 283; Moffett, ‘Reparative Complementarity: Ensuring an Effective Remedy for Victims in the Reparation Regime of the International Criminal Court’ (2013) 17 The International Journal of Human Rights 368; Newton, ‘The Complementarity Conundrum: Are We Watching Evolution or Evisceration?’ (2010) 8 Santa Clara Journal of International Law 115; Nouwen, ‘Complementarity in Practice: Critical Lessons from the icc for R2P’ (2010) 21 Finnish Yearbook of International Law 53; Tillier, ‘icc Prosecutor and Positive Complementarity: Strengthening the Rule of Law’ (2013) 13 International Criminal Law Review 507; Vaid, ‘What Counts as “State Action” under Article 17 of the Rome Statute? Applying the icc’s Complementarity Test to NonCriminal Investigations by the United States into War Crimes in Afghanistan’ (2011) 44 New York University Journal of International Law and Politics 573. Art. 17 icc Statute. The Prosecutor may need to investigate a State’s investigative and prosecutorial conduct in order to determine whether the situation should remain under the jurisdiction of that State or whether jurisdiction should instead be assumed by the icc. The standards are unambiguously legal standards: nevertheless, there may need to be political discussions and arrangements undertaken in order to facilitate decisions based on those legal standards. icc-otp, ‘Informal expert paper: Fact-finding and investigative functions of the office of the Prosecutor, including international co-operation’ (2003) supra n 21 at paras 35 and 37. The non-exercise of jurisdiction by a territorial State does not alter the primacy of other States vis-à-vis the icc. Jurisdictional bases other than territory, such as active nationality as well as passive nationality and universal jurisdiction, can play an important role in the

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Although inability to prosecute and inability to cooperate do not necessarily coincide, the two concepts are interrelated. Where inability to prosecute derives from a total or substantial collapse of the national judicial system, this will often be at the origin of the State’s inability to comply with the Court’s requests for cooperation. The connection is self-evident in a failed State scenario. Even more obvious is the relationship between unwillingness to prosecute and unwillingness to cooperate. The exception is the change of government scenario, where the new government might be unwilling to prosecute the crimes of the previous regime but willing to cooperate with the Court to the same effect.32 3

The International Criminal Court Cooperation Regime in Practice

Over twenty cases have been brought before the icc since its establishment, with nine investigations currently ongoing in eight different situations.33 The extent to which international cooperation has (or has not) worked in practice will be assessed by examining first the situations of State referral (rectius, selfreferrals), then the situations referred by the unsc, and, finally, those in which investigations were initiated proprio motu by the Prosecutor. For obvious reasons,34 the focus will be on State cooperation for the arrest of suspects and fight against impunity. Under the complementarity principle, a genuine investigation by such third States would preclude the Court from exercising jurisdiction, provided they are able to secure the surrender of offenders and obtain access to evidence. The availability of and access to witnesses, the presence of the alleged perpetrator on a State’s territory and the independence and impartiality of the judiciary are important elements in determining a State’s prospect for an effective investigation and prosecution. See Bekou and Cryer, ‘The International Criminal Court and Universal Jurisdiction: A Close Encounter’ (2007) 56 International and Comparative Law Quarterly 49; Knoops and Amsterdam, ‘The Duality of State Cooperation within International and National Criminal Cases’ (2006) 30 Fordham International Law Journal 260. 32 See the Situation of Côte d’Ivoire, infra Section 3.C. 33 The icc Statute entered into force on 1 July 2002. The otp opened its first investigation in the drc on 23 June 2004 and subsequently in the following Situations: Uganda; the car; Darfur, Sudan; Kenya; Libya; Côte d’Ivoire; Mali; and the car ii. On 27 January 2016- when this book went to press- Pre-Trial Chamber I authorised the Prosecutor to proceed with an investigation for the crimes within the ICC jurisdiction, allegedly committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008. The otp is currently conducting preliminary examinations in a number of Situations, including: Palestine, Ukraine, Iraq, Afghanistan, Colombia, Guinea and Nigeria. 34 In the absence of surrender (voluntary or following arrest), there can be no trial and proceedings remain stalled. See Art. 63(1) icc Statute, supra n 3 and corresponding text.

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their surrender to the Court. Where relevant, however, compliance (or lack thereof) with requests for other forms of assistance will also be reviewed. A Situations of Self-Referrals The Situation in Uganda was the first to be referred to the Prosecutor in December 2003. The Ugandan Government referred the situation concerning the crimes committed in its territory by the Lord’s Resistance Army (lra). In 2005, Pre-Trial Chamber ii issued arrest warrants for lra leader Joseph Kony and his commanders, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya. Pending the adoption of legislation implementing the icc Statute at the national level, the Government of Uganda concluded an agreement on judicial cooperation with the otp.35 In 2010, the Ugandan Parliament passed the International Criminal Court Act, which allows Uganda to prosecute lra leaders for committing genocide, war crimes and crimes against humanity. Moreover, in order to enable Uganda to cooperate with the Court in the investigation and prosecution of persons accused of having committed crimes within the Court’s jurisdiction, the law provides for the arrest and surrender to the icc of persons alleged to have committed crimes within the Court’s jurisdiction and the execution of various requests for assistance to the Court. The law also allows the Court to conduct proceedings in Uganda. The Ugandan People’s Defence Force, the Sudanese People’s Liberation Army (spla) and the Sudanese Armed Forces agreed to conduct joint operations in order to execute the arrest warrants. Ongwen surrendered to us forces and was handed over to the Ugandan contingent of the Africa Union force set up to tackle the lra in the car. He was surrendered to the icc’s custody and transferred to the icc Detention Centre by car authorities on 21 January 2015.36 Despite the efforts of the Ugandan Government and international authorities, the arrest warrants for Otti, Odhiambo and, Kony are still outstanding. Lukwiya is reported to have been killed and, subsequently, the proceedings against him were terminated. The Situation in Uganda can thus be 35

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The agreement between the Ugandan Government and the otp, of September 2004, has never been made public. See Greenawalt, ‘Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court’ (2009) 50 Virginia Journal of International Law 107; Ryngaert, ‘International Criminal Justice and “Jus Post Bellum”: The Challenge of icc Complementarity: A Case-Study of the Situation in Uganda’ (2011) 44 Revue Belge de Droit International 91. Ongwen made his initial appearance before the single Judge of Pre-Trial Chamber ii on 26 January 2015. The opening of the confirmation of charges hearing was scheduled for 21 January 2016.

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described as one where the (territorial) State is willing, although unable, to cooperate with the icc in the arrest and surrender of the suspects. Even Uganda’s willingness to comply with the Court’s requests would be put into question, however, should cases be brought against members of the Ugandan Government. The otp has always indicated that the referral covers all the crimes committed in the region; this therefore remains an open (albeit unlikely) possibility. The drc was the second State Party to refer a situation to the otp,37 in April 2004. The referral concerns the situation of crimes within the jurisdiction of the Court allegedly committed anywhere in the territory of the drc since the entry into force of the icc Statute (1 July 2002). Six cases have been brought in relation to this situation: Prosecutor v Thomas Lubanga Dyilo;38 Prosecutor v Bosco Ntaganda;39 Prosecutor v Germain Katanga;40 Prosecutor v Mathieu Ngudjolo Chui;41 Prosecutor v Callixte Mbarushimana;42 and Prosecutor v Sylvestre Mudacumura.43 Overall, at least in so far as the surrender of suspects is concerned, cooperation has been forthcoming. Lubanga was the first person to be transferred to the icc. He was arrested in Kinshasa by the Congolese authorities. French authorities assisted the Court in transporting Lubanga to The Hague; the participation of France in the surrender of Lubanga is significant, as it shows that the assistance of third States in arresting suspects is equally vital to the Court.44 The drc also played a pivotal 37

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After receiving several communications from individuals and ngos, the Prosecutor had announced in July 2003 that he would closely follow the situation in the drc, indicating that the situation would be a priority for his Office. In September 2003, he informed the asp that he would be prepared to seek authorisation from a Pre-Trial Chamber to start an investigation under his proprio motu powers, but that a referral and active support from the drc would facilitate the work of the otp. icc, Prosecutor v Thomas Lubanga Dyilo Warrant of Arrest, ICC-01/04-01/06-2-tEN (10 February 2006). icc, Prosecutor v Bosco Ntaganda Warrent of Arrest, ICC-01/04-02/06-2-Anx-tENG (22 August 2006). icc, Prosecutor v Germain Katanga Urgent Warrant of Arrest for Germain Katanga, ICC01/04-01/07-1-US-tENG (2 July 2007). icc, Prosecutor v Mathieu Ngudjolo Chui Warrant of Arrest for Mathieu Ngudjolo Chui, ICC-01/04-02/07-1-tENG (6 July 2007). icc, Prosecutor v Callixte Mbarushimana Warrant of Arrest for Callixte Mbarushimana, ICC-01/04-01/10-2-tENG (28 September 2010). icc, Prosecutor v Sylvestre Mudacumura Decision on the Prosecutor’s Application under Article 58, ICC-01/04-01/12-1-Red (13 July 2012). Thomas Lubanga Dyilo, the first person to be brought into the Court’s custody and put to trial, was convicted of committing, as co-perpetrator, war crimes on 14 March 2012, and

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role in the arrests of Katanga and Ngudjolo and their transfer to the icc.45 Ntaganda was the first person to voluntarily surrender to the Court on 22 March 2013; his transfer took place with the cooperation of the Congolese and the Dutch, Rwandan and American authorities.46 Mbarushimana, a national of Rwanda and alleged Executive Secretary of the Forces Démocratiques pour la Libération du Rwanda – Forces Combattantes Abacunguzi (fdlr-fca), was arrested in Paris by the French authorities and transferred to The Hague on a plane by the French authorities (with the drc, Germany and Rwanda cooperating in his arrest).47 Only Mudacumura, another national of Rwanda and alleged Supreme Commander of the fdlr, remains at large. In January 2005, the car, also a State Party to the icc Statute, referred to the icc the crimes committed in its territory after 1 July 2002. A warrant of arrest under seal against Jean-Pierre Bemba Gombo (Bemba) and a request for his provisional arrest addressed to Kingdom of Belgium were issued by Pre-Trial Chamber iii on 23 May 2008.48 The following day, the Belgian authorities ­executed the arrest warrant, with the assistance of the Dutch authorities. Bemba was transferred to the icc on 3 July 2008.49 In connection with the case

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sentenced to a total period of 14 years of imprisonment on 10 July 2012, by Trial Chamber i. On 1 December 2014, the Appeals Chamber confirmed, by majority, the verdict declaring Mr Lubanga guilty and the decision sentencing him to 14 years of imprisonment. Cross and Williams, ‘Recent Developments at the icc: Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui – A Boost for Co-Operative Complementarity?’ (2010) 10 Human Rights Law Review 336. Germain Katanga, commander of the Force de résistance patriotique en Ituri (frpi), was found guilty on 7 March 2014 – the judgment is now final – and sentenced to 12 years imprisonment on 23 May 2014. On 18 December 2012, Trial Chamber ii acquitted Mathieu Ngudjolo Chui – alleged former leader of the Front des nationalistes et intégrationnistes (fni), a militia group operating in the Ituri region – of the charges of war crimes and crimes against humanity and ordered his immediate release. On 21 December 2012, Mathieu Ngudjolo Chui was released from custody. The otp has appealed the verdict. The trial of Bosco Ntaganda, former alleged Deputy Chief of the Staff and commander of operations of the Forces Patriotiques pour la Libération du Congo (fplc), is scheduled for 2 June 2015. Pre-Trial Chamber i declined to confirm the charges against Callixte Mbarushimana on 16 December 2011 and released him from the Court’s custody on 23 December 2011. icc, Prosecutor v Jean-Pierre Bemba Gombo Warrant of Arrest for Jean-Pierre Bemba Gombo, ICC-01/05-01/08-1-tENG-Corr (23 May 2008). Following the confirmation of the charges on 18 September 2009, the Presidency constituted Trial Chamber iii and referred the case of icc, Prosecutor v Jean-Pierre Bemba Gombo to it for the conduct of the subsequent phase of the proceedings: the proceedings are in the trial phase, which started on 22 November 2010, with the submission of evidence now closed.

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Prosecutor v Jean-Pierre Bemba Gombo, four more suspects have been surrendered to the Court: Aimé Kilolo Musamba, also arrested by the Belgian authorities; Jean-Jacques Mangenda Kabongo, arrested by the Dutch authorities; and Fidèle Babala Wandu and Narcisse Arido, arrested by the drc and the French authorities, respectively. The Prosecutor described the car as a textbook example of how cooperation should work.50 The importance of the role of Belgium and other third States in the execution of the arrest warrants, however, needs to be contextualised. Bemba, a Congolese national, was one of four vice-presidents in the drc transitional government from 2003 to 2006, the leader of the Mouvement de Libération du Congo (mlc), a rebel group-turned-political party and, at the time of his arrest, a member of the Senate of the drc. He is believed to have effectively acted as a military commander for war crimes and crimes against humanity during the armed conflict which took place in the car from 25 October 2002 to 15 March 2003, when the car President at the time – AngeFélix Patassé – invited the mlc to come to his country and put down a coup attempt. The opposing forces were, on the one hand, a rebel movement led by François Bozizé, former Chief of Staff of the armed forces of car, and, on the other hand, a segment of the national armed forces which remained loyal to Patassé, allied with the combatants of the mlc led by Bemba. When President Patassé was ousted (March 2013), the government that replaced him with Bozizé as President sought to indict Patassé and Bemba (September 2004). International arrest warrants were issued, but the new government was unable to execute the warrants. The referral to the icc followed thereafter. The other accused – Kilolo (Bemba’s lead counsel), Mangenda (a member of Bemba’s defence team and case manager), Babala (a member of the drc Parliament) and Arido (a defence witness) – are allegedly criminally responsible, together with Bemba himself, for several offences against the administration of justice, including presenting evidence that the party knows to be false or forged to the Court and corruptly influencing a witness to provide false testimony, in the case of Prosecutor v Jean-Pierre Bemba Gombo.51 50

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un Online News Centre, ‘African war crimes suspect transferred to International Criminal Court’, un News Centre, 3 July 2008, available at: www.un.org/apps/news/story.asp? NewsID=27267#.VdhEGPHov3g (last accessed 25 February 2016). On 11 November 2014, Pre-Trial Chamber ii partially confirmed the charges of offences against the administration of justice for Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido and committed the five suspects to trial. The Chamber also rejected the Defence’s requests to stay the proceedings. On the relevance of cases for offences against the administration of justice in the Court’s case-load, see infra Sections 4 and 6.

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The situation in Mali was referred to the Prosecutor by the Government of Mali in July 2012.52 After conducting a preliminary examination of the situation, including an assessment of admissibility of potential cases, the otp determined that there was a reasonable basis to proceed with an investigation in January 2013. At the time of writing, no case has yet been brought by the Prosecutor to engage the cooperation regime under Part ix icc Statute. Finally, in May 2013, a referral was received by the otp from the authorities of the Union of the Comoros, a State Party to the icc Statute, in relation to the 31 May 2010 Israeli interception of a humanitarian aid flotilla bound for the Gaza Strip – the Humanitarian Aid Flotilla’s incident. In November 2014, the Prosecutor announced its decision not to open an investigation for the potential case(s) likely arising therefrom would not be of ‘sufficient gravity’ to justify further action by the icc. The decision was successfully challenged by the Government of the Union of the Comoros.53 On 16 July 2015, Pre-Trial Chamber i granted its request to review the decision and requested the Prosecutor to reconsider her decision not to initiate an investigation.54 B Situations of United Nations Security Council Referrals With its first referral, the unsc referred to the Prosecutor the situation in Darfur, Sudan,55 a non-State Party to the icc Statute. unsc Resolution 1593 (2005) imposes a mandatory obligation on the Government of Sudan and all

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icc, Situation in the Republic of Mali Decision Assigning the Situation in the Republic of Mali to Pre-Trial Chamber ii, ICC-01/12-01 (19 July 2012). 53 icc, Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia Public Redacted Version of Application for Review pursuant to Article 53(3)(a) of the Prosecutor’s Decision of 6 November 2014 not to initiate an investigation in the Situation, ICC-01/13-3-red (29 January 2015). 54 The Chamber identified material errors in the Prosecutor’s assessment of the possibility to prosecute those persons who may bear the greatest responsibility for the identified crimes committed during the seizure of the Mavi Marmara, as well as of the scale, nature, manner of commission and impact of the potential crimes. icc, Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, ICC-01/13-34 (16 July 2015). 55 The unsc referred the Situation in Darfur, Sudan to the icc through unsc Resolution 1593; unsc Res 1593, 31 March 2005, S/RES/1593 (2005a). Heyder, ‘The u.n. Security Council’s Referral of the Crimes in Darfur to the International Criminal Court in Light of u.s. Opposition to the Court: Implications for the International Criminal Court’s Functions and Status’ (2006) 24 Berkeley Journal of International Law 650.

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other parties to the conflict in Darfur to cooperate with the Court.56 This notwithstanding, Sudan has failed to cooperate and all five arrest warrants issued in relation thereto remain standing. The first arrest warrants to go unexecuted were issued by Pre-Trial Chamber i in February 2007 and March 2009, respectively, in the cases Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman (Kushayb)57 and Prosecutor v Omar Hassan Ahmad Al Bashir.58 Harun is the former Minister of State for the Interior and the current Minister for Humanitarian Affairs of Sudan; Kushayb is the alleged leader of the Janjaweed militia. Al Bashir – the President of Sudan since 1993 – was the first sitting Head of State to be indicted by the icc. A further warrant of arrest, of March 2012, against Abdel Raheem Muhammad Hussein, current Minister of National Defence and formerly Minister of the Interior and Sudanese President’s Special Representative in Darfur, is also pending. The Government of Sudan has refused to cooperate with the Court, stating that cooperating with the icc would be synonymous with relinquishing its national sovereignty. The arrest warrants were also criticised by a number of regional organisations – the League of Arab States, the au, the Conference of Islamic States and the Non-Aligned Movement – with the notable exception of the eu.59 In the context of the Situation in Darfur, Sudan, the Prosecutor conducted further investigations into the attack carried out on 29 September 2007 against the au peacekeeping Mission in Sudan stationed at the Haskanita Military Group Site (mgs Haskanita), in North Darfur. The investigation led to the

56 Under unsc Resolution 1593 (unsc Res 1593, 31 March 2005, S/RES/1593 (2005a)), the unsc: ‘Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully’ (at para 2; emphasis in the original). 57 icc, Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman Warrant of Arrest for Ahmad Harun, ICC-02/05-01/07-2 (27 April 2007). 58 icc, Prosecutor v Omar Hassan Ahmad Al Bashir Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1 (4 March 2009). 59 Ciampi, ‘The Proceedings against President Al Bashir and the Prospects of their Suspension under Article 16 icc Statute’ (2008) 6 Journal of International Criminal Justice 885, at 885–886.

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issuance of three summonses to appear,60 for Bahar Idriss Abu Garda – the Chairman and general coordinator of the military operations of the United Resistance Front (urf), a rebel group fighting against the Sudanese government – and two other individuals who allegedly participated to the attack on mgs Haskanita. The three suspects appeared voluntarily before the icc. However, in Prosecutor v Bahar Idriss Abu Garda, for the first time a Chamber of the icc (Pre-Trial Chamber i) declined to confirm the charges, finding that the Prosecutor’s allegations that Abu Garda participated in the alleged common plan to attack mgs Haskanita were not supported by sufficient evidence.61 In Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, the charges were confirmed and the accused committed to trial. Proceedings against Jerbo were subsequently terminated by Trial Chamber iv on 4 October 2013,62 after receiving evidence pointing towards his death. On 11 September 2014, Trial Chamber iv issued an arrest warrant against Banda and vacated the trial date (previously scheduled to open on 18 November 2014). The Chamber directed the icc Registry to transmit the new requests for arrest and surrender to any State, including Sudan, on whose territory Banda may be found.63 60

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In accordance with Art. 58(7) icc Statute: ‘As an alternative to seeking a warrant of arrest, the Prosecutor may submit an application requesting that the Pre-Trial Chamber issue a summons for the person to appear. If the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to ensure the person’s appearance, it shall issue the summons, with or without conditions restricting liberty (other than detention) if provided for by national law, for the person to appear’. Pre-Trial Chamber i refused to confirm the charges against Abu Garda on 8 February 2010. On 16 March, the Prosecution submitted a request to Pre-Trial Chamber i for leave to appeal the decision on the confirmation of charges. On 23 April, 2010, Pre-Trial Chamber i issued a decision rejecting the Prosecutor’s application to appeal the decision declining to confirm the charges. The decision does not preclude the Prosecution from subsequently requesting confirmation of the charges if such a request is supported by additional evidence. icc, Prosecutor v Abdullah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus Public redacted Decision terminating the proceedings against Mr Jerbo, ICC-02/05-03/09 -512-Red (4 October 2013). Trial Chamber iv had requested the Government of Sudan’s cooperation to facilitate the accused’s presence at trial. This cooperation, according to the information provided by the Registry, was not forthcoming. Consequently, the Chamber considered that there were no guarantees that, in the current circumstances, Banda would be in an objective position to appear voluntarily, regardless of whether he wished to be present at trial or not. The Chamber concluded that an arrest warrant was necessary to ensure the accused’s presence. The Chamber stressed that should Banda nonetheless appear voluntarily before

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Sudan has restated its opposition to the Court, stating that no Sudanese person should be handed over to the Court, even a Darfur rebel. The opposition of Sudan to the icc is thus absolute and extends beyond the protection of the Head of State and current and/or former ministers, to include even Sudanese persons fighting against the government. Early in 2013, the un Secretary General Ban Ki-moon issued Guidance on contacts with persons who are the subject of arrest warrants or summonses issued by the International Criminal Court, and transmitted them to the unga and to the unsc.64 The Guidance set out that contacts with those subject to icc arrest warrants should be limited to those strictly required for carrying out essential un-mandated duties, un presence at ceremonial or similar occasions should be avoided, no standard courtesy calls be made, and that when contacts are absolutely necessary, an attempt should be made, where possible, to interact with individuals of the same group or a party not subject to an icc warrant.65 un contacts of a high-level nature with those subject to icc arrest warrants have nevertheless continued to take place, as demonstrated by a lengthy meeting in January 2014 at an au summit between the Deputy Secretary-General and Al Bashir.66 As suggested by the Prosecutor in her June 2013 report to the unsc, the isolation of those under icc warrants is an essential step toward their arrest but application of the non-essential contacts policy would require a rigorous assessment as to whether such contacts are strictly required for carrying out essential un-mandated duties and an ongoing critical analysis of such contacts to assess whether they have indeed succeeded in contributing to the successful conduct of un-mandated duties.67

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the Court, the Chamber will take the voluntary appearance into consideration and revisit accordingly the conditions of his stay in The Netherlands during the trial. un Secretary-General, Guidance on contacts with persons who are the subject of arrest warrants or summonses issued by the International Criminal Court, 8 April 2013, un Doc A/67/828–S/2013/210. With respect to persons subject to summons of appear, the Guidance sets out that un officials may interact without restrictions with such persons, unless a person ceases to cooperate with the Court and the Prosecutor seeks the issuance by the Court of a warrant for his/her arrest. icc-otp, ‘Nineteenth Report of the Prosecutor of the International Criminal Court to the un Security Council pursuant to the unscr 1593 (2005)’, icc, 23 June 2014, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20 the%20prosecutor/reports%20and%20statements/statement/Pages/otp-19-th-report-toUNSC-Darfur.aspx (last accessed 25 February 2016) at para 9. icc-otp, ‘Seventeenth report of the Prosecutor of International Criminal Court to the un  Security Council pursuant to unscr 1593 (2005)’, icc, 5 June 2013, available at:

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The Chambers have continued to track Al Bashir’s travels and have interacted extensively with States about meeting their obligations to arrest and surrender him to the Court.68 State Parties to the icc Statute like Malawi, Chad, Djibouti, Kenya and South Africa, which could have arrested Al Bashir when he entered their territories, have not complied with the Court’s requests for cooperation. The latest reported incident is Bashir’s unanticipated and rapid departure from the 24th au Summit, held from 7 to 15 June 2015, in South Africa. On 14 June 2015, the High Court of Pretoria issued an order requiring the authorities of South Africa to prevent Al Bashir from leaving the country until a final determination of its obligations could be made by the domestic court.69

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www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20 the%20prosecutor/reports%20and%20statements/statement/Pages/17th-report-UNSC -Darfur.aspx (last accessed 25 February 2016) at paras 47–48; ‘Systematic and consistent implementation of the same rigorous assessment regarding any intended meetings either by un or state officials with an icc fugitive will be necessary to ensure the full and effective implementation of the Rome Statute system of international criminal justice’. See e.g. icc-otp, ‘Seventeenth report of the Prosecutor of International Criminal Court to the un Security Council pursuant to unscr 1593 (2005)’ (2013) supra n 67 at para 44, noting that ‘President Omar Al-Bashir has travelled to a small number of regional States not Party to the Rome Statute, but has also made two visits to Chad, a State Party to the Rome Statute. From 15–17 February 2013, he attended a regional summit of cen-sad States, and from 10–11 May 2013 a further summit on desertification issues. On both occasions, the Office notified the Pre-Trial Chamber of his likely travel and the Chamber issued Orders reminding Chad of its obligations under the Rome Statute and seeking further information’. More recently, ‘[o]n 23 January 2014, Omar Al Bashir travelled to Juba, South Sudan, to attend the extraordinary meeting of the Intergovernmental Authority on Development (igad) countries. From 29–31 January, Omar Al Bashir travelled to Addis Ababa, Ethiopia to attend the African Union Summit on Agriculture and Food Security, where he met the Deputy Secretary-General of the un, Jan Eliasson. On 17 February, Omar Al Bashir attended Liberation Day celebrations in the Mekele in the Tigray region of Ethiopia. From 26–27 February, he attended the Common Market for Eastern and Southern Africa (comesa) Summit in Kinshasa, Democratic Republic of the Congo, a State Party to the icc Statute. Between 25 and 29 March, Omar Al Bashir travelled to Chad to address a forum for tribes living on the border. On 25 April, he once again travelled to Addis Ababa, Ethiopia, to attend the 3rd Forum on Security in Africa from 26 to 27 April’. See icc-otp, ‘Nineteenth Report of the Prosecutor of the International Criminal Court to the un Security Council pursuant to the unscr 1593 (2005)’ (2014) supra n 66 at para 20. icc-otp, ‘Twenty-first Report of the Prosecutor of the International Criminal Court to the un Security Council pursuant to the unsc 1593 (2005)’ icc, 29 June 2015, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20 the%20prosecutor/reports%20and%20statements/statement/Pages/21-rep-unsc.aspx (last accessed 25 February 2016) at paras 5–6.

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In defiance thereof, just as South Africa’s High Court was holding a hearing on whether the government was required to execute the icc’s arrest warrants, the Sudanese President was allowed to leave the country. A decision issued by the Presiding Judge of Pre-Trial Chamber ii had earlier stated that ‘there exists no ambiguity or uncertainty with respect to the obligation of the Republic of South Africa to immediately arrest and surrender Omar Al Bashir to the Court, and that the competent authorities of the Republic of South Africa are already aware of this obligation’.70 However, despite the clarity of Art. 27 icc Statute,71 the question whether sitting Heads of State enjoy immunity continues to be debated.72 According to one view,73 even non-State parties would have no obligation to arrest Al Bashir. Qatar, Kuwait and Ethiopia – non-State Parties, the cooperation of which is voluntary – have been equally reluctant to cooperate in the arrest of Al Bashir.74 70

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icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision following the Prosecutor’s request for an order further clarifying that the Republic of South Africa is under the obligation to immediately arrest and surrender Omar Al Bashir, ICC-02/05-01/09-242 (13 June 2015). Art. 27 icc Statute provides: ‘1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person’. See Akande, ‘International Law Immunities and the International Criminal Court’ (2004) 98 American Journal of International Law 407 and Akande, ‘The Legal Nature of the Security Council Referrals to the icc and its Impact on Al Bashir’s Immunities’ (2009) 7 Journal of International Criminal Justice 333. Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’ (2009) 7 Journal of Inter­ national Criminal Justice 315. See e.g. icc-otp, ‘Nineteenth Report of the Prosecutor of the International Criminal Court to the un Security Council pursuant to the unscr 1593 (2005)’ (2014) supra n 66 at paras 21–22, reporting that on 30 January 2014, Pre-Trial Chamber ii issued a decision on Al Bashir’s travel to Addis Ababa, Ethiopia from 29 to 31 January 2014, recognizing that Ethiopia as a non-State Party was not under any obligation to cooperate with the Court, but noting the language of unsc Res 1593 (2005) that ‘urge[d] all States and concerned regional and other international organizations to cooperate fully’ with the Court. PreTrial Chamber ii therefore ordered the Registry to transmit to Ethiopia the requests for arrest and surrender, as well as the current decision, and invited the latter to arrest Al Bashir and surrender him to the Court. On 17 February 2014, Pre-Trial Chamber ii issued a decision, taking note of the Registrar’s 10 February report that no reply from the Federal

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The State Parties’ non-compliance with the Court’s request for cooperation in the arrest and surrender of Al Bashir led Pre-Trial Chamber i to notify the unsc and the asp of the situation.75 No measures, however, were implemented that would ensure compliance.

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Republic of Ethiopia was received to the Court’s note verbale, and confirming that Al Bashir’s visit had taken place. The Chamber again instructed the Registrar to communicate the present decision to Ethiopia and to invite Ethiopia to cooperate with the Court. On 29 April, Pre-Trial Chamber ii issued another decision on Al Bashir’s April 25–27 travel to Ethiopia, reminding Ethiopia of the requests to arrest and surrender Al Bashir, and inviting Ethiopia to arrest and surrender him to the Court. For example, following Al Bashir’s first visit to Chad in 2013, and taking into account the response from Chad, on 26 March 2013 the Chamber found that Chad had failed to comply with its obligations either to consult with the Chamber regarding any problems which might impede the execution of requests for arrest and surrender, or to cooperate with the Court by deliberately refusing to arrest and surrender Al Bashir. This decision has been transmitted to the unsc, and to the asp. See icc-otp, ‘Seventeenth report of the Prosecutor of International Criminal Court’ (2013) supra n 67 at para 44. For another example, see icc-otp, ‘Nineteenth Report of the Prosecutor of the International Criminal Court to the un Security Council pursuant to the unscr 1593 (2005)’ (2014) supra n 66 at paras 23–24; reporting that on 26 February 2014, Pre-Trial Chamber ii issued a decision during Al Bashir’s visit to the drc, reminding the drc of its obligation as a State Party to arrest and surrender Al Bashir to the Court and requesting the drc to immediately do so, and ordering the Registrar to report on Al Bashir’s visit. In a 26 February press release, the President of the asp called upon the drc to cooperate with the Court. On 3 March 2014, Pre-Trial Chamber ii issued another decision, inviting the drc authorities to submit observations on Al Bashir’s visit by 14 March 2014 on its failure to arrest and surrender Al Bashir on the one hand, and on its failure to consult with the Court about any problems identified which might have hindered its cooperation. Following the 18 March observations submitted by the drc, which cited ‘time and legal constraints’ as factors in its noncooperation, on 9 April 2014, Pre-Trial Chamber i issued a further decision. In particular, the drc cited limited advance knowledge of Al Bashir’s arrival, that the invitation was made by comesa and not by the drc, that the short length of the visit inhibited the drc’s ability to make a decision with such ‘legal, diplomatic and security obligations’, that an arrest would have had ‘heavy consequences’ for the drc, and that with more time, the drc would have presented these difficulties to the Court. The Pre-Trial Chamber acknowledged these difficulties, but found the drc’s arguments unconvincing, responding that the Court’s request could not have come as a surprise and that Al Bashir’s one day on the ground was enough time to arrest him, and certainly enough time to consult with the Court. The Pre-Trial Chamber further rejected the notion that comesa could organise activities on the territory of the drc without the drc’s knowledge and consent. On the legal arguments about Al Bashir’s immunity, the Pre-Trial Chamber addressed the drc’s arguments that Al Bashir’s immunity remained intact, which cited his visits to other State Parties as relevant precedent. The Chamber found that there could be no lack of clarity

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Faced with an environment where the otp’s limited resources for investigations are overstretched, and given the unsc’s lack of foresight on what should happen in Darfur, the Prosecutor was left with no choice but to hibernate investigative activities in Darfur and shift resources to other urgent cases, especially those in which trials are imminent.76 The Situation in Libya was referred to the icc by unsc Resolution 1970 (2011).77 The resolution placed a mandatory obligation on Libya to ‘cooperate fully with and provide any necessary assistance to the Court and the Prosecutor’.78 In June 2011, Pre-Trial Chamber i issued arrest warrants for Muammar Mohammed Abu Minyar Gaddafi (Muammar Gaddafi, the former Libyan de facto Head of State),79 his son, Saif Al-Islam Gaddafi,80 and the intelligence chief, Abdullah Al-Senussi.81 None of the suspects has ever been brought in the Court’s custody. The case against Muammar Gaddafi was terminated in November 2011, following his death.82

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about Al Bashir’s lack of immunity under Art. 27 icc Statute and that the consultation required of the drc by the same Statute with the Court would have made this clear. The Pre-Trial Chamber found that the drc had violated the terms of unsc Res 1593, made a finding that the drc had failed to cooperate with the Court, and referred the finding to the asp and the unsc for further action. See Magliveras, ‘The icc Addresses NonCooperation by States Parties: The Malawi Decision’ (2013) 6 African Journal of Legal Studies 137; Sluiter, ‘Obtaining Cooperation from Sudan – Where Is the Law’ (2008) 6 Journal of International Criminal Justice 871. icc-otp, ‘Twenty-first Report of the Prosecutor of the International Criminal Court to the un Security Council pursuant to the unscr 1593 (2005)’ supra n 71 at para 7. unsc Res 1970 (2011) supra n 27. See also unsc Resolution 2174. unsc Res 2174, 27 August 2014, S/RES/2174 (2014); which deplored the increasing violence in Libya and, inter alia, recalled its decision in unsc Resolution 1970 (2011) supra n 27, to refer the situation to the icc and reaffirmed the importance of the Government of Libya’s cooperation with the icc and the otp, as well as the importance of holding accountable those responsible for violations or abuses of human rights or violations of international humanitarian law, including those involved in attacks targeting civilians. icc, Situation in the Libyan Arab Jamahiriya Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi, ICC-01/11-13 (27 June 2011). icc, Situation in the Libyan Arab Jamahiriya Warrant of Arrest for Saif Al-Islam Gaddafi, ICC-01/11-14 (27 June 2011). icc, Situation in the Libyan Arab Jamahiriya Warrant of Arrest for Abdullah Al-Senussi, ICC-01/11-15 (27 June 2011). icc, Prosecutor v Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi Decision to Terminate the Case Against Muammar Mohammed Abu Minyar Gaddafi, ICC-01/11-01/11-28 (22 November 2011).

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Al-Senussi was arrested in Mauritania and extradited to Libya, but the case against him was found inadmissible before the icc in July 2014, following a challenge to admissibility brought by Libya. Libya successfully argued that his case was subject to domestic proceedings conducted by the competent Libyan authorities and that Libya was willing and able genuinely to carry out such an investigation.83 Saif Al-Islam Gaddafi was arrested in Libya in 2011, one month after his father’s death, and has been detained incommunicado in Zintau since then. His arrest warrant – temporarily suspended pending the final determination of  a previous admissibility challenge unsuccessfully brought by Libya84 – is still outstanding. The Defence has filed fifteen requests for a finding of non-­ compliance by Libya with its obligation to cooperate with the icc.85 On 11 July 2014 (over a year after the Defence filed its first request for a finding of non-compliance), Pre-Trial Chamber i found that Libya had not complied with its obligation to surrender Saif Al-Islam Gaddafi and cautioned that the ‘Chamber may decide at any time what further action is appropriate, including making a formal finding of non-cooperation and transmitting it to the Security Council’.86 Faced with Libya’s continuous failure to cooperate, the Defence contended that if Libya is unwilling to execute the icc arrest warrant, and the Chamber itself would take no steps to secure its compliance (i.e. through the 83

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On 11 October 2013, Pre-Trial Chamber i decided that the case against Al-Senussi was inadmissible before the icc as it was currently subject to domestic proceedings conducted by the Libyan competent authorities and that Libya is willing and able genuinely to carry out such an investigation. On 24 July 2014, the Appeals Chamber unanimously confirmed PreTrial Chamber i’s decision, declaring the case against Al-Senussi inadmissible before the icc. Proceedings against Al-Senussi before the Court hence came to an end. Stahn, ‘Libya, the International Criminal Court and Complementarity: A Test for Shared Responsibility’ (2012) 10 Journal of International Criminal Justice 325. On 1 May 2012, the Government of Libya challenged the admissibility of the case concerning Saif Al-Islam Gaddafi before Pre-Trial Chamber i. On 31 May 2013, the Pre-Trial Chamber i rejected the challenge to the admissibility of the case. The Judges acknowledged Libya’s efforts to restore the rule of law. However, the Chamber concluded that Libya was unable genuinely to carry out the prosecution of Saif Al-Islam Gaddafi and found that the evidence submitted was not sufficient to consider that the domestic and the icc investigations cover the same case. On 21 May 2014, the icc Appeals Chamber confirmed the decision of Pre-Trial Chamber i declaring the case against Saif Al-Islam Gaddafi admissible. See e.g. icc, Prosecutor v Saif Al-Islam Gaddafi Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council, ICC-01/11-01/11-577 (10 December 2014). icc, Prosecutor v Saif Al-Islam Gaddafi Decision on matters related to Libya’s duties to cooperate with the Court, ICC-01/11-01/11-563 (11 July 2014) at para 13.

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formal referral of the matter to the unsc), there would be no prospect of a trial before the icc and the purpose of the icc arrest warrant would be vitiated. For  these reasons, it requested Pre-Trial Chamber i either to report Libya’s non-compliance to the unsc or to withdraw the warrant of arrest against Saif Al-Islam Gaddafi.87 On 10 December 2014, Pre-Trial Chamber i issued a finding of non-compliance by the Government of Libya with respect to the non-­ execution of two requests for cooperation transmitted by the icc, and decided to refer the matter to the unsc.88 At the time of writing, the unsc has yet to take action. Notwithstanding the conclusion and applicability of a Memorandum of Understanding with the otp,89 Libya appears to be both unwilling and unable to surrender Saif Al-Islam Gaddafi and more generally to cooperate with the icc. The scenario is made complex by lack of clarity as to the true holders of powers in the country. Since the general elections held in July 2012, Libya’s first free national election in six decades, tensions between nationalists and Islamists have stymied attempts to produce a stable government, and in 2014 the country was riven by fighting between rival militias: the central government collapsed and the un has struggled to bring political factions together.90 In addition, State Parties, the obligations of which are unaffected by the existence of a unsc referral, appear to be either unable and/or unwilling to act in furtherance thereof. 87

icc, Prosecutor v Saif Al-Islam Gaddafi Defence request concerning Mr Gaddafi’s continued detention in Libya, ICC-01/11-01/11 (19 November 2014). 88 icc, Prosecutor v Saif Al-Islam Gaddafi Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council (2014) supra n 85. 89 See icc-otp, ‘Statement to the United Nations Security Council on the Situation in Libya, pursuant to unscr 1970 (2011), Mrs Fatou Bensouda, Prosecutor of the International Criminal Court’, icc, 12 November 2014, available at: www.icc-cpi.int/en_menus/icc/ structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20 and%20statements/statement/Pages/otp-statement-12-11-2014.aspx (last accessed 25 February 2016): noting that given the prevailing circumstances in Libya, progress with regard to the implementation of the Memorandum of Understanding between the otp and the Government of Libya has been slow. 90 For an acknowledgment of ‘the volatile political and security situation in Libya’ and ‘the serious difficulties that its authorities are currently facing as well as the need on their part to focus efforts and resources or restoring stability and order, as submitted by Libya’, see icc, Prosecutor v Saif Al-Islam Gaddafi Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council (2014) supra n 85 at para 32.

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C Investigations Initiated proprio motu by the Prosecutor The Prosecutor sought – and obtained – authorisation to initiate investigations proprio motu in two situations. The icc judges authorised the Prosecutor to initiate an investigation in a State Party for the first time in March 2010, in relation to Kenya. On 15 December 2010, the Prosecutor requested Pre-Trial Chamber ii to issue summonses to appear for six Kenyans believed to be criminally responsible for crimes against humanity committed in the aftermath of the general election of December 2007. The six suspects were Uhuru Muigai Kenyatta91 (at the time of the post-election violence, Deputy Prime Minister and Finance Minister; he became the fourth President of Kenya in April 2013); William Samoei Ruto92 (at the time Minister for Higher Education, Science and Technology and Member of Parliament; current Deputy President); Joshua Arap Sang (former Head of Operations at the radio station Kass fm in Nairobi); Henry Kiprono Kosgey (former Minister for Industrialisation); Mohammed Hussein Ali (former Commissioner of Police) and Francis Kirimi Muthaura (former Head of Civil Service and Cabinet Secretary). A week after the Prosecutor announced the individuals he was seeking to prosecute, the Kenyan National Assembly passed a motion seeking to withdraw Kenya as a State Party to the icc Statute. The motion, which dismissed the icc as a colonial imperialist court, did not itself affect Kenya’s status as a State Party, but rather obliges ministers to move to repeal Kenya’s International Crimes Act, which ratified the icc Statute and made necessary changes to Kenya’s criminal code. In February 2011, Kenya’s President Kibaki appealed to the unsc, asking it to defer the situation of Kenya at the icc, arguing that trials at The Hague would threaten the nation’s stability; the attempt failed without being voted on.93 The Kenyan Government subsequently applied directly to the Court. 91

92

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icc, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC01/09-02/11-01 (8 March 2011). icc, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-01 (8 March 2011a). Art. 16 icc Statute allows the unsc to suspend the Court’s proceedings if prosecutions at the icc would constitute a threat to international peace and security. Kenya failed to convince unsc members that such a threat existed. unsc members, including permanent members us, Britain and France, said they would reject the request for a deferral of icc action. The unsc did not convene in an official capacity to hear Kenya’s plea. The gathering

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The Republic of Kenya had initially unsuccessfully requested the Prosecutor to defer to their Government’s investigation of the situation. On 31 March 2011, the Government of Kenya filed an application challenging the admissibility of the case before the icc.94 Kenya claimed that based on Art. 19 icc Statute, it was able and willing to prosecute the six individuals in its national courts.95 On 30 May 2011, Pre-Trial Chamber ii unanimously rejected this application.96 PreTrial Chamber ii’s decision was confirmed, on 30 August 2011, by the Appeals Chamber.97 The Kenyan Government had to demonstrate that it had started proceedings against the six suspects for the same conduct for which they were summoned to the Court. The Appeals Chamber ruling means that Kenya has to continue cooperating with the Court in the proceedings against the six suspects in The Hague. Following the initial appearance hearing, which took place on 7–8 April 2011, the Judges of Pre-Trial Chamber ii declined to confirm the charges against Ali and Kosgey on 23 January 2012.98 Pre-Trial Chamber ii confirmed the instead took the form of an informal meeting (‘an interactive dialogue’) held outside the unsc’s chamber between Kenyan envoys and members of the unsc, on 18 March 2011. 94 icc, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali and Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Application on Behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the icc Statute, ICC-01/09-01/11-19 (31 March 2011). 95 Ibid. 96 icc, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, ICC-01/09-02/11-96 (30 May 2011a) and icc, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, ICC-01/09-01/11101 (30 May 2011b). 97 icc, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Judgment on the appeal of the Republic of Kenya against the decision of PreTrial Chamber ii of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, ICC-01/09-02/11-274 (30 August 2011a) and icc, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber ii of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, ICC-01/09-01/11-307 (30 August 2011b). 98 icc, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red (23 January 2012a) and icc, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the

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charges against Ruto, Sang, Muthaura and Kenyatta and committed them to trial before an icc Trial Chamber.99 The charges against Muthaura were withdrawn on 18 March 2013.100 The defendants are not in the custody of the Court. With most of the evidence and witnesses located in the territory of the Republic of Kenya, the continued cooperation by the latter is essential for the otp to be able to make its case before the Chamber and prove it beyond any reasonable doubt. In Prosecutor v William Samoei Ruto and Joshua Arap Sang, the trial started on 10 September 2013. Most of the witnesses’ testimony is taken via video link from Nairobi. This also requires the cooperation of Kenya. On 9 October 2014, for example, the Appeals Chamber dismissed appeals by Ruto and Sang against Trial Chamber v(a)’s decision, which required witnesses to appear before it, sitting in situ or by way of a video link, and found that Kenya was under an obligation to facilitate the witnesses’ appearance, if necessary by way of compulsory measure.101 In the context of the case against Ruto, the Government of Kenya has also received a warrant for the immediate arrest and transfer of Walter Barasa to face criminal charges for the crime of corruptly influencing or, alternatively, attempting to corruptly influence witnesses by offering to pay them to withdraw as witnesses for the Prosecutor. An under seal warrant of arrest was issued against him on 2 August 2013.102 Barasa remains at large. In Prosecutor v Uhuru Muigai Kenyatta, the trial was originally scheduled to start in October 2014. On 5 September 2014, however, the Prosecutor requested Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC01/09-01/11-373 (23 January 2012). 99 Ibid. 100 icc, Prosecutor v Francis Kirimi Muthaura amd Uhuru Muigai Kenyatta Decision on the withdrawal of charges against Mr Muthaura, ICC-01/09-02/11-696 (18 March 2013). 101 On 17 April 2014, Trial Chamber v(a) granted the Prosecutor’s request to summon witnesses who were no longer cooperating or no longer willing to testify. The Government of Kenya was requested to assist in serving the summonses to the witnesses. On 5 June 2014, Ruto and Sang’s Defence teams appealed the Trial Chamber v(a) decision. See icc, Prosecutor v William Samoei Ruto and Joshua Arap Sang Judgment on the appeals of William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber v(A) of 17 April 2014 entitled ‘Decision on Prosecutor’s Application for Witness Summonses and resulting Request for State Party Cooperation’, ICC-01/09-01/11-1598 (9 October 2014). 102 icc, Prosecutor v Walter Osapiri Barasa Warrant of arrest for Walter Osapiri Barasa, ICC01/09-01/13-1-Red2 (2 August 2013). This was the first time a suspect was charged before the icc with an offence against the administration of justice, in accordance with Art. 70 icc Statute.

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to adjourn the case until Kenya complies with its obligations to cooperate with the Court. In particular, the Prosecutor sought the execution of a request to provide certain financial and other records relating to Kenyatta, on the basis that the records were relevant to a central allegation in the case. On 10 September 2014, the Defence filed a response to the Prosecutor’s notice and a request to terminate the case against Kenyatta, alleging fair trial violations and asking that the charges be dropped altogether because of lack or insufficient prosecutorial evidence.103 The Defence submitted that the granting of the Prosecutor’s request for an adjournment sine die at this stage in the proceedings would violate the fair trial rights of Kenyatta to be either tried without undue delay or to have the current case against him terminated on the basis of a highly significant concession of insufficient evidence by the Prosecutor.104 The Defence further contended that the submission by the Prosecutor that the accused, as President, should take responsibility for alleged failures by the Government of Kenya to comply with its international obligations is flawed and without merit. The practical and legal difficulties for the Government of Kenya in executing the Prosecutor’s requests are matters for which the accused is not responsible. All these matters are founded upon issues of Kenyan law. The Prosecutor’s refusal to comply with Kenyan legal procedure has frustrated this process. Any involvement by the accused that resulted in exculpatory evidence would be unfairly criticised by the Prosecutor and the Legal Representatives of Victims as interference in the process.105 The Defence’s arguments do not seem devoid of merit. One should add that the right against self-incrimination forbids compelling any person to give testimony or other evidence that would likely incriminate him or her in a criminal trial.106 Convictions based on evidence taken in violation of the right against 103 icc, Prosecutor v Uhuru Muigai Kenyatta, Defence Response to ‘Prosecution notice regarding the provisional trial date’ (ICC-01/09-02/11-944) and Request to Terminate the Case against Mr Kenyatta, ICC-01/09-02/11-945-Red (10 September 2014). 104 Ibid. 105 For these reasons, the Defence requested the Chamber to deny the Prosecution’s request for a further adjournment, terminate the proceedings, and issue a final determination of the charges against Kenyatta. See icc, Prosecutor v Uhuru Muigai Kenyatta Defence Response to ‘Prosecution notice regarding the provisional trial date’ (ICC-01/09-02/11-944) and Request to Terminate the Case against Mr Kenyatta, ICC-01/09-02/11 (10 September 2014a) at paras 26, 29 and 37. The Legal Representatives of Victims also filed a Response to the Prosecution notice on the same day. 106 The icc Statute does not expressly provide for the right against self-incrimination but should be deemed to include it as a principle of due process recognised by international

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self-incrimination ought to be overturned on appeal, unless there is enough admissible evidence to support the verdict. On 3 December 2014, Trial Chamber v(b) rejected both the Prosecutor’s request for a further adjournment of the case against Kenyatta, as well as the Defence’s request to terminate the proceedings. The Chamber instead directed the Prosecutor to file a notice, within one week, indicating either its withdrawal of the charges in this case, or that the evidentiary basis has improved to a degree which would justify proceeding to trial.107 On the same day, in a separate decision, the Chamber also rejected the Prosecutor’s request for a finding of non-cooperation against the Kenyan Government and referral of the matter to the asp under Art. 87(7) icc Statute. Despite having expressed strong concerns regarding the approach of the Kenyan Government, the Chamber was not persuaded that a referral would facilitate a fair trial, was in the interests of justice or was otherwise appropriate in the particular circumstances.108 On 5 December 2014, ‘given the state of the evidence in this case’, the Prosecutor declared to ‘have no alternative but to withdraw the charges against Mr Kenyatta’ and to do so ‘without prejudice to the possibility of bringing a new case should additional evidence become available’.109 On 13 March 2015, Trial Chamber v(B), noting the Prosecution’s withdrawal of charges against

law, applicable under Art. 21 icc Statute (‘1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards’). 107 icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a further adjournment, ICC-01/09-02/11-981 (3 December 2014a). 108 icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, ICC-01/09-02/11-982 (3 December 2014b). 109 icc-otp, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr Uhuru Muigai Kenyatta’, 5 December 2014, available at: www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20 releases/pages/otp-statement-05-12-2014-2.aspx (last accessed 25 February 2016): See icc, Prosecutor v Uhuru Muigai Kenyatta Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, ICC-01/09-02/11-983 (5 December 2014).

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Kenyatta, decided to terminate the proceedings in this case and to vacate the summons to appear against him.110 Trial Chamber v(B)’s decision regarding the Kenyan Government’s alleged non-compliance with its obligations under the icc Statute in the case Prosecutor v Uhuru Muigai Kenyatta was reversed by the Appeals Chamber on 19 August 2015. The Appeals Chamber considered that Trial Chamber v(B) erred by failing to address whether judicial measures had been exhausted to obtain the Kenyan Government’s cooperation, as well as by assessing in an inconsistent manner the sufficiency of evidence and the Prosecutor’s conduct. These errors prevented the Trial Chamber from making a conclusive determination on the existence of a failure to comply with a cooperation request by the Court and affected the Trial Chamber’s decision not to refer the matter of Kenya’s non-compliance to the asp. In addition, Trial Chamber v(B) should have avoided conflating the status of the criminal proceedings against Kenyatta with the issues relating to the Kenyan Government’s cooperation. The Appeal Chamber hence remanded this decision to the Trial Chamber for a new determination.111 The icc Statute entered into force for Côte d’Ivoire as a State Party thereto on 1 May 2013.112 In 2003, however, the acting President at that time, Laurent Gbagbo lodged a declaration of acceptance of the Court’s jurisdiction in relation to the crimes committed in its territory since 19 September 2002, with no temporal limitation.113 In 2010, in a letter submitted by the new President of Côte d’Ivoire, Alassane Ouattara, Côte d’Ivoire reconfirmed its acceptance of the jurisdiction of the icc.114 By accepting the Court’s jurisdiction, Côte d’Ivoire

110 The Chamber stressed that, although the proceedings shall be terminated, the Court retains jurisdiction over any interference with a witness or with the collection of evidence, and that the protective measures ordered for witnesses and/or victims shall continue, subject to the review by the icc. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on the withdrawal of charges against Mr Kenyatta, ICC-01/09-02/11-1005 (13 March 2015). 111 icc, Prosecutor v Uhuru Muigai Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber v(B)’s “Decision on Prosecution’s application for a finding of non-­ compliance under Article 87(7) of the Statute”, ICC-01/09-02/11-1032 (19 August 2015). 112 icc Press Release, ‘icc welcomes Côte d’Ivoire as a new State Party’, icc, 19 March 2013, available at: www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/ Pages/pr884.aspx (last accessed 25 February 2016). 113 icc, ‘Declarations Art. 12(3)’, icc, available at: www.icc-cpi.int/en_menus/icc/structure %20of%20the%20court/registry/Pages/declarations.aspx (last accessed 25 February 2016). 114 Ibid.

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undertook to cooperate with the Court without delay or exception, in accordance with Part ix icc Statute.115 The Prosecutor’s investigation – authorised in October 2011 – focused on the crimes committed by pro-Gbagbo and pro-Ouattara forces during the violence that followed the presidential elections of 2010. This has led to the issuance of arrest warrants against former President Gbagbo, a member of his inner circle – Charles Blé Goudé – and his wife, Simone Gbagbo. Gbagbo was arrested together with his wife and supporters by the new Government officials (assisted by French and un forces) and put under house arrest in April 2011. A warrant of arrest was issued against him by Pre-Trial Chamber iii in November 2011.116 Subsequently, Côte d’Ivoire officials transferred him to The Hague. Gbagbo was the first former Head of State in the Court’s custody. He was committed to trial in June 2014. On 1 October 2013, Côte d’Ivoire challenged the admissibility of the case against Simone Gbagbo, arguing that a case against the same person for the same crime is being prosecuted at national level.117 On 15 November 2013, PreTrial Chamber i decided that Côte d’Ivoire may postpone the execution of Simone Gbagbo’s surrender request pending a final determination by the Chamber on the admissibility challenge.118 The Chamber emphasised that the postponement of the surrender request was only temporary and the warrant of arrest remained valid, and that it in no way affected Côte d’Ivoire’s continuing obligation to cooperate with the icc. On 11 December 2014, Pre-Trial Chamber i rejected Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo before the Court, and reminded Côte d’Ivoire of its obligation to surrender Simone Gbagbo to the Court without delay.

115 In accordance with Art. 12(3) icc Statute: ‘If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9’. 116 icc, Situation in the Republic of Côte d’Ivoire Warrant Of Arrest For Laurent Koudou Gbagbo, ICC-02/11-01/11-1 (23 November 2011). 117 icc, Prosecutor v Simone Gbagbo Requête de la République de Côte d’Ivoire sur la recevabilité de l’affaire le Procureur c. Simone Gbagbo et demande de sursis à exécution en vertu des articles 17, 19 et 95 du Statut de Rome, ICC-02/11-01/12-11-Red (1 October 2013). 118 icc, Prosecutor v Simone Gbagbo Decision on the conduct of the proceedings following Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo, ICC02/11-01/12-15 (15 November 2013).

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Blé Goudé was surrendered to icc custody by the Ivorian authorities in March 2014 and was committed to trial by Pre-Trial Chamber i on 11 December 2014.119 4

A First Critical Assessment

Cooperation has worked to some extent in situations referred by State Parties (or in relation to which a non-State Party had lodged a declaration of acceptance of the Court’s jurisdiction).120 It is not a coincidence that those are all cases of self-referral, where a State referred to the Prosecutor the crimes committed in its territory (or a part thereof). In the situations of self-referrals, the States most directly concerned with the crimes are generally willing to cooperate with the Court.121 Their ability to do so, however, is sometimes problematic. The Situation in Uganda – where most suspects remain at large due to the lack of governmental control over at least certain parts of Ugandan territory – is particularly instructive in this respect. As noted above,122 the unwillingness of this State could be added to its actual inability to cooperate, should the otp resolve to bring cases against members of the Ugandan government. The drc can be considered as the situation where the icc cooperation regime has worked most successfully. The drc complied with the requests for the arrest of Lubanga, Katanga and Ngudjolo and their transfer to the Court. The cooperation of third States – most notably, France – has also proved essential in the execution of the Court’s arrest warrants. That of car also looks like a successful story, with all five suspects subject to an arrest warrant now in the Court’s custody. The arrests were executed by Belgium, the Netherlands, the drc and France.123 It is regrettable, however, that four out of the five cases brought by the Prosecutor are for contempt of court rather than for one of the most serious crimes of concern to the international community as a whole within the Court’s jurisdiction.

119 icc, Prosecutor v Blé Goudé Decision on the confirmation of charges against Charles Blé Goudé, ICC-02/11-02/11-186 (11 December 2014). 120 This is the case of Côte d’Ivoire, where the Prosecutor subsequently initiated investigations proprio motu (supra Section 3.C). 121 Supra Section 3.A. 122 Ibid. 123 Ibid.

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The scenario changes dramatically when one moves away from the situations of self-referrals to consider situations referred by the unsc or where the Prosecutor initiated investigations proprio motu. In none of these situations has cooperation been successful and a question mark remains as to whether the icc cooperation regime is (or can ever be made) effective. Cooperation has proved most difficult to achieve in the case of unsc referrals, notwithstanding the fact that the obligation to cooperate with the icc is incumbent upon the territorial States under the relevant unsc resolutions, which are adopted under Chapter 7 un Charter. The Situations in Libya and Darfur, Sudan show the limits of an enforcement model left to the States most directly involved with the crimes within the Court’s jurisdiction. The opposition of Sudan to the Court is absolute and extends beyond the protection of its Head of State and current and/or former ministers, to include even Sudanese persons fighting against the Government of Sudan. The scenario in Libya is less clear cut, given the confusion as to the true holders of powers in that State. No doubt, however, that, notwithstanding the conclusion and applicability of a Memorandum of Understanding with the otp, Libya is unwilling, and probably also unable, to cooperate in the surrender of Saif Al-Islam Gaddafi to the Court. With Sudan and Libya unwilling to cooperate with the Court, State Parties – ­the obligations of which are unaffected by the existence of a unsc referral – appear to be either unable and/or unwilling to act in pursuance thereof. Also non-State Parties – the cooperation of which is not mandated by the unsc under Chapter 7 un Charter124 – show no, or little, willingness to execute the Court’s requests for arrest and surrender. The results are not more impressive in the situations where the Prosecutor initiated investigations proprio motu. Both situations have unveiled, instead, a number of paradoxes. The Situation in Kenya is extreme in several respects. The voluntary appearance of the six suspects summoned by the Court did not supersede the need for international cooperation. On the contrary, Kenya’s cooperation has proved vital for the Prosecutor to be able to sustain these cases at the confirmation of charges phase and, subsequently, at trial. The Judges declined to confirm the charges in two cases (Ali and Kosgey),125 while charges were withdrawn against 124 In both situations referred to the icc, the unsc not only did not impose, but expressly excluded an obligation to cooperate with the Court by non-State Parties. unsc Resolution 1970 (2011) supra n 27 at para 5, is similarly worded. 125 icc, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Confinnation of Charges Pursuant to Article 61(7)(a) and (b)

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Muthaura126 and, most recently, Kenyatta.127 In the case against the latter, one was faced with the absurd situation of a defendant – now the President of Kenya – against whom the Prosecutor would have liked to provide evidence, but whose evidence would have been considered undue interference, if exculpatory, or inadmissible, if incriminating (or the subsequent conviction overturned on the ground that it breached the privilege against self-incrimination).128 It was the second time the Prosecutor indicted a sitting Head of State but it was the first time that a sitting Head of State decided to voluntarily appear before the Court. While the main obstacle to the realisation of the trial thus seemed to be overcome, the Prosecutor was instead stuck in the paradoxical situation of having secured the presence of the accused, but lacked sufficient evidence to support the case under the standard of proof required at trial, because of the lack of cooperation on the part of the accused himself. This was at odds with the fundamental guarantee of any fair criminal trial that the defendant, including a sitting Head of State, is entitled to the benefit against self-incrimination. In Côte d’Ivoire, where two out of three arrest warrants have been executed, the success is only apparent. Côte d’Ivoire’s willingness to cooperate with the Court in surrendering Gbagbo is not surprising. Gbagbo, the former President of Côte d’Ivoire (2000–2011), is charged with crimes against humanity and war crimes targeting civilian supporters of the opposing candidate in the presidential elections of 2010.129 The opponent was Ouattara, now the President of Côte d’Ivoire. Therefore, the crimes and the persons charged are of the same nature as in the Situation in Kenya, i.e. crimes committed in the aftermath of a national election. But the scenario is the opposite: the persons charged are now in power in Kenya, while in Côte d’Ivoire the accused are the losing candidate and his backers. Moreover, although it did not refer the crimes committed in its territory to the icc, Côte d’Ivoire accepted the Court’s jurisdiction by way of an express declaration, as a non-State Party to the icc Statute. Implicit therein can be considered the State’s willingness that at least some of those

126 127 128 129

of the Rome Statute (2012) and icc, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (2012) supra n 98. icc, Prosecutor v Francis Kirimi Muthaura amd Uhuru Muigai Kenyatta Decision on the withdrawal of charges against Mr Muthaura (2013) supra n 100. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on the withdrawal of charges against Mr Kenyatta (2015) supra n 110. Supra Section 3.C, n 106 and corresponding text. icc, Situation in the Republic of Côte d’Ivoire Warrant Of Arrest For Laurent Koudou Gbagbo (2011) supra n 116.

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crimes be investigated and prosecuted by the icc. The situation of Côte d’Ivoire is analogous – in this respect – to that of Uganda, the drc and the car. 5

Reasons and Remedies for Non-compliance

The previous analysis of the Court’s practice has shown that the cooperation of the territorial State, as the State most directly concerned with the crimes in question, is the one most needed. Because of the trigger mechanism of the Court’s jurisdiction,130 this State is under an obligation to cooperate with the Court in all situations examined above, qua a State party to the icc Statute, a State that has accepted the jurisdiction of the Court or a State under an obligation to cooperate, overriding any conflicting obligation under a Chapter 7 unsc resolution. With the exception of the specific investigative steps that a Pre-Trial Chamber may authorise the Prosecutor to take within the territory of a State Party (if it has determined that the State is clearly unable to execute a request for cooperation),131 the icc has no power to execute its requests directly. Where the authorities of the State are alleged to be involved in the crime in question, however, it is undesirable to leave the execution of the measure sought under the control of the requested State. On a practical level, in addition to possible problems with wilful non-­ compliance, the most pressing problem does not arise from States not having adopted implementing and other relevant legislation. It is rather the unavailability of any authority or any component of the State judicial system competent to execute the Court’s requests for cooperation under Part ix icc Statute. Where the lack of cooperation depends on inability, this could be overcome by allowing the execution of the Court’s request for cooperation directly by the organs of the Court or by other entities such as a peacekeeping force. The practice of the ad hoc Tribunals demonstrates that the assumptions underpinning their original Statutes and Rules – namely, that arrests and surrenders would be conducted by national authorities – proved in practice to be overly-optimistic. The use of military or peacekeeping forces proved effective for the icty, which was able to secure suspects as a result of execution of icty orders by nato-led troops (i.e. ifor and sfor).132 Indeed, significant numbers 130 Supra Section 2.C. 131 See supra n 5 and corresponding text. 132 Gaeta, ‘Is nato Authorized or Obliged to Arrest Persons Indicted by the International Criminal Tribunal for the Former Yugoslavia?’ (1998) 9 European Journal of International Law 174.

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of arrests did not occur within the icty context until the enactment of Rule 59 bis icty rpe, which permitted the transmission of arrest warrants to peacekeepers deployed in Bosnia-Herzegovina and a willingness on the part of these forces to interpret their force mandates in a manner consistent with detention of indictees on the Tribunal’s behalf. The icc should explore both the willingness and modalities of peacekeeping forces deployed on the territory of relevant States apprehending persons indicted by the Court.133 In the African region, there are peacekeeping forces that could be used to secure suspects on behalf of the Court – e.g. the un Mission in South Sudan (unmiss), the African Union/United Nations Hybrid operation in Darfur (unamid) and the un Organization Stabilization Mission in the drc (monusco). These peacekeeping forces’ mandates are restrictive and they are not authorised to make arrests. However, the mandates of both forces could be extended to include the arrest and detention of icc indictees. A precedent in this respect is unsc resolution 1638 (2005),134 whereby the Security Council included the apprehension, detention and transfer to the Special Court for Sierra Leone of former Liberian President Charles Taylor in the mandate of the United Nations Mission in Liberia (unmil). Charles Taylor was eventually arrested by the authorities of Nigeria on 29 March 2006, handed over to unmil peacekeepers and transferred by the latter to Sierra Leone for prosecution before the Special Court for Sierra Leone.135 Certain peacekeeping missions already include in their mandate the task of cooperating with local enforcement authorities in the apprehension of suspects. This the case, in particular, of the United Nations 133 For this suggestion, referred to the otp, see icc-otp, ‘Informal expert paper. Fact-finding and investigative functions of the Office of the Prosecutor, including international cooperation’ (2003) supra n 21 at para 9. The Prosecutor may apply such means of cooperation as Memorandum of Understanding with international organisations such as unhcr, un Headquarters, and nato. The existing (confidential) mou between nato and the icty, which sets forth procedures to be followed in the case of apprehension of indictees by nato-led peacekeeping forces, may provide a point of reference for a future attempt at drafting the latter, although this example also provides an illustration of a number of pitfalls to be avoided with regard to such agreements. See para 107. See also Zhou, ‘The Enforcement of Arrest Warrants by International Forces: From the icty to the icc’ (2006) 4 Journal of International Criminal Justice 202. 134 unsc Res 1638, 11 November 2005, S/RES/1638 (2005). 135 The other – unsuccessful – precedent is unosom ii (the Second United Nations Operation in Somalia), authorized to arrest Mohamed Farrah Aidid by unsc Res 837, 6 June 1993, S/RES/837 (1993b). See Frulli, ‘A Turning Point in International Efforts to Apprehend War Criminals: The un Mandates Taylor’s Arrest in Liberia’ (2006) 4 Journal of International Criminal Justice 351.

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Multidimensional Integrated Stabilization Mission in the Central African Republic (minusca), authorised ‘[t]o support and work with the Transitional Authorities to arrest and bring to justice those responsible for war crimes and crimes against humanity in the country, including through cooperation with States of the region and the icc’.136 As to willingness, the experience of the ad hoc Tribunals proved that even with its far-reaching powers based on Chapter 7 un Charter (expressed inter alia through Art. 29 icty Statute and Art. 28 ictr Statute, Rule 7 bis (b) in conjunction with Rule 39 (iii), and Rule 54 bis icty rpe), the Prosecutor of the Tribunals had to surmount reluctance and even opposition from some States in order to ensure their cooperation. It has mainly been diplomatic support from key governments, the unsc and the eu that has ensured the cooperation of reluctant States with the Tribunals.137 The success of the eu in securing suspects on behalf of the icty shows the pivotal role that regional organisations can play in apprehending suspects. The eu secured suspects from Croatia and Serbia for the icty by ordering side payments and incentives.138 When Serbian officials failed in surrendering Ratko Mladić to the Tribunal, the eu suspended a Stabilization and Association Agreement which forced Serbia to cooperate in Mladić’s arrest. In addition, the eu made Croatia’s accession to the Union conditional on full cooperation with the icty and the surrender of former general Godovina.139 The icc could also use regional bodies and international organisations to secure suspects. The conditions under which the eu was able to put under pressure the States of the former Yugoslavia, qua States candidates to accession subject to the mechanism of conditionality, are hardly replicable. The eu, however, could provide incentives to State Parties so that they cooperate with the icc. The icc has a cooperation and assistance agreement with the eu

136 unsc Res 2149, 10 April 2014, S/RES/2149 (2014) at para 30(f). 137 icc-otp, ‘Informal expert paper. Fact-finding and investigative functions of the Office of the Prosecutor, including international co-operation’ (2003) supra n 21 at para 5. 138 Wouters and Basu, ‘The Creation of a Global Criminal Justice System: the European Union and the International Criminal Court’ in Ryngaert (ed), The effectiveness of international criminal justice (Antwerp: Intersentia, 2009) 117. 139 Nsereko, ‘Cooperation with the Court on Matters of Arrest and Surrender of Indicted Fugitives: Lessons from the Ad Hoc Tribunals and National Jurisdictions’ in Doria, Gasser and Bassiouni (eds), The legal regime of the International Criminal Court: essays in honour of Professor Igor Blishchenko (Leiden: Martinus Nijhoff, 2009) 975–999. See also Roper, ‘State Co-Operation and International Criminal Court Bargaining Influence in the Arrest and the Surrender of Suspects’ (2008) 21 Leiden Journal of International Law 457.

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which was signed in 2006 and facilitates cooperation, support and assistance to the Court.140 The au is another regional organisation that could be used to secure suspects on the Court’s behalf. A draft relationship agreement between the Court and the au was finalised in 2005 with the purpose of obtaining cooperation from the au in the Court’s investigations but the au has not yet signed it.141 The au has criticised the Court as unfairly targeting Africans. This view is unavoidable in the current circumstances, where all the seven situations before the Court are from Africa.142 Non-territorial States – usually not directly connected with the alleged crimes – can also play an essential role by directly executing a Court’s request (e.g. an arrest warrant) or by putting pressure on the State directly concerned, when the latter is able but unwilling to cooperate with the icc. These States’ cooperation does not seem to depend on the applicable legal regime but rather on the political context of each given case. Not surprisingly, for example, a number of European States cooperated in the situation of the drc143 in relation to the arrest and surrender of suspects for offences against the administration of justice: cases, therefore, not highly sensitive, but of little political relevance. Far more reluctant have been African States in the execution of the arrest warrant against Al Bashir and other Sudanese nationals, independently of their being State Parties to the icc Statute or not. Willingness (of territorial and non-territorial States alike) does not seem to be prompted by a unsc-backed obligation to cooperate. That a unsc referral under Art. 13(b) icc Statute greatly enhances the Prosecutor’s authority to compel cooperation from States, including those not Party to the icc Statute, is a theoretical assumption with no empirical basis.144

140 icc, Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, 10 April 2006, ICC-PRES/01-01-06. 141 On the critical stance of the au vis-à-vis the icc see infra. 142 Eberechi, ‘Armed Conflicts in Africa and Western Complicity: A Disincentive for African Union’s Cooperation with the icc’ (2009) 3 African Journal of Legal Studies 53; Tladi, ‘When Elephants Collide it is the Grass That Suffers: Cooperation and the Security Council in the Context of the au/icc Dynamic’ (2014) 7 African Journal of Legal Studies 381. See also, Bekou and Shah, ‘Realizing the Potential of the International Criminal Court: The African Experience’ (2006) 6 Human Rights Law Review 499. 143 Supra Section 3.A. 144 Akande, ‘The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the icc’ (2012) 10 Journal of International Criminal Justice 299.

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When the Court exercises its jurisdiction pursuant to a State referral or a proprio motu action of the Prosecutor in a situation in which the unsc is engaged under its Chapter 7 un Charter mandate (provided only that the unsc has not requested the deferral of icc proceedings in conformity with Art. 16 icc Statute), the text of the icc Statute implies that findings of non-cooperation under Art. 87 icc Statute would be referred only to the asp, not to the unsc, because the latter did not ‘refer the matter’.145 It should nonetheless be possible for the Court to call upon the unsc for its support more broadly,146 particularly where un-mandated personnel are in a position to gather evidence, protect victims and witnesses or arrest suspects. Under the present political realities, however, resort to the unsc enforcement mechanism under Chapter 7 un Charter seems very unlikely. So far, the unsc has never acted upon a judicial finding of a State’s failure to cooperate with the icc pursuant to Art. 87(7) icc Statute. In relation to the Situation in Darfur, Sudan only, following the issuance of arrest warrants against Harun and Kushayb – but before the Prosecutor’s announcement that a third case would be brought against President Al Bashir – the President of the unsc, on behalf of the unsc, recalled its decision, under Chapter 7 un Charter, in unsc Resolution 1593 (2005) that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the icc and the Prosecutor and urged ‘the Government of Sudan and all other parties to the conflict in Darfur [to] […] cooperate fully

145 According to Art. 87(7) icc Statute: ‘Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council’. Moreover, under Art. 87(5)(b) icc Statute: ‘[w]here a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council’. 146 Art. 87(6) icc Statute allows the Court to ‘ask any intergovernmental organisation to provide […] forms of cooperation and assistance which may be agreed upon with such an organisation and which are in accordance with its competence or mandate’ and the Relationship Agreement between the icc and the un includes a broad commitment to cooperate on the part of the un. For its part, the unsc has shown itself capable at least in limited circumstances of linking matters that ‘shock the conscience of humanity’ to its Chapter 7 un Charter mandate.

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with […] the Court’.147 This Presidential Statement, in response to the report of the Prosecutor to the unsc pursuant to unsc Resolution 1593 (2005) of 5 December 2007,148 however, was nothing but a ‘soft’ re-statement of the obligation already incumbent upon Sudan to cooperate with the Court under Resolution 1593 and in accordance with requirements of the icc Statute. 6

Concluding Remarks

The above discussion prompts the question of whether the icc cooperation regime could have been – or could be – drafted differently so as to make it more effective. In other words, whether a different cooperation model would lead to more cooperation. The major weaknesses of the Court do not seem to derive from the deficiencies of its legal apparatus, i.e. the lack of directly enforceable powers, the conventional nature of the duty to respond to the Court’s requests, the exceptions to the general obligation to cooperate or the general structural features of the icc. They do not lie either in lack of, or poor, implementation of the icc Statute at the national level, leaving the States concerned without the legal means to execute the Court’s requests for cooperation in accordance with the provisions of Part ix icc Statute. Pointing to the lack of political will on the part of the States most directly concerned or the scarce political support by the other States (Parties and nonParties to the icc Statute) and international organisations alike, also unveils only part of the problem. No more enlightening is the position of those who advocate for further unsc involvement in backing the Court’s requests for cooperation as well as in following-up the Court’s findings that a State failed to cooperate with the Court, while under an obligation to do so. At the core of the Court’s stumbling in the pursuance of its objective to put an end to impunity are some of the policy choices of its organs.

147 unsc Presidential Statement, Reports of the Secretary-General on the Sudan, 16 June 2008, un Doc. S/PRST/2008/21. 148 icc-otp, ‘Sixth Report of the Prosecutor of the International Criminal Court to the un Security Council pursuant to un Security Council Resolution 1593 (2005)’, 5 December 2007, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office% 20of%20the%20prosecutor/reports%20and%20statements/statement/Pages/sixth% 20report%20of%20the%20prosecutor%20of%20the%20international%20criminal% 20court_%20to%20the%20un%20se.aspx (last accessed 25 February 2016).

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The first responsibility is on the otp and the way it has implemented its general strategy to focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility.149 Going after those who bear the greatest responsibility for the most serious crimes is one thing. Systematically targeting sitting or former Heads of State is another, especially when prosecutions are brought in relation to crimes allegedly committed in the violence surrounding the presidential elections which put them into power or deposed them. Equally determinative of the outcome of the Court’s proceedings is the course of action determined by the Judges of the Court. This is particularly evident in the decision to exercise the Court’s jurisdiction in relation to offences against the administration of justice. It is fair – and to some extent a necessity – for the Court to protect the integrity of its proceedings. It looks odd, however, to any observer of the Court’s activity – with or without a political stake therein – to realise that a hugely disproportionate number of the accused before the Court are facing trials for contempt of court, rather than for the most serious crimes of concern to the international community as a whole within the Court’s jurisdiction. Offences against the administration of justice should be prosecuted. But when they amount to most of the Court’s case-load for a given situation, one is left to wonder whether this is a proper, or at least acceptable, utilisation of the resources of the Court. Not to mention that this stands at odds with the stated otp policy referred to above. A wise prosecutorial and judicial strategy ought to result in the selection of cases where not only the suspects can be brought to trial but also the evidence can stand up in court and meet the ‘beyond any reasonable doubt’ standard of proof. Here again, that some cases fail either at the stage of the confirmation of charges or at trial is inherent to any fairly functioning criminal justice system. When the decisions to withdraw or to decline to confirm the charges and the acquittals at trial outnumber the findings of guilty and subsequent conviction to the point that the sentencing of those brought before the icc becomes the exception, one cannot but wonder where the deficit lies. One could hardly blame it on the fairness of the criminal proceedings before the Court. No criminal procedure should ever be said to be too fair to the rights of the accused. Are the insufficient powers afforded to the Prosecutor or the other organs of the Court and/or the failure to cooperate on the part of States and other entities to be blamed? This author does not believe so. It rather argues that different policy choices in the selection of cases ought to bring about different, more satisfactory results for a Court operating with a 149 See supra n 25 and corresponding text.

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135.39 million euro annual budget.150 Those who do not share this conviction should conclude instead that the Court, as a giant without arms and legs,151 is inherently unable to investigate and prosecute those very same crimes for the prevention and suppression of which it was instituted. Some of the limits of the icc cooperation regime are inherent to the reality of international politics and can hardly be overcome by international law. The real challenge is how to make it in the States’ interest to cooperate with the Court in particular, and in the repression of core international crimes, more generally. Political support can hardly be won by legal means. But sound policy choices may help. List of References Books and Journals

Akande, ‘International Law Immunities and the International Criminal Court’ (2004) 98 American Journal of International Law 407. Akande, ‘The Legal Nature of the Security Council Referrals to the ICC and its Impact on Al Bashirs Immunities’ (2009) 7 Journal of International Criminal Justice 333. Akande, ‘The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC’ (2012) 10 Journal of International Criminal Justice 299. Almqvist, ‘Complementarity and Human Rights: A Litmus Test for the International Criminal Court’ (2008) 30 Loyola of Los Angeles International and Comparative Law Review 335. Bekou and Cryer, ‘The International Criminal Court and Universal Jurisdiction: A Close Encounter’ (2007) 56 International and Comparative Law Quarterly 49. Bekou and Shah, ‘Realizing the Potential of the International Criminal Court: The African Experience’ (2006) 6 Human Rights Law Review 499. Bergsmo, Bekou and Jones, ‘Complementarity after Kampala: Capacity Building and the ICC’s Legal Tools’ (2010) 2 Goettingen Journal of International Law 791. Brighton, ‘Avoiding Unwillingness: Addressing the Political Pitfalls Inherent in the Complementarity Regime of the International Criminal Court’ (2012) 12 International Criminal Law Review 629.

150 See asp, Proposed Programme Budget for 2015 of the International Criminal Court, 18 September 2014, ICC-ASP/13/10. 151 Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) supra n 1.

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Burke-White, ‘Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice’ (2008) 49 Harvard International Law Journal 53. Carter, ‘Principle of Complementarity and the International Criminal Court: The Role of Ne Bis in idem’ (2010) 8 Santa Clara Journal of International Law 165. Carter, ‘Future of the International Criminal Court: Complementarity as a Strength or a Weakness?’ (2013) 12 Washington University Global Studies Law Review 451. Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of International Law 2. Ciampi, ‘Other Forms of Cooperation’ in Cassese, Gaeta and Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: OUP, 2001a) 1705. Ciampi, ‘The Obligation To Cooperate’ in Cassese, Gaeta and Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: OUP, 2001b) 1607. Ciampi, ‘Current and Future Scenarios for Arrest and Surrender to the ICC’, (2006) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 719. Ciampi, ‘The Proceedings against President Al Bashir and the Prospects of their Suspension under Article 16 ICC Statute’ (2008) 6 Journal of International Criminal Justice 885. Ciampi, ‘La Cour pénale internationale et les Nations Unies’ in Fernandez and Pacreau (eds), Statut de Rome de la Cour pénale internationale. Commentaire article par article (Paris: Pedone, 2012) 77. Cross and Williams, ‘Recent Developments at the ICC: Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui – A Boost for Co-Operative Complementarity?’ (2010) 10 Human Rights Law Review 336. Demirdjian, ‘Armless Giants: Cooperation, State Responsibility and Suggestions for the ICC Review Conference’ (2010) 10 International Criminal Law Review 181. Eberechi, ‘Armed Conflicts in Africa and Western Complicity: A Disincentive for African Union’s Cooperation with the ICC’ (2009) 3 African Journal of Legal Studies 53. Frulli, ‘A Turning Point in International Efforts to Apprehend War Criminals: The UN Mandates Taylor’s Arrest in Liberia’ (2006) 4 Journal of International Criminal Justice 351. Gaeta, ‘Is NATO Authorized or Obliged to Arrest Persons Indicted by the International Criminal Tribunal for the Former Yugoslavia?’ (1998) 9 European Journal of International Law 174. Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’ (2009) 7 Journal of International Criminal Justice 315. Greenawalt, ‘Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court’ (2009) 50 Virginia Journal of International Law 107.

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Hansen, ‘Critical Review of the ICC’s Recent Practice Concerning Admissibility Chal­ lenges and Complementarity’ (2012) 13 Melbourne Journal of International Law 217. Heller, ‘Sentence-Based Theory of Complementarity’ (2012) 53 Harvard International Law Journal 201. Heyder, ‘The U.N. Security Council’s Referral of the Crimes in Darfur to the International Criminal Court in Light of U.S. Opposition to the Court: Implications for the International Criminal Court’s Functions and Status’ (2006) 24 Berkeley Journal of International Law 650. Jurdi, ‘Some Lessons on Complementarity for the International Criminal Court Review Conference’ (2009) 34 South African Yearbook of International Law 28. Kaul, ‘The International Criminal Court: Current Challenges and Perspectives’ (2007) 6 Washington University Global Studies Law Review 575. Keller, ‘Practice of the International Criminal Court: Comments on the Complementarity Conundrum’ (2010) 8 Santa Clara Journal of International Law 199. Knoops and Amsterdam, ‘The Duality of State Cooperation within International and National Criminal Cases’ (2006) 30 Fordham International Law Journal 260. Kulundu, ‘The Rome Statute of the International Criminal Court and Complementarity: What Lurks in the Sub-Text?’ (2009) 18 Lesotho Law Journal 283. Magliveras, ‘The ICC Addresses Non-Cooperation by States Parties: The Malawi Decision’ (2013) 6 African Journal of Legal Studies 137. Mochochoko, ‘International Cooperation and Judicial Assistance’ in Lee (ed), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiation, Results (The Hague-London-Boston: Kluwer Law International, 1999) 305. Moffett, ‘Reparative Complementarity: Ensuring an Effective Remedy for Victims in the Reparation Regime of the International Criminal Court’ (2013) 17 The Inter­ national Journal of Human Rights 368. Mutyaba, ‘An Analysis of the Cooperation Regime of the International Criminal Court and Its Effectiveness in the Court’s Objective in Securing Suspects in Its Ongoing Investigations and Prosecutions’ (2012) 12 International Criminal Law Review 937. Newton, ‘The Complementarity Conundrum: Are We Watching Evolution or Eviscera­ tion?’ (2010) 8 Santa Clara Journal of International Law 115. Nouwen, ‘Complementarity in Practice: Critical Lessons from the ICC for R2P’ (2010) 21 Finnish Yearbook of International Law 53. Nsereko, ‘Cooperation with the Court on Matters of Arrest and Surrender of Indicted Fugitives: Lessons from the Ad Hoc Tribunals and National Jurisdictions’ in Doria, Gasser and Bassiouni (eds), The legal regime of the International Criminal Court: essays in honour of Professor Igor Blishchenko (Leiden: Martinus Nijhoff, 2009) 975. Oosterveld, Perry, McManus ‘The Cooperation of States with the International Criminal Court’ (2002) 25 Fordham International Law Journal 767. Rastan, ‘Testing Co-Operation: The International Criminal Court and National Authorities’ (2008) 21 Leiden Journal of International Law 431.

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Roper, ‘State Co-Operation and International Criminal Court Bargaining Influence in the Arrest and the Surrender of Suspects’ (2008) 21 Leiden Journal of International Law 457. Ryngaert, ‘International Criminal Justice and “Jus Post Bellum”: The Challenge of ICC Complementarity: A Case-Study of the Situation in Uganda’ (2011) 44 Revue Belge de Droit International 91. Sluiter, ‘The Surrender of War Criminals to the International Criminal Court’ (2003) 25 Loyola of Los Angeles International & Comparative Law Review 605. Sluiter, ‘Obtaining Cooperation from Sudan – Where Is the Law’ (2008) 6 Journal of International Criminal Justice 871. Stahn, ‘Libya, the International Criminal Court and Complementarity: A Test for Shared Responsibility’ (2012) 10 Journal of International Criminal Justice 325. Swart, ‘Arrest and Surrender’ in Cassese, Gaeta and Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: OUP, 2001) 1639. Tillier, ‘ICC Prosecutor and Positive Complementarity: Strengthening the Rule of Law’ (2013) 13 International Criminal Law Review 507. Tladi, ‘Cooperation, Immunities, and Article 98 of the Rome Statute: The ICC, Inter­ pretation, and Conflicting Norms’ (2012) 106 American Society of International Law Proceedings 307. Tladi, ‘When Elephants Collide it is the Grass That Suffers: Cooperation and the Security Council in the Context of the AU/ICC Dynamic’ (2014) 7 African Journal of Legal Studies 381. Vaid, ‘What Counts as “State Action” under Article 17 of the Rome Statute? Applying the ICC’s Complementarity Test to Non-Criminal Investigations by the United States into War Crimes in Afghanistan’ (2011) 44 New York University Journal of International Law and Politics 573. Wald, ‘Apprehending War Criminals: Does International Cooperation Work?’ (2012) 27 American University International Law Review 229. Weiner, ‘Prudent Politics: The International Criminal Court, International Relations, and Prosecutorial Independence’, (2013) 12 Washington University Global Studies Law Review 545. Wouters and Basu, ‘The Creation of a Global Criminal Justice System: the European Union and the International Criminal Court’ in Ryngaert (ed), The effectiveness of international criminal justice (Antwerp: Intersentia, 2009) 117. Zhou, ‘The Enforcement of Arrest Warrants by International Forces: From the ICTY to the ICC’ (2006) 4 Journal of International Criminal Justice 202.



Legal Cases and United Nations Documents

ICC, Prosecutor v Thomas Lubanga Dyilo Warrant of Arrest, ICC-01/04-01/06-2-tEN (10 February 2006). ICC, Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, 10 April 2006, ICC-PRES/01-01-06.

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ICC, Prosecutor v Bosco Ntaganda Warrent of Arrest, ICC-01/04-02/06-2-Anx-tENG (22 August 2006). ICC, Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman Warrant of Arrest for Ahmad Harun, ICC-02/05-01/07-2 (27 April 2007). ICC, Prosecutor v Germain Katanga Urgent Warrant of Arrest for Germain Katanga, ICC-01/04-01/07-1-US-tENG (2 July 2007). ICC, Prosecutor v Mathieu Ngudjolo Chui Warrant of Arrest for Mathieu Ngudjolo Chui, ICC-01/04-02/07-1-tENG (6 July 2007). ICC, Prosecutor v Jean-Pierre Bemba Gombo Warrant of Arrest for Jean-Pierre Bemba Gombo, ICC-01/05-01/08-1-tENG-Corr (23 May 2008). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1 (4 March 2009). ICC, Review Conference, 31 May–11 June 2010, RC/11. ICC, Prosecutor v Callixte Mbarushimana Warrant of Arrest for Callixte Mbarushimana, ICC-01/04-01/10-2-tENG (28 September 2010). ICC, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the Prosecutor’s Application for Summons to Appear for William Samoei  Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-01 (8 March 2011). ICC, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-01 (8 March 2011). ICC, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali and Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Application on Behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC Statute, ICC-01/09-01/11-19 (31 March 2011). ICC, Prosecutor v Francis Kirimi Muthaura amd Uhuru Muigai Kenyatta Decision on the withdrawal of charges against Mr Muthaura, ICC-01/09-02/11-696 (18 March 2013). ICC, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, ICC-01/0902/11-96 (30 May 2011). ICC, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, ICC-01/09-01/11101 (30 May 2011). ICC, Situation in the Libyan Arab Jamahiriya Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi, ICC-01/11-13 (27 June 2011).

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ICC, Situation in the Libyan Arab Jamahiriya Warrant of Arrest for Saif Al-Islam Gaddafi, ICC-01/11-14 (27 June 2011). ICC, Situation in the Libyan Arab Jamahiriya Warrant of Arrest for Abdullah Al-Senussi, ICC-01/11-15 (27 June 2011). ICC, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, ICC-01/09-02/11-274 (30 August 2011). ICC, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, ICC-01/09-01/11-307 (30 August 2011). ICC, Prosecutor v Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi Decision to Terminate the Case Against Muammar Mohammed Abu Minyar Gaddafi, ICC-01/11-01/11-28 (22 November 2011). ICC, Situation in the Republic of Côte d’Ivoire Warrant Of Arrest For Laurent Koudou Gbagbo, ICC-02/11-01/11-1 (23 November 2011). ICC, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red (23 January 2012). ICC, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373 (23 January 2012). ICC, Prosecutor v Sylvestre Mudacumura Decision on the Prosecutor’s Application under Article 58, ICC-01/04-01/12-1-Red (13 July 2012). ICC, Situation in the Republic of Mali Decision Assigning the Situation in the Republic of Mali to Pre-Trial Chamber II, ICC-01/12-01 (19 July 2012). ICC, Prosecutor v Walter Osapiri Barasa Warrant of arrest for Walter Osapiri Barasa, ICC-01/09-01/13-1-Red2 (2 August 2013). ICC, Prosecutor v Simone Gbagbo Requête de la République de Côte d’Ivoire sur la recevabilité de l’affaire le Procureur c. Simone Gbagbo et demande de sursis à exécution en vertu des articles 17, 19 et 95 du Statut de Rome, ICC-02/11-01/12-11-Red (1 October 2013). ICC, Prosecutor v Abdullah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus Public redacted Decision terminating the proceedings against Mr Jerbo, ICC-02/0503/09-512-Red (4 October 2013). ICC, Prosecutor v Simone Gbagbo Decision on the conduct of the proceedings following Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo, ICC-02/11-01/12-15 (15 November 2013).

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ICC, Prosecutor v Saif Al-Islam Gaddafi Decision on matters related to Libya’s duties to cooperate with the Court, ICC-01/11-01/11-563 (11 July 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Defence Response to ‘Prosecution notice regarding the provisional trial date’ (ICC-01/09-02/11-944) and Request to Terminate the Case against Mr Kenyatta, ICC-01/09-02/11 (10 September 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta, Defence Response to ‘Prosecution notice regarding the provisional trial date’ (ICC-01/09-02/11-944) and Request to Terminate the Case against Mr Kenyatta, ICC-01/09-02/11-945-Red (10 September 2014). ICC, Prosecutor v William Samoei Ruto and Joshua Arap Sang Judgment on the appeals of William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber V (A) of 17 April 2014 entitled ‘Decision on Prosecutor’s Application for Witness Summonses and resulting Request for State Party Cooperation’, ICC-01/0901/11-1598 (9 October 2014). ICC, Prosecutor v Saif Al-Islam Gaddafi Defence request concerning Mr Gaddafi’s continued detention in Libya, ICC-01/11-01/11 (19 November 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a further adjournment, ICC-01/09-02/11-981 (3 December 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, ICC-01/09-02/11-982 (3 December 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, ICC-01/09-02/11-983 (5 December 2014). ICC, Prosecutor v Saif Al-Islam Gaddafi Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council, ICC-01/11-01/11-577 (10 December 2014). ICC, Prosecutor v Blé Goudé Decision on the confirmation of charges against Charles Blé Goudé, ICC-02/11-02/11-186 (11 December 2014). ICC, Prosecutor v Blé Goudé Decision on the confirmation of charges against Charles Blé Goudé, ICC-02/11-02/11-186 (11 December 2014) ICC, Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia Public Redacted Version of Application for Review pursuant to Article 53(3)(a) of the Prosecutor’s Decision of 6 November 2014 not to initiate an investigation in the Situation, ICC-01/13-3-red (29 January 2015). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on the withdrawal of charges against Mr Kenyatta, ICC-01/09-02/11-1005 (13 March 2015). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision following the Prosecutor’s request for an order further clarifying that the Republic of South Africa is under the obligation to immediately arrest and surrender Omar Al Bashir, ICC-02/05-01/09242 (13 June 2015).

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ICC, Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, ICC-01/13-34 (16 July 2015). ICC, Prosecutor v Uhuru Muigai Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber V(B)’s “Decision on Prosecution’s application for a finding of noncompliance under Article 87(7) of the Statute”, ICC-01/09-02/11-1032 (19 August 2015). UN Secretary-General, Guidance on contacts with persons who are the subject of arrest warrants or summonses issued by the International Criminal Court, 8 April 2013, UN Doc A/67/828–S/2013/210. UNSC Res 827, 25 May 1993, S/RES/827 (1993). UNSC Res 837, 6 June 1993, S/RES/837 (1993). UNSC Res 955, 8 November 1994, S/RES/955 (1994). UNSC Res 1593, 31 March 2005, S/RES/1593 (2005). UNSC Res 1638, 11 November 2005, S/RES/1638 (2005). UNSC Presidential Statement, Reports of the Secretary-General on the Sudan, 16 June 2008, UN Doc. S/PRST/2008/21. UNSC Res 1970, 26 February 2011, S/RES/1970 (2011). UNSC Res 2149 (2014), 10 April 2014, S/RES/2149 (2014). UNSC Res 2174, 27 August 2014, S/RES/2174 (2014).



Other Documents



Online Materials

ASP, Proposed Programme Budget for 2015 of the International Criminal Court, 18 September 2014, ICC-ASP/13/10.

Bensouda, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on concluding the preliminary examination of the situation referred by the Union of Comoros: “Rome Statute legal requirements have not been met”’, ICC, 6 November 2014, available at: www.icc-cpi.int/en_menus/icc/press%20and%20media/ press%20releases/Pages/otp-statement-06-11-2014.aspx (last accessed 25 February 2016). ICC, ‘Declarations Art. 12(3)’, ICC, available at: www.icc-cpi.int/en_menus/icc/structure% 20of%20the%20court/registry/Pages/declarations.aspx (last accessed 25 February 2016). ICC, ‘The States Parties to the Rome Statute’, ICC, available at: www.icc-cpi.int/en_ menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20 rome%20statute.aspx (last accessed 25 February 2016). ICC-OTP, ‘Informal expert paper. Fact-finding and investigative functions of the Office of the Prosecutor, including international co-operation’, ICC, 2003, available at: www .icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20

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the%20prosecutor/network%20with%20partners/informal%20expert%20 ­consultations/Pages/informal%20expert%20consultations.aspx (last accessed 25 February 2016). ICC-OTP, ‘Paper on some policy issues before the Office of the Prosecutor’, ICC, September 2003, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20 the%20court/office%20of%20the%20prosecutor/policies%20and%20strategies/ Pages/paper%20on%20some%20policy%20issues%20before%20the%20 office%20of%20the%20prosecutor.aspx (last accessed 25 February 2016). ICC-OTP, ‘Sixth Report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to UN Security Council Resolution 1593 (2005)’, ICC, 5 2007, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/ office%20of%20the%20prosecutor/reports%20and%20statements/statement/ Pages/sixth%20report%20of%20the%20prosecutor%20of%20the%20 ­international%20criminal%20court_%20to%20the%20un%20se.aspx (last accessed 25 February 2016). UN Online News Centre, ‘African war crimes suspect transferred to International Criminal Court’, UN News Centre, 3 2008, available at: www.un.org/apps/news/story .asp?NewsID=27267#.VdhEGPHov3g (last accessed 25 February 2016). ICC-OTP, ‘Seventeenth report of the Prosecutor of International Criminal Court to the UN Security Council pursuant to UNSCR 1593 (2005)’, ICC, 5 2013, available at: www .icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20 the%20prosecutor/reports%20and%20statements/statement/Pages/17th-reportUNSC-Darfur.aspx (last accessed 25 February 2016). ICC Press Release, ‘ICC welcomes Côte d’Ivoire as a new State Party’, ICC, 19 2013, available at: www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/ Pages/pr884.aspx (last accessed 25 February 2016). ICC-OTP, ‘Policy Paper on Preliminary Examinations’, ICC, November 2013, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20 the%20prosecutor/policies%20and%20strategies/Pages/draft%20policy%20 paper%20on%20preliminary%20examinations.aspx (last accessed 25 February 2016). ICC-OTP, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr Uhuru Muigai Kenyatta’, ICC, 5 2014, available at: www.icc-cpi.int/en_menus/icc/press%20and%20media/press% 20releases/pages/otp-statement-05-12-2014-2.aspx (last accessed 25 February 2016). ICC-OTP, ‘Nineteenth Report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to the UNSCR 1593 (2005)’, ICC, 23 June 2014, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/ office%20of%20the%20prosecutor/reports%20and%20statements/statement/ Pages/otp-19-th-report-to-UNSC-Darfur.aspx (last accessed 25 February 2016).

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ICC-OTP, ‘Statement to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011), Mrs Fatou Bensouda, Prosecutor of the International Criminal Court’, ICC, 12 November 2014, available at: www.icc-cpi.int/en_menus/ icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/ reports%20and%20statements/statement/Pages/otp-statement-12-11-2014.aspx (last accessed 25 February 2016). ICC-OTP, ‘Twenty-first Report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to the UNSC 1593 (2005)’ ICC, 29 2015, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of% 20the%20prosecutor/reports%20and%20statements/statement/Pages/21-rep -unsc.aspx (last accessed 25 February 2016).

The International Criminal Court Cooperation Regime – A Practical Perspective from the Office of the Prosecutor Pascal Turlan 1 Introduction After just over a decade of operational existence at the time of writing,1 the icc, including its otp, has achieved a lot. Through its preliminary examinations, investigations, prosecutions, trials and its judicial decisions,2 it has now become an internationally recognised and respected player, contributing to a more just world and being called upon to deliver by those in search of fair and independent justice. The otp itself has achieved much in a short period of time, indeed probably more than might have been expected when it started operating. Yet, much more remains to be done. The otp intends to continue to play its part: to analyse information received and additional information collected on situations where crimes under the jurisdiction of the icc are alleged to have been committed, to open investigations when there is a reasonable basis to believe that indeed such crimes have been committed, to investigate in these situations and to prosecute those who bear the greatest responsibility for these crimes. This is the mandate that the State Parties gave to the otp. However, although able to pledge to execute it as effectively as possible, the otp cannot fulfil this promise alone. It requires the constant and consistent assistance of all relevant stakeholders to play their part in fulfilling it. First and foremost, the otp needs the assistance of the Court’s State Parties to do so: this is their responsibility and this is their duty, as the icc Statute emphasises.3 The Preamble to the icc Statute recalls that, being the sovereign actors in international law and the primary responsible for prosecution of serious crimes of concern to the international community (principle of complementarity),4 States have a responsibility to ensure that justice is rendered, if not by them, 1 The icc Statute entered into force on 1 July 2002. 2 For further information on the structure and activities of the otp, see generally icc, ‘Office of the Prosecutor’, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20 court/office%20of%20the%20prosecutor (last accessed 19 October 2015). 3 See Art. 86 icc Statute. 4 Preamble, icc Statute.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_004

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then before the Court they created – the icc – and to facilitate the execution of the icc’s mandate. As much as complementarity is the cornerstone of the system agreed in Rome, a system put in place to guarantee accountability and that those responsible for the gravest crimes will face justice,5 cooperation by these same State Parties is, in turn, the cornerstone of the icc’s capacity to fulfil the mandate given to it by these States.6 From the perspective of the otp, after more than ten years of operation at the time of writing, it is a demonstrated fact that cooperation is absolutely critical for the Office’s ability to execute its mandate to investigate and prosecute. Moreover, without cooperation, the Court’s capacity and impact are severely diminished and the mandate it was given in Rome will remain an inaccessible goal. Although the otp has learnt from its first years of activities and progressively adapted its strategies to the concrete challenges faced in this field, and although the Court itself is now a well-established and recognised institution, fostering, developing, securing and maintaining cooperation from its State Parties, other States and non-State actors remains a challenge in and of itself, too often met with disillusion and disappointment. The purpose of this chapter is therefore to highlight the main features of the icc Statute cooperation regime in operational terms, from the viewpoint of the otp, to outline some of the challenges faced by the Office in securing cooperation, and to offer some perspective on possible solutions and avenues explored to address such challenges. 2

The International Criminal Court Cooperation Regime

As noted above, it is clear that Part ix icc Statute, setting out the icc cooperation regime, is a key component of the icc system. For successful implementation of its mandate, the icc heavily depends on the support generated from its stakeholders. Such support is vital in realising the goals of the Court. As a treaty body, the icc does not have a police force or enforcement body of its own. By contrast to the ad hoc icty7 and ictr,8 set up pursuant to unsc 5 That is, either before the relevant national jurisdictions of the State Parties or before an international court of last resort established to take over this responsibility in case of State deficiencies. See Arts. 1 and 17 icc Statute. 6 See Part ix icc Statute. 7 Established pursuant to unsc Res 827, 25 May 1993, S/RES/827 (1993). 8 Established pursuant to unsc Res 955, 8 November 1994, S/RES/955 (1994).

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resolutions adopted on the basis of Chapter 7 un Charter, the icc does not have the legal basis and tools that result from a un Chapter 7 mandate. The icc essentially relies on State Parties – as well as, on a regular basis, non-State Parties and other actors, such as international and regional organisations – to implement its decisions and to support its work. This includes, among others, the crucial areas of evidence collection, witness protection, tracking and seizing of financial assets belonging to or associated with perpetrators of crimes, arrest and surrender of individuals against whom the Court has issued warrants and execution of sentences.9 Looking more specifically at the otp mandate, judicial cooperation from State Parties is paramount to the effectiveness of its preliminary examinations, investigations and prosecutions. With a strictly limited legal capacity to operate, the otp depends on territorial authorities to enforce its mandate. Indeed, the otp simply cannot access the territory where the crimes occurred and do its work if it is not supported through swift and effective cooperation, whether in terms of case-specific judicial assistance, based on sound legal advice, or general cooperation and support to maintain a favourable environment. The unique nature of the icc, including the complementarity principle that is at the heart of the icc Statute system and gives priority to States to prosecute such crimes, actually led to the inclusion of a full chapter setting out the cooperation regime in the icc Statute, Part ix icc Statute, which is absent from the Statutes of ad hoc international Tribunals, for instance. While the constitutive documents of the two ad hoc Tribunals include a general reference to the duty of States to cooperate with them10 and one specific Article stating this obligation,11 neither go into such level of detail as Part ix icc Statute. Throughout its seventeen Articles, the drafters of Part ix icc Statute – devoted to international cooperation and judicial assistance – tried to cover the scope and the various modalities of execution of this obligation, the types of cooperation needed, the possible scenarios (competing requests, 9 10

11

See Part ix icc Statute. See e.g. with regard to the icty, unsc Res 827 (1993) supra n 7 at para 4 (‘all States shall cooperate fully with the International Tribunal and its organs’). For the ictr, see unsc Res 955 (1994) supra n 8 at para 2. Art. 29 icty Statute and Art. 28 ictr Statute, both entitled Co-operation and judicial assistance, provide similarly. Art. 29 icty Statute provides as follows: ‘1. States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. 2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber […]’.

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rule of specialty, etc.) and cooperation challenges and the relevant procedures to implement. Opening Part ix icc Statute, Art. 86 icc Statute provides for the general obligation of State Parties to ‘cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court’. Read in conjunction with the rest of Part ix icc Statute as well as with Art. 120 icc Statute, which spells out clearly that ‘no reservations may be made to this Statute’, this provides for a strong legal obligation vested in the State Parties to assist the Court they set up in executing its mandate. Art. 87 icc Statute then deals with the general modalities for the Court to send requests for cooperation and for the State Parties to implement them pursuant to such obligation and Art. 88 icc Statute spells out the duty of State Parties to ensure that there are ‘procedures available under their national law for all of the forms of cooperation which are specified under this Part’. Following these general provisions, Arts. 89 to 92 icc Statute deal specifically with requests for arrest and surrender, their content (Art. 91 icc Statute) and modalities and the resolution of possible challenges, the reaction to competing requests (Art. 90 icc Statute) and the possibility to request provisional arrest (Art. 92 icc Statute). Art. 98 icc Statute deals specifically with the issue of possible waivers of immunity and consent to surrender in case of pre-existing international agreements imposing the consent of a sending State to actually surrender a person of that State to the Court. Arts. 93, 96, 97 and 99 icc Statute detail the different forms of cooperation envisaged, the content and format of the related requests, their modes of execution and the possibility to open consultations in case of difficulties, with Arts. 94 and 95 icc Statute describing the process to follow in case of a State requesting to postpone its execution of a request in respect of ongoing investigation or prosecution (Art. 94 icc Statute) or in respect of an admissibility challenge (Art. 95 icc Statute). Finally, Art. 93(10) icc Statute deals with the reverse aspect of complementarity, and foresees the possibility for the icc to cooperate with its State Parties in their investigations. As detailed and comprehensive as it is, the icc cooperation regime enshrined in Part ix icc Statute does not provide for many ways to ‘oblige’ a State to cooperate with the Court against its will. This regime is a unique balance between the ‘vertical’ regime of the ad hoc Tribunals and the ‘horizontal’ regime of inter-State mutual legal assistance. Indeed, while Art. 86 icc Statute sets out a clear legal obligation to cooperate for State Parties, it does not provide for a remedy in case of failure to execute this obligation and their actual cooperation depends on the goodwill of the States. Although Art. 87(7) provides for a referral procedure to the asp – or to the unsc

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if this body referred the situation to the Court, ‘[w]here a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute’, this does not provide for an immediate, practical remedy to a situation of non-cooperation. The main consequence is that, in practical terms, the icc cooperation regime is characterised by its horizontal nature, broadly similar to a regime of mutual legal assistance between States, and based on willingness and the goodwill of its stakeholders, with no real enforcement capacity. In the field of arrest and surrender, numerous examples of the incapacity of the Court to impose its decisions absent the political will of its State Parties can be found, for instance, from the findings on non-cooperation issued by the Court in the case of Prosecutor v Omar Hassan Ahmad Al Bashir,12 to take only one example. In the areas of cooperation listed in Art. 93 icc Statute, numerous patterns of non-cooperation can be identified that did not, however, to date, entail 12

See, among others, the decision of Pre-Trial Chamber i from 12 December 2011, in which it decided that the Republic of Malawi failed to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Al Bashir during his visit on 14 October 2011. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-139-Corr (13 December 2011). See also the decision of 13 December 2011, in which the Pre-Trial Chamber decided that the Republic of Chad also failed to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Al Bashir during his visit on 7 and 8 August 2011. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-140-tENG (13 December 2011). Similar decisions were taken by PreTrial Chamber ii with regard to Chad, again, on 26 March 2013, the drc, on 9 April 2014, and the Republic of the Sudan itself, on 9 March 2015 and 4 September 2015. See icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-151 (26 March 2013); icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of Congo Regarding Omar Al-Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-195 (9 April 2014); icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding on Non-Compliance Against the Republic of the Sudan, ICC-02/05-01/09-227 (9 March 2015); and icc, Prosecutor v Omar Hassan Ahmad Al Bashir Order requesting submissions from the Republic of South Africa for the purposes of proceedings under article 87(7) of the Rome Statute, ICC-02/05-01/09-247 (4 September 2015).

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referral to the asp, in the absence of a clear and explicit refusal or denial to cooperate expressed by the authorities (e.g. in the field of asset tracking). For the otp of course, cooperation is at the root of everything (and for the Court as a whole as well, when speaking of enforcement). However, except in the failed State scenario, for the otp to act on a State territory without State authorisation would be illegal and entail, on one hand, the practical impossibility for the otp to obtain or use meaningfully and legally the information it wishes to collect and, on the other hand, legal risks for its personnel on mission: investigative activities without formal authorisation would be illegal activities on a sovereign State’s territory and leave otp staff liable to arrest and prosecution.13 Despite these constraints and the otp’s reliance on icc State Parties to accomplish its mandate, the icc Statute therefore does not provide for many legal and operational ways to ‘oblige’ a State to cooperate against its will. Luckily, the otp actually receives significant cooperation from State Parties, with over 60% of its individual requests for assistance receiving a positive response.14 But this is somehow misleading in view of the levels of cooperation and support needed in general terms to enable the icc to maximise its impact, when looking at the impact of non-execution on some of its cases. In the Situation in Kenya, for instance, when looking at specific requests such as access to financial records, declarations of interest, tax returns, etc., all measures are made almost impossible without the genuine and diligent cooperation of the States concerned. This is also the case when looking at the enforcement rate of the decisions by the Court itself, such as the warrants issued for the arrest of suspects, without which a criminal court is not really in a position to accomplish its objectives of holding accountable the authors of the gravest crimes. 3

Types of Cooperation

At the otp, the types of cooperation required can be divided into the following categories, as outlined, for instance, in the otp Strategic Plan June 2012–2015.15 13

There are two (strict) exceptions to this, which are: (1) where the otp seeks to interview [private] persons on a voluntary basis, where we can proceed with only notifying (Art. 99(4) icc Statute) and (2) where the Pre-Trial Chamber can provide judicial authorisation for the Prosecutor to act without State consent (Art. 57(3)(d) icc Statute). This scenario relates only to the situations where the territorial State is clearly unable to execute the request (e.g. failed State scenario). 14 See asp, Report of the Court on cooperation, 22 September 2015, ICC-ASP/14/27 at para 38. 15 icc-otp, ‘Strategic Plan June 2012–2015’, icc, 11 October 2013, available at: www.legal -tools.org/doc/954beb/ (last accessed 19 October 2015).

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Cooperation is needed to ensure the general support and a consensus on the objectives of the otp that determine its capacity to operate generally; cooperation is the key to obtain the logistical support to allow the otp to operate around the world and to perform its investigative tasks; it determines the accessibility of the information and evidence needed; it impacts considerably on the ability of the otp to protect staff and persons at risk on account of their interaction with the Court; it determines the access to expertise which is not available directly within the otp; it allows the otp to identify, trace, locate, freeze or seize proceeds, properties and assets and it determines whether Court orders are implemented and arrests effected.16 In sum, it is a crucial factor in determining the pace and success of the otp’s core activities. Practical issues facing the otp in its access to crime base and linkage evidence involve, listing only a few: • Access to information on the crimes and on the networks and hierarchical structures on the ground, which is often physically and logistically difficult; • Complexity of the political and financial networks to reconstruct and track; • Multiplicity of actors potentially owning information, with multiple legal frameworks making it hard to get timely access to the relevant information; • Protection of witnesses and sources; often located in remote areas without pre-existing protection mechanisms in place, with no functioning and reliable judiciary and a dysfunctional local law enforcement structure; • Difficulties to identify, locate, contact and protect insiders; and • Need to obtain waiver of confidentiality undertakings (officials of a State, un personnel, military personnel, etc.) or to screen the material collected to preserve the confidentiality of the attorney-client relationship or of the medical files of the person, as appropriate. In order to perform its tasks and to address the practical challenges it is faced with, the otp seeks cooperation from a multiplicity of partners with their own expectations, legal and practical constraints and limits, all of which create different challenges for the otp in the performance of its duties. 4

Cooperation from State Parties

The first and most important partners of the icc are its State Parties, to which the legal obligation to cooperate stipulated in Art. 86 icc Statute applies. 16

See ibid at para 64.

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The otp routinely sends hundreds of requests for assistance every year to its State Parties, asking them to assist with the complete assortment of judicial cooperation measures listed in Art. 93(1) icc Statute in particular, while the Court itself, via the Registry, similarly sends out its own requests, including to follow up on icc arrest warrants, orders for identification of assets and other orders from the Court. While State Parties are obliged to execute otp requests and to take all the legal and procedural steps necessary to do this, as Arts. 86 and 88 icc Statute make clear, this does not give the icc unlimited access to those States’ territories or an unfettered right to impose upon them, conduct its judicial proceedings on its own motion and obtain automatic support for the full variety of judicial activities it may want them to perform. While the legal obligation enshrined in the icc Statute is unambiguous, Part ix icc Statute details the modalities and conditions to respect for a request to be validly considered and processed by a requested State, as per Arts. 96 and 99 icc Statute in particular. States can also seek consultations and/or modification to otp requests, as is foreseen in Arts. 93(3) to 93(6) icc Statute and in Art. 97 icc Statute. Importantly, the icc Statute says that States shall execute otp requests for assistance ‘in accordance with the relevant procedure under the law of the requested State, including following any procedure outlined therein’ (Art. 99(1) icc Statute). This has obviously proved particularly relevant for the otp, since the ability of the Prosecutor to control – to some extent at least – the manner in which evidence is gathered (to ensure chain of custody, to guarantee authentication of the material identified, to preserve the integrity of the material sought, etc.), or to play a part in the interviews it is requesting or in the measures it wants to see implemented, will often prove critical for the effectiveness of its investigation. States have their laws and pre-existing procedures in place and need to accommodate the needs of the otp and undertake their own responsibilities, in the context of their actual capacities and legal framework.17 They decide the channels to be used by the Court to request and obtain their cooperation, the processes to follow for them to grant such cooperation, and the scope of their cooperation, inasmuch as the icc Statute gives them some flexibility in the implementation of this obligation. Even more, in the specific case of proceedings triggered by the otp pursuant to Art. 70 icc Statute (Offences against the administration of justice), the cooperation regime attached to this procedure gives extra leeway to State Parties to decide on the way to assist the otp with 17

See Art. 88 icc Statute.

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such investigations and on the scope of their assistance. Indeed, Art. 70(2) icc Statute stipulates that ‘[t]he conditions for providing international cooperation to the Court with respect to its proceedings under this article shall be governed by the domestic laws of the requested State’. Some judicial measures that the otp would therefore need in the course of such investigations might actually not be legally available in the requested States for this category of crimes, which may, for example, be subject to a sentence of a maximum of five years of imprisonment ‘only’. The State requested might validly oppose certain requests and want to deny cooperation on the basis of a legal principle applicable in the country that would prevent it from cooperating as requested. In general, while some States have very strict procedures and will require a formal request for clearance and presence of law enforcement officials even for the screening of a witness, or request at least a notification and clearance to only have one investigator on their territory collecting a document from a third party, some will only require a notification of presence if the otp is not yet at the interview stage. This variety of practices is another challenge for the otp, which has to adapt and assess the best ways to obtain the information sought depending on the system in place. In addition, in some States, there are specific sensitivities and legislation, or there is no tradition/experience of cooperating with international justice mechanisms or even in the framework of intergovernmental judicial cooperation. International judicial cooperation practices are traditionally cumbersome and often demanding, with a large variety of national authorities involved, at the diplomatic, judicial and law enforcement authorities levels, all of them being responsible for parts of the process. Although the icc Statute foresees, and is based on the premise, that cooperation between a State Party and the Court should be made simpler and more direct than State-to-State practices, in light of the gravity of the crimes under the jurisdiction of the Court and pursuant to the binding force of the icc Statute, cooperation relations can remain complicated between the Court and the 124 State Parties, all of which have different legal and procedural environments, standards and expectations and, sometimes, diverging interests. States indeed all have different requirements, both legal (according to the relevant national legislation and, more broadly, to the legal system in place, whether common or civil law, for instance) and political, which impact on the modalities and levels of cooperation granted. Most of the time, States that are not genuinely willing to cooperate will not seek consultations or explicitly deny cooperation on statutory grounds (e.g. on the basis of their national security concerns, as per Art. 93(4) icc Statute), but they will just not act or act with delays. Often, States will not refuse to cooperate,

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but they may not exercise all possible diligence, or they may limit the scope of their cooperation, or only partially cooperate, or deliberately send answers outside the scope of the request. Given the types of crimes under icc jurisdiction and the roles and functions of those who might be held responsible for them, States’ goodwill often depends on internal, regional or international agendas and on their evaluation of the cost-benefits of cooperating quickly and proactively with the otp or, alternatively, to be negligent, late or partial in their implementation of otp requests. The safeguards in place in the icc Statute to guarantee that judicial cooperation requests are dealt with diligently and comprehensively by requested States, outside of any political interference, are clearly not enough to prevent disingenuous behaviour. States’ levels of cooperation will also vary depending on technical factors such as the existence (or lack thereof) of national legislation implementing the icc Statute18 or a specific judicial cooperation agreement. It can also depend on whether they have ratified the Agreement on Privileges and Immunities of the Court, whether the channels and language of cooperation are identified as well as the number of administrative steps required to execute requests. Finally, the competent national authorities will often have to decide between conflicting priorities and competing requests.19 Implementing the Court’s requests and orders will require human and financial resources that the State may have dedicated to other tasks at a given moment. They may have to be spent on other national cases or judicial priorities in parallel. The experts potentially needed to implement the request may be busy with other activities. The specialised teams (as exist now in national War Crimes Units)20 may be subject to conflicting priorities between their national investigations on the most serious crimes and internal judicial deadlines, and the investigative measures requested by the Court. Whereas the icc’s own judicial deadlines and the international public scrutiny imposed on otp investigations constrain its timelines, sometimes its judicial deadlines may not be realistic for national counterparts who may also be dealing with mass crimes and complex investigations requiring them to divert their – at times limited – resources elsewhere at the moment of an icc request. 18

19 20

As of 22 September 2015, less than 53 State Parties have adopted national implementing legislation on Part ix icc Statute. See asp, Report of the Court on cooperation (2015) supra n 14 at para 40. Not in the meaning of Art. 93(9) icc Statute, i.e. requests that would relate to the same measures exactly or to the same evidence or information being sought. On the role of such units in practice, see Chapter 10, in which the Belgian national system is explored by Dive and de Hults.

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Recent Cooperation Challenges and Jurisprudence

In the cases of Prosecutor v William Samoei Ruto and Joshua Arap Sang and Prosecutor v Uhuru Muigai Kenyatta in particular, the interpretation of the provisions of Part ix icc Statute became the subject of intense litigation. The situation of otp witnesses being tampered with and of the otp difficulties to access the evidence was brought before the Court, which issued a number of important decisions on cooperation. In several recent decisions, including in particular a decision of 29 July 2014 by Trial Chamber v(B) in the Kenyatta case,21 the Court built on its previous jurisprudence and clarified aspects of cooperation and the criteria applicable to consider whether a request from the otp respects the formal requirements to be executed by a State and should be considered valid and acted upon diligently. The Trial Chamber reiterated the three conditions enshrined in Art. 96(2) icc Statute for requests for assistance from the otp (or other organs) to be considered as meeting the requirements of Part ix icc Statute and warranting an answer, namely: specificity; relevance; and necessity, and analysed the concrete issues at stake in this case in light of these criteria. It further reiterated or clarified principles such as the existence of ‘substantial unexplained delays’22 from a State, which are tantamount to a breach of their cooperation obligation, the fact that administrative or practical difficulties cannot justify not executing requests,23 and the fact that there were ‘appropriate means of seeking to obtain such information’24 that should have been used to answer the request. Thanks to the development of a clear jurisprudence, the options of those governments refusing to cooperate and their possibility to oppose implementing a request for assistance on futile grounds have been restricted, as long as the otp – or any other organ – respects the format, content and conditions necessary. In the 29 July 2014 decision, the Trial Chamber actually confirmed that the otp requests respected the format and conditions imposed by the icc Statute and that the evidence requested was proper. In addition, it confirmed that the Kenyan Government was indeed under an obligation to take all the necessary measures to get the information requested to the otp.25 21 See icc, Prosecutor v Uhuru Muigai Kenyatta Decision on the Prosecution’s revised cooperation request, Trial Chamber v(b), ICC-01/09-02/11-937 (29 July 2014). 22 Ibid at para 33. 23 Ibid at para 34. 24 Ibid at para 40. 25 See in particular icc, Prosecutor v Germain Katanga Décision relative à la seconde requête de la défense de G. Katanga visant à obtenir la coopération de la rdc, ICC-01/04-01/07-Red

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Experience demonstrates that genuine cooperation from States is often impacted by their short- or medium-term political agendas, by competing requests and the burden the icc puts on their resources. State cooperation is also affected by the public perception of the relevance or opportunity of prosecution strategies and of icc cases and situations. Finally, cooperation is influenced by the lack of incentives for States to actually cooperate with the Court, combined with the potentially numerous incentives not to cooperate (financial, psychological, security-related, etc.) and the lack of a clear enforcement power on the part of the Court and asp. In order to counter these limitations, to foster stability, foreseeability and transparency in the cooperation process, and to overcome the potential lack of proper cooperation mechanisms in some States, the otp, and sometimes the Court as a whole, has entered into ad hoc cooperation agreements and arrangements with some of its State Parties, mostly where it is investigating (the ‘situation countries’). In the course of the last ten years, several bilateral agreements, including on sharing of information, judicial assistance and witness protection, have been signed with a number of situation countries where cooperation is expected on a continuous and sustained basis. This has been the case in Uganda (agreement of 20 August 2004), the drc (6 October 2004), the car (18 December 2007), Côte d’Ivoire (15 February 2012, a Court-wide agreement), and Mali (13 February 2013). These agreements, by simplifying the channels of communication, allowing pre-notes verbales checks, identifying focal points for cooperation and opening (6 December 2010); icc, Prosecutor v Blé Goudé Decision on the defence request for state party cooperation, ICC-02/11-02/11-63 (17 April 2014); icc, Prosecutor v Abdullah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus Public Redacted Version of the Decision on the third defence application pursuant to Articles 57(3)(b) and 64(6)(a) of the Statute, ICC-02/05-03/09-504-Red (12 September 2013) at para 4; icc, Prosecutor v Abdullah Banda Abakaer Nourain and Saleh Mohammed  Jerbo Jamus Decision on “Defence Application pursuant to Articles 57(3)(b) & 64(6)(a) of the Statute for an order for the preparation and transmission of a cooperation request to the African Union”, ICC02/05-03/09-170 (1 July 2011) at paras 13–16; icc, Prosecutor v Abdullah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus Public Redacted Decision on the second defence’s application pursuant to Articles 57(3)(b) and 64(6)(a) of the Statute, ICC-02/0503/09-268-Red (12 December 2011) at para 13; icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date, ICC-01/09-02/11-908 (31 March 2014) at footnote 216; icc, Prosecutor v Uhuru Muigai Kenyatta Decision on the Prosecution’s revised cooperation request, ICC-01/09-02/11-937 (29 July 2014).

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short tracks and one-desk-entry cooperation practices, consistency and experience-building, have proved over time extremely valuable to otp investigations. 6

Cooperation from Non-State Parties

In addition to the natural partners of the Court, its State Parties, the otp seeks cooperation from a multiplicity of other partners, who have initially no obligation to cooperate but can be invited to do so as per Arts. 87(5) and 87(6) icc Statute. Non-State Parties to the icc Statute can indeed be required to provide assistance under Art. 87(5) icc Statute ‘on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis’. If they enter into such arrangement or agreement, then an obligation to cooperate is triggered and the same process of transmission of information to the asp or to the unsc applies if they fail to cooperate. Intergovernmental organisations may also be asked to provide information or documents by the Court, or ‘other forms of cooperation and assistance […] which are in accordance with its competence or mandate’ under Art. 87(6) icc Statute. First among them, the un, its agencies, offices and funds, and its field missions are requested to assist on a regular basis. In light of their unique deployment of personnel in countries of potential interest to the Court, un peacekeeping missions are a partner of first importance in the work of the otp. Following the entry into force of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations (un-icc Agreement) on 4 October 2004,26 the icc signed specific agreements with several un peacekeeping missions deployed in situation countries, such as with the un Organization Mission in the drc (monuc), on 8 November 2005,27 the un Operation in Côte d’Ivoire (onuci), on 20 January 2012, and with the un Multidimensional Integrated Stabilization Mission in Mali (minusma), on 20 August 2014. Although the un has no obligation to cooperate with the Court under the icc Statute, they undertook to do so as per the un-icc Agreement. The subsequent agreements signed with peacekeeping missions put this umbrella agreement in 26 27

icc, Negotiated Relationship Agreement between the International Criminal Court and the United Nations, 22 July 2004, ICC-ASP/3/Res.1. The agreement is applicable mutatis mutandis to the successor un peacekeeping operation to monuc, the un Organization Stabilization Mission in the drc (monusco), which replaced monuc on 1 July 2010.

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motion and defined the parameters of such cooperation. As a first responder on the ground, un missions are, of course, a highly valuable potential source of information. In the course of its work, the otp has developed cooperation practices with several other regional and international organisations. Cooperation agreements or arrangements have been signed with organisations such as the eu,28 Eurojust, Interpol, the un Office of the High Commissioner for Human Rights, the International Development Law Organization (idlo), the Organisation Internationale de la Francophonie (oif),29 the World Bank, etc. Finally, the otp will, on a regular basis, seek cooperation from private actors such as ngos, journalists, private companies, etc. This cooperation aims mostly at obtaining information from entities often acting as first responders in situations of interest to the Court. Adequate modalities of cooperation will be agreed upon with them, to take into account the specific risks associated with their work and mandate and their legitimate expectations to not increase risk to their personnel and to continue being able to fulfil their own mandates. The un and ngos have additional concerns, which relate to the exercise and the perception of their independence, impartiality and neutrality. They have constraints relating to their security and their capacity to perform their own duties, and although they are often, at first glance, very willing to cooperate, specific measures need to be put into place to ensure that this information can be given in acceptable conditions while ensuring that it will be disclosable in Court. To address these concerns, standard operating procedures have been progressively put in place, which include undertakings to avoid or limit direct contacts field-to-field and to always formulate requests through the relevant organisations’ headquarters and the possibility to request for protective measures such as Art. 54(3)(f) icc Statute restrictions, in exceptional cases, Art. 54(3)(e) icc Statute guarantees, and general or in-Court protective measures. Following up on the decisions issued in the first case before the Court, the case of Prosecutor v Thomas Lubanga Dyilo, in particular the 21 October 2008 Appeals Chamber Judgment,30 which resolved the initial tension between Art. 28 29 30

icc, Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, 10 April 2006, ICC-PRES/01-01-06. icc, Accord de Coopération entre la Cour Pénale Internationale et l’Organisation Internationale de la Francophonie, 28 September 2012, ICC-PRES/13-03-12. icc, Prosecutor v Thomas Lubanga Dyilo Judgment on the appeal of the Prosecutor against the decision of Trial Chamber i entitled “Decision on the release of Thomas Lubanga Dyilo”, ICC-01/04-01/06-1487 (21 October 2008).

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54(3) and Art. 67(2) icc Statute, the otp is also able to provide legal clarity on the disclosure process and conditions, and it has a set of tools available to address possible issues of confidentiality. In accordance with this judgment, Trial Chambers as well as any other Chambers of the Court are indeed requested to respect the confidentiality agreements concluded by the Prosecutor under Art. 54(3)(e) icc Statute and no Chamber of the Court can order the disclosure of Art. 54(3)(e) icc Statute materials to the defence without prior consent of the information provider. This is a guarantee for those who cooperate with the Court. Securing cooperation requires a permanent balancing exercise and the implementation of consistent and efficient relations for the long-term, based on trust, transparency and clarity on the respective mandates and obligations and on otp procedures. In general, cooperation is forthcoming, with more than 60% of otp requests for cooperation to State Parties and non-State Parties receiving positive answers. However, the otp encounters serious difficulties when it comes to arresting individuals when they are protected by active militias (e.g. Sylvestre Mudacumura) or when they use the State apparatus to commit massive crimes and shield themselves from justice (President Al Bashir). Together with tracking of assets, arrests remain the biggest test for States. It requires collaborative efforts and a consistent approach. To address the challenge, the Court has issued relevant guidelines for the consideration of States.31 The otp follows up on these guidelines and increases its dialogue with peace mediators, as was done in Kenya, the car, Sudan and the drc, to ensure that the icc’s independent mandate is factored into their work and that peace and political agreements exclude amnesties for icc Statute crimes. On arrest and surrender, consistent, genuine and pro-active political support is absolutely central to enforcing the warrants. Unfortunately, this is what is often missing. 31

These include: to eliminate non-essential contacts with individuals subject to an arrest warrant issued by the Court; when contacts are necessary, attempt first to interact with individuals not subject to an arrest warrant; in bilateral and multilateral meetings, proactively express support for the enforcement of the Court’s decisions, request cooperation with the Court, and demand that crimes, if on-going, cease immediately; contribute to the marginalisation of fugitives and take steps to prevent that aid and funds meant for humanitarian purposes or peace talks are diverted for the benefit of persons subject to an arrest warrant; and make collaborative efforts to plan and execute arrests of individuals subject to an arrest warrant issued by the Court, including by providing operational or financial support to countries willing to conduct such operations but lacking the capacity to do so.

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In order to facilitate arrest and tracking of suspects, the otp expects its partners to assist by: • • • •

supporting those States on whose territory suspects are located; sharing information on suspect tracking; providing logistical support as required; investigating issues of supply and support and tackle these networks through domestic or international action, for example unsc sanctions and freezing assets; • where feasible, including provisions enabling cooperation with efforts to bring to justice individuals responsible for crimes under the jurisdiction of the Court within the mandate of relevant peacekeeping missions (and ensuring that the necessary resources are provided); and • creating operational groups comprised of relevant States and organisations to exchange information and coordination on military and diplomatic efforts to secure arrests. 7

An Organisation Tailored to Deal with these Challenges

In order to foster and maintain support for otp activities, the development of trust, standardised relationships and operational contacts is a key to obtaining cooperation. In light of the particular challenge posed by cooperation in the system of the icc Statute, from the outset, a division was created within the otp dedicated to the issue of cooperation, working in close cooperation with the other divisions and with the integrated teams, to open the doors and clear the way for the investigations to take place and the information to come in. The Jurisdiction, Complementarity and Cooperation Division is a unique feature of the otp.32 Over time it has evolved and in the most recent strategic document the otp explains the evolutions brought to this system, with a higher involvement of otp investigators in the operational level contacts, in coordination with the advisers working in securing judicial and operational cooperation in each situation.

32

On the otp divisions, see icc, ‘How is the Office of the Prosecutor organized?’, icc, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the% 20prosecutor/faq/Pages/how%20is%20the%20office%20of%20the%20prosecutor%20 organized_.aspx (last accessed 19 October 2015).

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The otp has worked out a reengineering of its cooperation model and working practices over time but the main features remain, with dedicated advisers in charge of overviewing cooperation and channelling requests, streamlining interactions, offering standardisation, reliability and foreseeability of otp activities in this field. Cooperation requires trust and respect between the partners, alignment of interests and an established network of contacts. The otp will continue to play its part, striving to increase trust and respect by ensuring transparency and predictability through the publication of its policies, more transparency on its activities (e.g. the publication of the policies and reports on situations under preliminary examination) and through further development of proper accountability mechanisms as envisaged within the framework of the icc Statute. 8

Recent Developments and Responses to the Challenge of Cooperation

With the experience gained and lessons learnt, the otp has progressively developed and adapted its tools to promote and maintain cooperation from its historical partners and to foster support from new partners. In order to ensure that cooperation will be forthcoming, predictable and diligent, the otp is striving to negotiate, secure and adopt bilateral agreements with its situation States as well as with certain high frequency States, with which it has cooperation interactions on a very regular basis. Such bilateral agreements are key to facilitate mutual understanding, build long-term relations of trust and secure fast channels of communication. In addition, the otp is taking initiatives to develop operational relations with the relevant partners. A Development of Law Enforcement and Cooperation Networks After meetings to exchange experience with War Crimes Units and chiefs of police from around the world, the Office has started a project with interested national law enforcement officials – including from situation countries – involving Interpol, Europol, Eurojust and similar networks, to define concrete investigations and projects that could be undertaken to mutually support its efforts. This network will allow the Office to connect with different partners and, at the same time, for these partners to connect together and to enhance their collaboration. B Development of Standardisation Processes and ‘Fast Tracks’ The otp has set up a database to follow up on its requests for assistance, also listing State requirements and procedures to be followed for each country and

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keeping track of the cooperation patterns, challenges and results to inform its strategies and processes and to report to the asp on the reality of the judicial cooperation granted to it. The otp strongly encourages national authorities to create and support central units with the required expertise to work in complementarity with it on the gravest crimes of concern to the international community (so-called War Crimes Units) and to identify operational focal points to channel requests from the otp, contacts with the competent national authorities and replies sent to the Court. Further, the otp is striving to develop the acceptance of dematerialised requests sent in electronic form, to speed up the processes. The otp tries to build relationships with key States and officials as the best basis for cooperation and, where this is possible, to establish operational level communication and informal pre-request consultation as far as possible. Through its positive approach to complementarity, the otp also promotes the use of Art. 93(10) icc Statute33 and Rule 194 icc rpe (cooperation requested from the Court), to encourage its State Parties to request cooperation and to seek information from it, to develop their own cases and prosecute those not prosecuted before the icc, thus contributing further to closing the impunity gap. Research of New Legal Avenues to Get Information or Overcome Blockages To answer the challenge of witness protection and its dark face, witness intimidation and interference, which are serious offences undermining the Court’s proceedings and credibility, the otp has opened cases for offences against the administration of justice, including witness interference, in both the car and Kenya Situations. Increasingly, pursuant to Art. 70 icc Statute, the otp is resorting to investigating these offences against the administration of justice, which threaten the very basis of its work and destabilise the judicial process and the trust in the institution as a whole. In the alternative, the otp may request its State Parties to investigate such crimes, to counter attempts at blocking its work and cooperation through threats against witnesses, tampering with witnesses, suborning witnesses and in general being responsible for contempt of court.

C

33

Art. 93(10)(a) icc Statute (‘The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State’).

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The otp continues to investigate these cases consistently and systematically or refer them to the competent national jurisdictions. It must be pointed out, however, that this is not the Office’s core business and investigating and trying these ancillary cases are an added strain on the otp’s already limited resources. In an effort to respond to the challenge of witnesses interfered with and deciding to no longer testify in Court due to potential pressure and threats at the national level, the otp has also requested that the Court issue subpoenas for witnesses and has started resorting to this possibility in Prosecutor v William Samoei Ruto and Joshua Arap Sang, for instance.34 In this case, the otp had requested that the Trial Chamber require witnesses to attend Court hearings, via a request sent to the national authorities to serve summons to appear to witnesses in accordance with their national laws, and to ensure that these are executed, with their testimonies being received via videolink or with the Court sitting in the relevant country to hear the person summoned to appear. Similarly, the asp adopted Resolution ICC-ASP/12/Res.7 on 27 November 2013,35 pursuant to an amendment to the icc rpe, which introduced a new Rule 68 icc rpe, providing for the possibility to introduce as evidence previously recorded testimony, when a witness has become unavailable to testify, because he or she has been interfered with, has died in the meantime or for other reason preventing him or her from appearing. 9

Pledge for Support

The icc was built to offer a solution to those situations of crimes of concern to the international community as a whole that were not being investigated or prosecuted by those with the primary responsibility to do it: the States. It is these same States, together, at the 1998 Rome Conference, who decided to give themselves, and their populations, a new instrument of justice to fight impunity, promote accountability for the gravest crimes and bring lasting peace to those affected by endless cycles of violence and crimes. The State Parties to the icc Statute, who have accepted its complementary jurisdiction, have given it 34

35

icc, Prosecutor v William Samoei Ruto and Joshua Arap Sang Decision on Prosecutor’s Application for Witness Summonses and resulting Request for State Party Cooperation, ICC-01/09-01/11-1274-Corr2 (17 April 2014). asp, Amendments to the Rules of Procedure and Evidence, 27 November 2013, ICC-ASP/12/Res.7.

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some tools to perform its mandate. Among these tools, they have put their judicial law enforcement capacity at its disposal. They have committed to support and assist it and detailed this commitment in Part ix icc Statute. Without this support and assistance, the Court simply cannot deliver the results it has been created to achieve. The lack of full and timely cooperation from State Parties impedes the Court’s capacity to perform its duties. By decision of the States, the icc does not have a police force or enforcement body of its own and relies on State Parties, and other actors, such as international and regional organisations, to implement its decisions and to support its work. This support is particularly vital in the crucial areas of witness protection, tracking and seizing of financial assets belonging to perpetrators, and – notably – the arrest and surrender of individuals against whom the Court has issued warrants. More than ten years after the entry into force of the icc Statute, a lot has been achieved but much remains to be done. The Court is an independent and impartial judicial institution. It needs its State Parties, and beyond, to facilitate the execution of this independent mandate and to give it the means to achieve its goals. States should not leave the Court isolated. States should continue to live up to their commitment and to their responsibility. Only then will there be fair and independent justice for all those who deserve it and for whom this Court was established. List of References Legal Cases and United Nations Documents

ICC, Prosecutor v Thomas Lubanga Dyilo Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the release of Thomas Lubanga Dyilo”, ICC-01/04-01/06-1487 (21 October 2008). ICC, Prosecutor v Germain Katanga Décision relative à la seconde requête de la défense de G. Katanga visant à obtenir la coopération de la RDC, ICC-01/04-01/07-Red (6 December 2010). ICC, Prosecutor v Abdullah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus Decision on “Defence Application pursuant to Articles 57(3)(b) & 64(6)(a) of the Statute for an order for the preparation and transmission of a cooperation request to the African Union”, ICC-02/05-03/09-170 (1 July 2011). ICC, Prosecutor v Abdullah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus Public Redacted Decision on the second defence’s application pursuant to Articles 57(3)(b) and 64(6)(a) of the Statute, ICC-02/05-03/09-268-Red (12 December 2011).

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ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-139-Corr (13 December 2011). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-140-tENG (13 December 2011). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-151 (26 March 2013). ICC, Prosecutor v Abdullah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus Public Redacted Version of the Decision on the third defence application pursuant to Articles 57(3)(b) and 64(6)(a) of the Statute, ICC-02/05-03/09-504-Red (12 September 2013). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date, ICC-01/09-02/11-908 (31 March 2014). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of Congo Regarding Omar Al-Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-195 (9 April 2014). ICC, Prosecutor v Blé Goudé Decision on the defence request for state party cooperation, ICC-02/11-02/11-63 (17 April 2014). ICC, Prosecutor v William Samoei Ruto and Joshua Arap Sang Decision on Prosecutor’s Application for Witness Summonses and resulting Request for State Party Cooperation, ICC-01/09-01/11-1274-Corr2 (17 April 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on the Prosecution’s revised cooperation request, ICC-01/09-02/11-937 (29 July 2014). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding on Non-Compliance Against the Republic of the Sudan, ICC-02/0501/09-227 (9 March 2015). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Order requesting submissions from the Republic of South Africa for the purposes of proceedings under article 87(7) of the Rome Statute, ICC-02/05-01/09-247 (4 September 2015). UNSC Res 827, 25 May 1993, S/RES/827 (1993). UNSC Res 955, 8 November 1994, S/RES/955 (1994).

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Other Documents



Online Materials

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ASP, Amendments to the Rules of Procedure and Evidence, 27 November 2013, ICCASP/12/Res.7. ASP, Report of the Court on cooperation, 22 September 2015, ICC-ASP/14/27. ICC, Negotiated Relationship Agreement between the International Criminal Court and the United Nations, 22 July 2004, ICC-ASP/3/Res.1. ICC, Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, 10 April 2006, ICC-PRES/01-01-06. ICC, Accord de Coopération entre la Cour Pénale Internationale et l’Organisation Internationale de la Francophonie, 28 September 2012, ICC-PRES/13-03-12.

ICC, ‘How is the Office of the Prosecutor organized?’, ICC, available at: www.icc-cpi.int/ en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/ faq/Pages/how%20is%20the%20office%20of%20the%20prosecutor%20organized_ .aspx (last accessed 19 October 2015). ICC, ‘Office of the Prosecutor’, ICC, available at: www.icc-cpi.int/en_menus/icc/structure% 20of%20the%20court/office%20of%20the%20prosecutor (last accessed 19 October 2015). ICC-OTP, ‘Strategic Plan June 2012–2015’, ICC, 11 2013, available at: www.legal-tools.org/ doc/954beb/ (last accessed 19 October 2015).

Credible and Authoritative Enforcement of State Cooperation with the International Criminal Court Göran Sluiter and Stanislas Talontsi 1 Introduction One of the greatest threats to the effective functioning of the icc is the lack of adequate cooperation by States. The attention gradually shifts from determining the scope of legal obligations under the icc Statute and applicable unsc resolutions to proving a proper response to States which have violated their cooperation obligations. One is in this respect compelled – in the interests of an effective icc – to critically asses the law and practice of the Court in the area of enforcement of cooperation. Aware that enforcement of the international obligation to cooperate with the Court is only a legal matter, one should indeed not underestimate the potential that political and financial pressure may have on the enforcement of non-cooperation based on the lessons learned from the practice of the icty.1 While the political context and considerations may be decisive in the provision of assistance to the Court, the starting point should, in our opinion, be the availability and quality of legal mechanisms in securing cooperation. In this chapter, the present authors adopt as a working hypothesis that effectively enforcing States’ cooperation obligations with the icc is ultimately dependent upon the availability and logical use of three consecutive steps. The first is the availability and consistent initiation of the procedure leading to a judicial finding of non-compliance (‘non-cooperation’). The second concerns the quality of the ‘non-compliance’ procedure, including the respect of due process elements by the Court vis-à-vis the requested State. The third is the availability and consistent use of credible enforcement mechanisms by the asp, the unsc, and/or individual States. It will be examined whether each of these steps is available and properly used in the law and practice of the icc. At the end, the conclusion sets out some tentative recommendations. 1

1 See icty Prosecutor Brammertz, ‘a sp 11 Keynote Speech: Arresting Fugitives from International Justice and Other Aspects of State Cooperation: Insights from icty Experience’, icc, 16 November 2012, available at: www.icc-cpi.int/en_menus/asp/sessions/documentation/11th%20 session/Pages/ASP11-Supporting-documents.aspx (last accessed on 24 February 2015) at 22.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_005

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Availability and Consistent Use of the Procedure Leading to a Judicial Finding of Non-Compliance

Art. 87(7) icc Statute mentions the finding of non-cooperation that the Chamber may make without further elaboration. Regulation 109 RoC then provides further rules regarding the applicable procedure for such a finding and its referral to the relevant political bodies.2 It is noteworthy that the icc rpe3 and even the Court’s jurisprudence have not elaborated on the nature of such an important mechanism.4 The reality is that this finding is not a regular decision of the Court, as the main jurisdiction of the icc is to decide on the criminal responsibility of individuals. When the icc Chamber decides on the matter of non-cooperation by a State, it assumes a position akin to an administrative Judge, as opposed to its normal duties of determining individual criminal responsibility. In this sense, the judicial finding on States’ cooperation is a form of dispute settlement that does not fit into the realm of criminal procedure, and, as a result, should be governed by different principles. For a comprehensive analysis, this first of the abovementioned three consecutive steps (i) revisits the existing findings of non-compliance by the Chambers and (ii) questions the late involvement of the Court in the use of the procedure under Art. 87(5) and (7) icc Statute. It is remarkable that there are certain differences between available decisions, including similar cases dealing with non-cooperation by two or more States, but which result in a judicial finding against one and not the other(s).5 This raises, amongst other things, the question whether the impact of non-cooperation for the functioning of the Court is a relevant factor for a judicial finding of non-compliance. A Judicial Findings of Non-Cooperation of the Court to Date The following Table  3.1 details existing instances where the Court made a judicial finding of non-cooperation and referred the decision to the unsc and/or the asp. The Table 3.1 is completed by two other decisions including 2 3 4 5

2 See icc, Regulations of the Court: adopted by the Judges of the Court on 26 May 2004: Fifth Plenary Session, May 2004, ICC-BD/01-01-04. 3 See icc, Rules of Procedure and Evidence of the International Criminal Court, 3–10 September 2002, ICC-ASP/1/3 at 10 and Corr. 1, u.n. Doc. PCNICC/2000/1/Add.1 (2000). 4 See in contrast, the icty suggested definition of the judicial finding of non-compliance in icty, Prosecutor v Tihomir Blaškić, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber ii of 18 July 1997, IT-95-14 (29 October 1997) at para 35. 5 This includes instances of non-compliance in arrest of Al Bashir by Nigeria and the drc that will be analysed in detail in subsequent sections of this chapter.

ICC-02/05-01/09-227,8 date: 9 March 2015

Arrest and surrender of The Prosecutor, date: 19 December Omar Al Bashir. 2014

Chad

ICC-02/05-01/09-140-t ENG,11 date: 13 December 2011

ICC-02/05-01/09-151,12 – Failure to arrest and surrender. date: 27 March 2013 –D  elay in Chad reply amounts to waiving State’s right to be heard of Regulation 109 RoC.13

Omar Al Bashir visit of 7–8 August 2011.

Omar Al Bashir visit of 15 and 16 February 2013, as well as on 11 May 2013.

Pre-Trial Chamber i, date: 11 August 2011

Pre-Trial Chamber ii, date: 22 February 2013

– Failure to consult the Court regarding Art. 98 icc Statute issue. – Failure to arrest and surrender.

ICC-02/05-01/09-109,10 Non-compliance with cooperation date: 27 August 2010 obligation stemming both from unsc Resolution 1593 (2005) and Art. 87 icc Statute.

Omar Al Bashir visit of 21–23 July 2010.

Pre-Trial Chamber i, date: 27 August 2010

– Failure to consult the Court implies waiver of the right of the State to be heard.9 – Failure to arrest Omar Al Bashir.

Failure to comply with cooperation obligations stemming from unsc Resolution 1593 (2005).7

ICC-02/05-01/07-57,6 date: 26 May 2010

Failure to enforce arrest warrant against Ahmad Harun and Ali Kushayb.

The Prosecutor, date: 19 April 2010

Sudan

Darfur, Sudan

Essential grounds underlying Decision

Decision under Art. 87(7) icc Statute

Party requesting cooperation and date

Issue(s)

Judicial Findings of Non-cooperation

Situations Requested State

Table 3.1

82 Sluiter AND Talontsi

15

13 14

12

11

9 10

7 8

6

6 7 8 9 10 11 12 13 14 15

icc, Prosecutor v Ahmad Muhammad Harun And Ali Muhammad Ali Abd-Al-Rahman Decision informing the United Nations Security Council about the lack of cooperation by the Republic of the Sudan, ICC-02/05-01/07-57 (25 May 2010). unsc Res 1593, 31 March 2005, S/RES/1593 (2005). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding of Non-Compliance Against the Republic of the Sudan, ICC-02/05-01/09-227 (9 March 2015). Ibid at para 19. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad, ICC-02/05-01/09-109 (27 August 2010). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-140-tENG (13 December 2011). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-151 (26 March 2013). Ibid at para 19. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya, ICC-02/05-01/09-107 (27 August 2010). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti, ICC-02/05-01/09-129 (12 May 2011).

Pre-Trial Chamber i, Omar Al Bashir visit of 8 ICC-02/05-01/09-129,15 Non-compliance with obligation stemming from both unsc Resolution date: 12 May 2011 May 2011. date: 12 May 2011 1593 (2005) and Art. 87 icc Statute. (inform)

Djibouti

ICC-02/05-01/09-107,14 Non-compliance with obligation stemming from both unsc Resolution date: 27 August 2010 1593 (2005) and Art. 87 icc Statute. (inform)

Omar Al Bashir visit Pre-Trial Chamber i, date: 27 of 27 August 2010. August 2010

Kenya

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(cont.)

Libya

Pre-Trial Chamber ii, date: 15 July 2013

Nigeria

The defence via Pre-Trial Chamber i, date: 15 May 2014

Pre-Trial Chamber ii, date: 26 February 2014

drc

Libya

Pre-Trial Chamber i, date: 19 October 2011

Party requesting cooperation and date

Malawi

Situations Requested State

Table 3.1

Decision under Art. 87(7) icc Statute

ICC-02/05-01/09-15918 (no referral)

Omar Al Bashir visit of 12–6 July 2013.

ICC-01/11-01/11-57721, – Non surrender of the accused. – Surrender of Saif date: 10 December 2014 – Non-return of documents. Al-Islam Gaddafi. – Documents seized from the defence.

– The suspect was not invited by Nigeria.19 – Sudden departure of the suspect prevented arrest.20

ICC-02/05-01/09-195,17 – Failure to consult the Court regarding date: 9 April 2014 Art. 98 icc Statute issue. – Failure to arrest and surrender.

– Failure to consult the Court regarding Art. 98 icc Statute issue. – Failure to arrest and surrender.

Essential grounds underlying Decision

Omar Al Bashir visit of 26–27 February 2014.

Omar Al Bashir visit of 14 ICC-02/05-01/09-139October 2011. Corr,16 date: 13 December 2011

Issue(s)

84 Sluiter AND Talontsi

22

19 20 21

18

17

16

16 17 18 19 20 21 22

Kenya

The Prosecutor, date: 29 November 2013

Failure to comply with Art. 93 icc Statute request.

ICC-01/09-02/11-98222, – No finding although establishment of date: 3 December 2014 a breach of the cooperation obligation.

icc, Prosecutor v Omar Hassan Ahmad Al Bashir Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-139-Corr (13 December 2011) at para 7. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-195 (9 April 2014) at para 33. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Federal Republic of Nigeria Regarding Omar Al-Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-159 (5 September 2013). Ibid at para 11. Ibid at para 13. icc, Prosecutor v Saif Al-Islam Gaddafi Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council, ICC-01/11-01/11-577 (10 December 2014) at paras 31 and 33. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, ICC01/09-02/11-982 (3 December 2014).

Kenya

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non-cooperation by Kenya and Nigeria in which, although the Court notes non-compliance by the two States, decided not to make a judicial finding and/ or decided not to refer its decision to the political bodies for enforcement purposes. B Timing of Applications for a Judicial Finding It is the position of the present authors that, for the credibility and authority of the icc’s enforcement mechanisms, a procedure leading up to a judicial finding of non-compliance ought to be initiated without delay and directly in each instance where a State has violated its obligation to cooperate with the Court. Yet, the practice of the Court shows a number of instances in which State and non-State Parties have violated their obligations to cooperate with the Court and this violation has not been addressed – or has only been addressed a significant time after the violation. It is submitted that the credibility and authority of the cooperation obligations require an instant reaction to all violations of the duty to cooperate. If not, States that are confronted with the late use of procedures under Art. 87(5) and (7) icc Statute may, with reason, challenge that there is no equality before the law. Moreover, there is also the risk that a practice of non-cooperation – followed by a practice of non-enforcement – may be used as argument to modify the scope of cooperation obligations.23 In this respect, the absence of further enforcement measures can be used as an unwelcome argument that the scope of the obligation may have changed, or that the violation is apparently not serious enough to justify further action. As such, the delayed involvement of the Court in the use of its Art. 87(5) and (7) icc Statute procedure and the Prosecutor’s relatively late application for a non-cooperation finding against Sudan in the Al Bashir case – in December 23

23

For instance, with at least three non-cooperation decisions against Chad, (including: icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad (2010) supra n 10; icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir (2011) supra n 11; icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Noncompliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir (2013) supra n 12) followed by non-enforcement, one may doubt whether Chad perceives itself as obligated to cooperate with the Court.

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2014 – may help to illustrate this point.24 It is also questionable that the Court omitted to make findings of non-compliance following certain visits of the accused, including Al Bashir’s trip to Chad on 25–29 March 2014.25 Other interesting issues include those events where the Court’s requests for observations to the concerned States were made a few months after an accused person visited the country, as was the case with Chad and the car following their failure to arrest Abdel Raheem Muhammad Hussein in 2013.26 Although, it is clear that a timely Court request for observations to a State Party may at least trigger national proceedings against the government regarding its implementation of obligations assumed towards the Court or, at most, emphasise the outstanding State obligation to cooperate. This has been the case with South Africa, following recent trip by Al Bashir on 13 June 2015.27 As regards the Situation in Darfur, Sudan, which has arguably produced the most important and persistent instances of non-cooperation, the issue of State cooperation has always represented an important aspect of the Prosecutor’s Reports to the unsc. These Reports changed in tone and evaluation of the cooperation situation over time: Sudan’s cooperation was ‘forthcoming’28 in the early stages, but quickly decreased and even became non-existent in 24 25 26 27 28

24

See Sluiter, ‘Obtaining Cooperation from Sudan – Where is the Law?’ (2008) 6 Journal of International Criminal Justice 871 at 873 et seq. 25 icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision Regarding Omar Al-Bashir’s Potential Visit to the Republic of Chad, ICC-02/05-01/09-194 (25 March 2014) and also asp, Report of the Bureau on non-cooperation, ICC-ASP/13/40 (5 December 2014) at para 10. 26 The Court’s request for observations following to Abdel Raheem Muhammad Hussein’s (Hussein) visit to the Republic of Chad was made on 18 September 2013 for a visit on 25–6 April 2013 and on 10 September 2013 following to the accused’s visit on 19 August 2013 to the car. See respectively in this sense icc, Prosecutor v Abdel Raheem Muhammad Hussein Decision on the Cooperation of the Republic of Chad Regarding Abdel Raheem Muhammad Hussein’s Arrest and Surrender to the Court, ICC-02/05-01/12-20 (13 November 2013) at para 8 and icc, Prosecutor v Abdel Raheem Muhammad Hussein Decision on the Cooperation of the Central African Republic Regarding Abdel Raheem Muhammad Hussein’s Arrest and Surrender to the Court, ICC-02/05-01/12-21 (13 November 2013) at paras 5 and 11. 27 icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision following the Prosecutor’s request for an order further clarifying that the Republic of South Africa is under the obligation to immediately arrest and surrender Omar Al Bashir, ICC-02/05-01/09-242 (13 June 2015) at paras 5–10. The non-arrest of Al-Bashir has further triggered national proceedings against the South African Government; see in this sense The High Court of South Africa (Gauteng Division, Pretoria), Southern Africa Litigation Centre v Minister of Justice And Constitutional Development and Others Judgement, (27740/2015) [2015] zagpphc 402 (24 June 2015). 28 See icc, Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman Publicly Redacted Version of “Prosecution request for a finding on the non-cooperation of

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2007.29 The Prosecutor then reported his intent to inform the competent Chamber of the difficulties to secure Sudan’s cooperation.30 A request for a finding of non-cooperation against Sudan in the case against Ahmad Harun and Ali Kushayb was only filed on 19 April 2010.31 The Prosecutor’s request for a finding of non-compliance against Sudan in the arrest and surrender of Al Bashir was not made until December 2014. However, in the request for non-compliance in the cases against Ahmad Harun and Ali Kushayb, the Prosecutor already provided the Chambers with various arguments that demonstrated a trend of non-cooperation on the part of Sudan. Following the Prosecutor’s successful application and the Chamber’s judicial finding of non-cooperation in 2010, Sudan continued to claim that it did not recognise the Court’s authority and made it clear that Sudanese authorities ‘cannot receive any document from the Court and that this position will not change’.32 In his ninth report to the unsc on 5 June 2009, the Prosecutor even quoted the Sudanese presidential assistant saying that, ‘[n]o Sudanese, not Al-Bashir and not a non-Al-Bashir, will appear before the [Court], and we will 29 30 31 32

29

30 31

32

the Government of the Sudan in the case of The Prosecutor v Ahmad Harun and Ali Kushayb, pursuant to Article 87 of the Rome Statute”, filed on 19 April 2010, ICC-02/0501/07-48-Red (19 April 2010) at para 4 and also icc-otp, ‘Statement of the Prosecutor of the icc, Mr Luis Moreno Ocampo, to the un Security Council pursuant to unscr 1593 (2005)’, icc, 7 June 2007, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20 the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/statement/Pages/statement%20of%20the%20prosecutor%20of%20the%20icc%20%20 mr%20%20luis%20moreno%20ocampo%20%20to%20the%20un%20secur.aspx (last accessed 10 August 2015) at 6. icc-otp, ‘Sixth Report of the Prosecutor of the International Criminal Court to the un Security Council Pursuant to unscr 1593 (2005)’, icc, 5 December 2007, available at: www .icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/statement/Pages/sixth%20report%20of%20 the%20prosecutor%20of%20the%20international%20criminal%20court_%20to%20 the%20un%20se.aspx (last accessed 10 August 2015) at para 22. Ibid at para 28. See generally, icc, Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Ali AbdAl-Rahman Publicly Redacted Version of “Prosecution request for a finding on the noncooperation of the Government of the Sudan in the case of The Prosecutor v Ahmad Harun and Ali Kushayb, pursuant to Article 87 of the Rome Statute” filed on 19 April 2010’ (2010) supra n 28. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding of Non-Compliance Against the Republic of the Sudan, (2015) supra n 8 at para 10. Also icc, Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus Defence Application to restrain legal representatives for the victims a/1646/10 & a/1647/10

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not even send a lawyer to represent us there’.33 In light of the aforementioned facts, it is the more puzzling that the first application for a finding in the case against Al Bashir was made only in December 2014; that is, seven years after the last reception of Court documents34 by Sudan and five years after the indictment of Al Bashir. Inaction on the part of icc organs to trigger the procedure under Art. 87(7) icc Statute raises the question whether the law is sufficiently clear as to who shall apply for a finding and when such an application should be submitted. It cannot be excluded that there have been situations in which the Chamber and the Prosecutor might have been waiting for each other to set in motion the Art. 87(7) icc Statute procedure. Yet, under Regulation 109(1) RoC, an application for a finding pursuant to Art. 87(7) icc Statute may be made by ‘the requesting body’, which can be the Chamber, the Prosecutor, the Defence and possibly even the Registrar. The aspect left out of the current regime may be the determination of the timeline for such an application. However, a recent decision by Trial Chamber v(B) on the Prosecutor’s application for a finding of non-cooperation against Kenya rightly indicates that an application for a finding of non-cooperation should be made at the earliest possible opportunity. As such, the Chamber found:

33 34 35

[T]he issue of the Kenyan Government’s cooperation with the Records Request should have been addressed at a much earlier stage; doing so would, to a significant degree, have mitigated the impact that the noncompliance has had on the proceedings in this case.35

from acting in proceedings and for an order excluding the involvement of specified intermediaries, ICC-02/05-01/09-113-Conf-Exp (6 December 2010) at para 8 and Annex 3. 33 See icc-otp, ‘Ninth Report of the Prosecutor of the icc to the un Security Council Pursuant to unscr 1593 (2005)’, icc, 5 June 2009, available at: www.icc-cpi.int/en_menus/ icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20 and%20statements/statement/Pages/ninth%20report%20of%20the%20prosecutor%20 of%20the%20icc%20to%20the%20un%20security%20council%20pursuant.aspx (last accessed 10 August 2015) at para 37. 34 icc, Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman Publicly Redacted Version of “Prosecution request for a finding on the non-cooperation of the Government of the Sudan in the case of The Prosecutor v Ahmad Harun and Ali Kushayb, pursuant to Article 87 of the Rome Statute” filed on 19 April 2010 (2010) supra n 28 at para 10. 35 See icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 22 at paras 86–87.

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The Chamber’s Discretionary Power in Making Its Judicial Finding and/or Referring a Non-Cooperating State should be used in a Transparent and Consistent Manner The terms ‘the Court may so inform the Assembly of States Parties […]’ in Art. 87(5)(b) icc Statute and ‘the Court may make a finding […]’ at paragraph (7) of that provision suggest that making a judicial finding and its further referral to the political bodies is a discretionary power of the Judges. A Chamber has ruled that ‘resort to the measure under article 87 (7) of the Statute is not a mandatory course of action that the Chamber is obliged to pursue in case of a State’s failure to cooperate with the Court’.36 Similar wording was used by the Appeals Chamber when reversing the decision on the Prosecutor’s application for a finding of non-compliance under Art. 87(7) icc Statute.37 As such, there appears no doubt that the use of the Art. 87(7) icc Statute procedure is, in se, discretionary. However, as will be examined in the present section, it is a matter of concern when discretion is exercised in a non-transparent and, arguably, even an arbitrary manner. There are remarkable differences in the exercise of the discretion under Art. 87(7) icc Statute in the decisions issued thus far. For instance, as regards the arrest of Al Bashir, a violation of the obligation to cooperate has been established in some instances but not in all, as the Chamber’s decisions related to Nigeria38 and the drc39 reflect. Both States presented similar, as good as identical, arguments justifying failure to arrest Al Bashir, but diametrically opposed decisions were issued. The arguments used in the drc’s defence of non-cooperation included that Al Bashir was invited ‘by a regional organization and not by the [drc]’40 and:

C

36 37 38 39 40

36

37

38

39

40

icc, Prosecutor v Saif Al-Islam Gaddafi Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council (2014) supra n 21 at para 23. icc, Prosecutor v Uhuru Muigai Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber v(B)’s “Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute”, ICC-01/09-02/11-1032 (19 August 2015) at paras 2, 53 and 55. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Federal Republic of Nigeria Regarding Omar Al-Bashir’s Arrest and Surrender to the Court (2013) supra n 18. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court (2014) supra n 17. Ibid at para 12; see also the annexed documents presented by the drc; icc, Prosecutor v Omar Hassan Ahmad Al Bashir Transmission to Pre-Trial Chamber ii of the observations

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Moreover, the shortage of time between the arrival of Omar Al Bashir in the evening of 25 February 2014, the receipt of the Chamber’s decision on 26 February 2014, and his early departure in the morning of the following day made it ‘materially impossible’ to take a decision with such ‘legal, diplomatic and security implications’.41 To sum up, the drc used arguments relating to the legal difficulties to effect the arrest and time constraints.42 Likewise, Nigeria argued that Al Bashir ‘was not invited to “undertake a visit to Nigeria”’.43 According to the Nigerian authorities, representatives of Member States of the au do not require an invitation of the host governments to attend ‘such [au] Summits in line with the [decision of the Assembly of Heads of State and Government of the African Union at its Session in May 2013] and the tradition of the au Assembly’.44 Moreover, the second argument by the drc, relating to time constraints, is similar to Nigeria’s argument: [T]he sudden departure of President Al-Bashir prior to the official end of the au Summit occurred at the time that officials of relevant bodies and agencies of […] Nigeria were considering the necessary steps to be taken in respect of his visit in line with Nigeria’s international obligations.45 As regards the first argument of the drc that relates to its membership with the au and the fact that it was the au that invited its members to the event,

41 42 43 44 45

submitted by the Democratic Republic of Congo pursuant to the “Decision requesting observations on Omar Al-Bashir’s visit to the Democratic Republic of Congo” dated 3 March 2014, ICC-02/05-01/09-190-AnxII-tENG (17 March 2014) at para 6. 41 Ibid. 42 Ibid. 43 icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Federal Republic of Nigeria Regarding Omar Al-Bashir’s Arrest and Surrender to the Court (2013) supra n 18 at para 11. 44 Ibid; see also icc, Prosecutor v Omar Hassan Ahmad Al Bashir Public Document with four public annexes and one confidential annex: Report of the Registry on the “Decision regarding Omar Al-Bashir’s Visit to the Federal Republic of Nigeria” ICC-02/05-01/09-158Anx4 (13 August 2013) at 4. 45 icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Federal Republic of Nigeria Regarding Omar Al-Bashir’s Arrest and Surrender to the Court (2013) supra n 18 at para 12 and ibid, icc, Prosecutor v Omar Hassan Ahmad Al Bashir Public Document with four public annexes and one confidential annex: Report of the Registry on the “Decision regarding Omar Al-Bashir’s Visit to the Federal Republic of Nigeria” (2013) at 5.

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including Al Bashir46 as a Head of State, Pre-Trial Chamber ii replied that ‘the Chamber cannot accept the argument that a regional organisation would carry out certain activities on the territory of a State without the latter’s prior knowledge and consent’.47 The analysis and reasoning of the Chamber seems accurate and valid, although it was inconsistent with the ruling48 by the same Chamber when the identical argument was presented by the State of Nigeria. With regard to the second argument presented by the drc that concerned the shortage of time between the specific request of the Court and the timing of the State’s reaction, the Chamber accepted the argument made by Nigeria and concluded that the issue of the timing of the arrest was left to the discretion of the State according to Art. 87(7) icc Statute.49 Again, this is an inconsistency that – without further and convincing reasoning – cannot be justified on account of the exercise of discretion under Art. 87(7) icc Statute. Another remarkable incoherence in the exercise of discretion by different Chambers can be found in developing the precise standard of failure to cooperate that may trigger a judicial finding of non-compliance. The question may arise whether a judicial finding of non-compliance is reserved to States acting in bad faith or applies to each and every instance of non-compliance. The current jurisprudence of the icc comprises at least three standards of failure. According to Pre-Trial Chamber ii in the non-cooperation decision against the drc, an ‘apparent failure’50 to comply is a sufficient basis for the Chamber’s judicial finding and its referral. As quoted from the relevant decision: 46 47 48 49 50

46

47 48

49

50

icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court (2014) supra n 17 at para 12; the passage reads as following ‘Omar Al Bashir was invited “by a regional organization and not by the [drc]”’. Ibid at para 17. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Federal Republic of Nigeria Regarding Omar Al-Bashir’s Arrest and Surrender to the Court (2013) supra n 18 at 11 and icc, Prosecutor v Omar Hassan Ahmad Al Bashir Public Document with four public annexes and one confidential annex: Report of the Registry on the “Decision regarding Omar Al-Bashir’s Visit to the Federal Republic of Nigeria” (2013) supra n 44 at 4. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Federal Republic of Nigeria Regarding Omar Al-Bashir’s Arrest and Surrender to the Court (2013) supra n 18 at para 13. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court (2014) supra n 17 at para 33.

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When the sc, acting under Chapter vii of the un Charter, refers a situation to the Court as constituting a threat to international peace and security, it must be expected that the Council would respond by way of taking such measures which are considered appropriate, if there is an apparent failure on the part of States Parties to the Statute or Sudan to cooperate in fulfilling the Court’s mandate as entrusted to them by the Council.51 Pre-Trial Chamber i in the non-cooperation decision against Libya apparently uses the standard ‘objective failure’ to comply. As such, the relevant aspect of the decision states that ‘[t]here must be an objective failure on the part of the State to comply with a cooperation request’.52 In Pre-Trial Chamber i’s view, following its ‘objective failure’ standard, the State’s underlying motives for non-compliance are irrelevant. Finally, in its recent decision concerning Kenya, Trial Chamber v(B) held that the finding of non-cooperation should be based on a ‘complete failure’53 to comply with the Court. The Chamber elaborated that for non-compliance to meet the threshold of Art. 87(7) icc Statute, there should be an ‘unjustified inaction or delay, or a clear failure to have in place appropriate procedures for effecting the cooperation’54 and that the party moving for a determination under Art. 87(7) icc Statute should be able to demonstrate that the requested State’s conduct breached the ‘standard of good faith cooperation required from States Parties’.55 The matter was most recently addressed by the Appeals Chamber in the Kenyatta case:

51 52 53 54 55

[T]he Appeals Chamber considers that a Chamber, when deciding whether to refer a matter of non-cooperation to the asp or unsc, should consider whether a referral of a State’s failure to comply with a request for cooperation is an appropriate measure to either seek assistance from external actors to obtain the requested cooperation or otherwise address the lack of cooperation from the requested State. In this regard, it is

51 Ibid. 52 icc, Prosecutor v Saif Al-Islam Gaddafi Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council (2014) supra n 21 at paras 24 and 33. 53 icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 22 at para 75 and also icc, Prosecutor v Uhuru Mulgai Kenyatta Decision on the Prosecution’s request for leave to appeal, ICC-01/09-02/11-1004 (9 March 2015) at para 21. 54 Ibid at para 42. 55 Ibid at paras 42 and 67.

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important to note that a referral may be value-neutral and not necessarily intended to cast a negative light on the conduct of a State. Since the ultimate goal is to obtain cooperation, a Chamber has discretion to consider all factors that may be relevant in the circumstances of the case, including whether external actors could indeed provide concrete assistance to obtain the cooperation requested taking into account the form and content of the cooperation; whether the referral would provide an incentive for cooperation by the requested State; whether it would instead be beneficial to engage in further consultations with the requested State; and whether more effective external actions may be taken by actors other than the asp or the unsc, such as third States or international or regional organisations. In conclusion, the Appeals Chamber considers that it is clear that, in determining whether a referral is appropriate, a Chamber will often need to take into account considerations that are distinct from the factual assessment of whether the State has failed to comply with a request to cooperate. The Appeals Chamber therefore considers that a referral is not an automatic consequence of a finding of a failure to comply with a request for cooperation, but rather this determination falls within the discretion of the Chamber seized of the article 87 (7) application.56 In light of the foregoing, there remains persisting uncertainty as to the applicable standard of failure to cooperate, as this may mean several things. The latest Appeals Chamber’s ruling in the Kenyatta case has been far from helpful and was clearly not in the interests of an effective and non-politicised regime on the enforcement of cooperation. Emphasising discretion on the part of the Trial Chamber, including reference to include all relevant factors, without further explanation as to what these might be, is, in the view of the authors, not a wise approach. It fuels the concerns that discretion under Art. 87(7) icc Statute is used in an inconsistent, possibly even arbitrary, manner. This concern is aggravated by the fact that the two States which have escaped a finding of noncompliance under Art. 87(7) icc Statute happen to be two of the most powerful Member States of the au, which is extremely critical of the icc. It would indeed be a negative development of politicisation if the enforcement process already starts with unjustifiably diverging decisions under Art. 87(7) icc Statute. Therefore, with a view to minimise politicisation of the enforcement procedures, it is advised that the exercise of discretion is minimised and the 56

56

icc, Prosecutor v Uhuru Muigai Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber v(B)’s “Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute” (2015) supra n 37 at para 53.

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standard applied by Pre-Trial Chamber i in relation to Libya is reinstated, namely ‘objective failure to comply’. 3

Quality of the Article 87(7) Procedure, Including Due Process Elements and the Possibility for the Requested State to Appeal

The procedure under Art. 87(7) icc Statute is not the Court’s core business and the due process elements governing criminal trials are clearly not applicable to it. However, this is not to say that in this type of administrative proceedings the requested State does not enjoy rights at all. On the contrary, proceedings pursuant to Art. 87(7) icc Statute can, in the view of the present authors, only be credible and authoritative when the following due process-elements – or requirements of natural justice – are adequately protected: (i) the State accused of having violated its cooperation obligations should be given a fair opportunity to present its case (ii) before an impartial Judge and (iii) with recourse to judicial review of a negative decision; (iv) following a fair and adversarial procedure; and, finally, (v) the Chamber should provide a reasoned decision, which adequately explains why arguments and the position of the targeted State should be rejected. A State Subjected to an Article 87(7) Procedure should be given a Fair Opportunity to Present its Case The opportunity for a State to present its case – or defence – related to an alleged failure to cooperate appears adequately protected in the law of the icc, in two ways. First, pursuant to Regulation 109(3) RoC, a Chamber must provide the requested State with the opportunity to present its views, prior to issuing any finding under Art. 87(7) icc Statute. Second, under Regulation 108(1) RoC, where there is a dispute regarding the legality of a request for cooperation under Art. 93 icc Statute, a requested State may apply for a ruling from the competent Chamber. The purpose of Regulation 108 RoC is to have the Court withdraw or amend a request for legal assistance which is unlawful – or would require the requested State to act unlawfully.57 It is indeed in the interests of justice to offer such an opportunity for a state to actively challenge a request, prior to any Art. 87(7) icc Statute procedure. It is then submitted that Regulation 108 RoC should also extend to cooperation disputes beyond Art. 93 icc Statute, essentially including requests A

57

57

Regulation 108(1) RoC restrictively mentions only requests under Art. 93 icc Statute.

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for arrest and surrender. One ought to be aware of the content of Art. 59(4) icc Statute, namely that: ‘It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b)’. However, this provision does not rule out a broader challenge to the legality of a request for arrest or surrender, such as the compliance of the request with Arts. 98 or 91(2)(c) icc Statute. In this sense, a State may challenge the execution of a request if it faces difficulties to secure cooperation of a third State, with respect to waiver of immunity and consent to surrender a national of that State under Art. 98 icc Statute. A further potential challenge under 91 (2)(c) icc Statute may be based on the lack of, or the insufficiency of, supporting documents, statements or information to effect arrest on the territory of the requested State, considering that these requirements are less burdensome than those allowed under its national law for extradition pursuant to treaties or arrangements between the requested State and other States. It is uncertain at what moment and under what circumstances a requested State can apply for a ruling of the legality of the cooperation request. In the current findings of non-cooperation, requested States are either addressed by the Court only a few days before, or even after, the visit of the accused person or they are not individually invited to execute their arrest obligation. State Parties are not allowed to apply for a ruling on the legality of a general request to arrest and surrender. They need to be addressed individually to have an occasion to do so. In the current practice of the Court, requested States are not given the time to apply for such a ruling, as the drc tried to point out unsuccessfully.58 Furthermore, they are placed in a situation in which a late request from the Court puts the State in a materially difficult position to execute the arrest, as Nigeria successfully mentioned in respect of its non-cooperation in the arrest of Al Bashir.59

58 59

58

59

icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court (2014) supra n 17 at para 12. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Federal Republic of Nigeria Regarding Omar Al-Bashir’s Arrest and Surrender to the Court (2013) supra n 18 at para 12.

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A State Subjected to an Article 87(7) Procedure should be given an Opportunity to be Heard Regulation 109(3) RoC stipulates in clear terms that ‘[b]efore making a finding in accordance with article 87 paragraph 7, the Chamber shall hear from the requested State’.60 The Regulation uses the word ‘shall’, which means that it is an obligation61 for the Chamber to learn the reasons for non-compliance by the requested State before a possible finding of non-compliance. One may even add that the term ‘hear’ suggests that the arguments of the requested State should in principle be presented in a public hearing in front of a Judge. Although Chambers have stressed the importance of the right of the requested State to be heard, the current practice seems to indicate otherwise. Some of the non-cooperation findings by the Court did not refer to that important right and no opportunity was given to the requested State to justify its non-compliance. Even more disturbing are the cases where the Chamber decided that the requested State’s right to be heard was waived. Decisions with such irregularities include findings relating to visits by Al Bashir to Kenya,62 Djibouti63 and Chad.64 In another instance of noncooperation by Chad,65 even when the requested State explicitly requested the opportunity to present its arguments in front of the Court, the Chamber rejected the State’s request. In the instance of Al Bashir’s visit to Kenya, Pre-Trial Chamber i’s relevant decision stated that, from public information available to it, Al Bashir visited the Republic of Kenya on 27 August 2010 to attend the promulgation of the new

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60 61 62 63 64 65

60 61

62

63

64

65

See Regulation 109(3) icc RoC. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court (2014) supra n 17 at para 11. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya (2010) supra n 14. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti (2011) supra n 15. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad (2010) supra n 10. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir (2011) supra n 11 at para 7.

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Kenyan Constitution. On the same day as the accused’s visit, the Chamber took its decision to inform both the unsc and the asp of non-compliance. In this case, the Chamber failed to invite the requested State to explain the reasons for its non-compliance, as required under Regulation 109 RoC. Al Bashir’s visit for the inauguration ceremony of Djibouti’s President Ismael Omar Guelleh on 8 May 2011 was reported to the Chamber on 9 May 2011.66 Here again, the Court decided to inform the competent enforcement bodies, just as in the case of the visit to Kenya, without observing the requirement of Regulation 109 RoC to hear the views of Djibouti. In another instance, Al Bashir visited N’Djamena in Chad, according to a Registry report, to attend the Summit of the Sahel-Saharan States on 21 July 2010, and allegedly left Chad on 23 July 2010.67 The visit was reported by the Registry to the Chamber on 27 July, which was four days after the visit. Pre-Trial Chamber i failed to invite Chad to explain the reasons for its non-cooperation and/or its lack of consultation with the Court.68 What is equally disturbing is the Chamber’s practice in certain instances to consider the State’s right to be heard as waived.69 This has happened on at least two occasions, namely the finding of non-cooperation by Sudan in the Al Bashir case and one instance of non-cooperation by Chad in 2013. In the case of Chad, following a delay in presenting the observations requested, the Chamber decided not only to waive Chad’s right to be heard but also to disregard the State’s reply.70 The waiver of Sudan’s right to be heard followed the Chamber’s holding that the State has constantly refused to engage in a dialogue with the 66 67 68 69 70

66 See icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti (2011) supra n 15 at para 2. 67 icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad (2010) supra n 10. 68 See icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad (2010) supra n 10. 69 icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir (2013) supra n 12 at para 18 and also icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding of Non-Compliance Against the Republic of the Sudan (2015) supra n 8 at para 19. 70 icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir (2013) supra n 12 at para 19.

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Court’s organs over the past six years.71 It appears that – in both instances – the right to present views was not unequivocally waived. Rather, the Chamber denied the State the opportunity to make submissions on grounds which do not appear convincing. For the credibility and authority of findings under Art. 87(7) icc Statute, Chambers should exercise more caution in assuring a State’s right to present views and make submissions. A State Subjected to an Article 87(7) Procedure should be Able to Appeal the Chamber’s Finding of Non-Cooperation In the view of the present authors, the possibility of appealing a finding of non-compliance is an essential ingredient of fair enforcement proceedings. Such a second chance for the requested State is not only important because of what may be at stake for the State concerned. It must also be borne in mind that in the institutional configuration of the icc it is, at present, only the Appeals Chamber that may be able to rule at a later stage on a cooperation dispute. In first instance, the Chamber ruling on the refusal to cooperate is likely to be the same icc organ which has issued the request for cooperation in the first place. This – with good reason – can raise concern with the requested State that it is facing a situation at odds with the maxim nemo iudex in sua causa, namely that no one shall be a Judge in his or her own cause. In light of the importance of the availability of appellate recourse for review and bearing in mind that the predecessors of the icc – the icty and ictr – explicitly allow for appeal proceedings,72 it is remarkable that the law of the icc does not explicitly provide for a similar opportunity. Rather, in the current practice, findings of non-compliance are directly transmitted for referral to the political bodies as the dates of referral in our previous table demonstrate. Neither within Art. 87(5) and (7) icc Statute, nor in Regulation 109 RoC, and not even in the icc rpe, is there mention of the possibility to appeal for the requested State. Furthermore, the asp and unsc, when in receipt of the Court’s finding, cannot act as an appeal mechanism for icc decisions. The asp has emphasised that, given the respective roles of the Court and the asp, any response by the asp is non-judicial in nature and is based on its competencies under Art. 112 icc Statute.73

C

71 72 73

71

icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding of Non-Compliance Against the Republic of the Sudan (2015) supra n 8 at para 19. 72 See Rule 108 bis of the icty and ictr rpe. 73 See asp, Assembly Procedures Relating to Non-Cooperation, 12 December 2011, ICCASP/10/Res.5 as amended by asp, Strengthening the International Criminal Court and the Assembly of States Parties, 21 November 2012, ICC-ASP/11/Res.8.Annex 1 at 6.

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It is true that a State could try to initiate appeal proceedings under the general provision, namely Art. 82(1)(d) icc Statute. But, in light of the Appeals Chamber’s jurisprudence, it is likely that such an appeal would be declared inadmissible, as the requested State is unlikely to be considered a party or the matter would not be considered to fall within the material scope of permissible appeals. Moreover, just as is the case with the icty and ictr, the law of the icc should not have States second-guess about the availability of an appeals procedure, but should explicitly provide for it. Finally, it is regrettable that the Appeals Chamber failed to seize the opportunity to elaborate on the scope of appeals in the context of decisions related to Art. 87(7) icc Statute. The Appeals Chamber in the Kenyatta case handled an appeal filed by the Prosecutor against a Trial Chamber decision denying a referral pursuant to Art. 87(7) icc Statute.74 There was no discussion in respect of admissibility, as the Prosecutor’s appeal fell obviously within the scope of Art. 82 icc Statute; yet, a truly adversarial and fair hearing would – of course – require that if such an appeal is available to the Prosecutor, it should also be available to the requested State in case a ruling does not turn out to be in its favour. Unfortunately, the Appeals Chamber did not address this matter. The apparent absence of appellate proceedings in case of a judicial finding of non-compliance is a serious shortcoming in the quality and fairness of enforcement procedures. D A Judicial Finding of Non-Compliance should be Well-Reasoned That there should be a judicial finding of non-compliance of sufficient quality is not only a goal in and of itself, it also serves the important purpose of not undermining the subsequent enforcement process. In case the judicial finding is poorly reasoned, or taken after a flawed procedure, it may influence the discussions on further measures in the asp and/or the unsc. Poorly reasoned decisions have hardly gathered legitimacy and may fuel criticism within the asp, thus potentially leading to a practice of non-enforcement.75 It is notable that, apart from the December 2014 decision of Trial Chamber v(B), which extensively clarified some of the concepts of an Art. 87(5) and (7) icc Statute procedure, the average decision by a Chamber on this issue is fewer than ten pages and the scope and content of the Chambers’ reasoning is hardly 74 75

74

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icc, Prosecutor v Uhuru Muigai Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber v(B)’s “Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute” (2015) supra n 37. Our following discussion on the current debate within the asp will return to the diverging views of States Parties.

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consistent from one decision to another.76 It has already been alluded to, that each Chamber may have its own understanding of the standard of non-­ compliance that reaches the threshold for a judicial finding. It exceeds the scope of this chapter to analyse the quality of legal argument in all Art. 87(7) icc Statute decisions. The following section merely offers the most striking example. In respect of the failure to arrest Al Bashir, the cooperation disputes raise a very complex issue, namely the tension between the duty to cooperate and respecting the immunities that sitting Heads of State enjoy under international law. Certain States that have refused to arrest Al Bashir have invoked Art. 98(1) icc Statute as a justification; this provision obliges the Court to respect and act in accordance with the obligations a State Party may have under international law with respect to State immunity of a third State (Sudan). The obligation to respect the immunity of Al Bashir is – whatever political motives may drive a State – in principle a reasonable legal argument potentially justifying non-compliance. The matter has been hotly debated in the literature, with no one clear outcome in favour of arresting and surrendering Al Bashir. One scholar, Akande, has adopted the position that a State Party may not claim immunity obligations towards third States as a ground justifying the refusal to arrest and surrender of the suspect.77 Another scholar, Gaeta, is of the contrary view, and provides a number of arguments in favour of that position.78 In none of the first Al Bashir enforcement decisions has this debate been adequately captured and analysed; as a result, these decisions were, in terms of their analysis, weak and thus unconvincing. The initial position of the Court was that the requested State cannot validly rely on Art. 98(1) icc Statute to justify its failure to arrest a sitting Head of State. In its reasoning the Chamber uses argumentation which comes down to an overall rejection of the applicability of international law on State immunities 76 77 78

76

77 78

The length of the decision itself may not be a criterion upon which to evaluate its quality but serious doubt can be cast on a four page decision (icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya, (2010) supra n 14) that comprises a two page heading and a page of summary on historical background of the decision on such an important issue, that is a State’s cooperation to arrest and surrender a sitting Head of State. See generally Akande, ‘International Law Immunities and the International Criminal Court’ (2004) 98 The American Journal of International Law 407. See Gaeta, ‘Does President Al-Bashir Enjoy Immunity from Arrest?’ (2009) 7 Journal of International Criminal Justice 315.

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in relation to the functioning of the Court.79 However, this entire line of argumentation deprives Art. 98(1) icc Statute of any meaningful effect, contrary to what the drafters must have had in mind. The over-simplification is also painful in light of the complex debate in the literature, between, amongst others, the abovementioned authors Akande and Gaeta. Another judicial finding of non-compliance that did little to repair the damage in the reasoning of the first ‘reasoned’ decision dealing with the complex immunities issue in the Al Bashir case is the decision against Chad of December 2011.80 It was only after some time that another Chamber reversed and considerably improved on the reasoning regarding immunities available to Al Bashir in the judicial finding of non-cooperation against the drc.81 In fact, Pre-Trial Chamber ii recognised that on the basis of Art. 98(1) icc Statute, the drc could be barred from arresting and surrendering Al Bashir if it did not previously seek to obtain the lifting of the immunities by the non-State Party, Sudan. However, the Chamber then argued that unsc Resolution 1593 (2005) had the effect of implicitly lifting Al Bashir’s immunities. Moreover, the Chamber added that since Al Bashir’s arrest originated from a unsc resolution, it created an obligation towards un Member States that prevailed over any other obligation a State may have assumed under other treaties.82 This Chamber’s decision does more justice to the complexities of the arguments involved. However, it may have been too late and also too little. The absence of cooperation in arresting Al Bashir is at present at the heart, if not to say symbolic, of the procedures under Art. 87(7) icc Statute at the Court. For these procedures to live up to their potential, to be credible and effective, the quality of the Chambers’ reasoning should have been better from the beginning. 79 80 81 82

79

80

81

82

See generally icc, Prosecutor v Omar Hassan Ahmad Al Bashir Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (2011) supra n 16 at paras 37–43. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir (2011) supra n 11. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court (2014) supra n 17 at paras 26–31. Ibid at para 31.

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Availability and Use of Credible Enforcement Mechanisms after a Judicial Finding of Non-Compliance

The judicial finding of non-compliance has a two-sided, pivotal, function in securing cooperation. It establishes first of all that an international legal obligation to cooperate has been violated. Secondly, it is the basis for adopting measures aimed at securing that cooperation and/or enforcing the lack thereof. It is thus the position of the present authors that a judicial finding of noncompliance is the basis for further measures of enforcement. One cannot do without the other. Without a judicial finding of non-compliance, enforcement measures are of an arbitrary, possibly also illegal, nature. But a finding of noncompliance without a follow-up action weakens the authority of cooperation obligations and, one may add, the authority of the Court as a whole. The last of the three proposed consecutive steps focuses on the enforcement avenues within the asp and the unsc, as the bodies that are the main addressees of the judicial findings under Art. 87(5) and (7) icc Statute. This is not to undermine the potential use of other international law mechanisms that include the involvement of individual States and regional organisations. In fact, it is established under the law of international responsibility that individual States may enforce non-compliance as an internationally wrongful act of the wrongdoer. Also, the practice of the icty has shown the importance of measures that regional organisations may take against a State that is noncompliant towards an international tribunal. However, addressing in full the potential of enforcement initiatives outside the context of the asp and the unsc would exceed the scope of this chapter. Moreover, with two bodies available to deal with enforcement of cooperation, the asp and the unsc, the political reality seems that States are not keen on seeking to obtain enforcement of cooperation outside these fora. The United Nations may Enforce Non-Cooperation under Chapter vii of the United Nations Charter To date, ten non-cooperation judicial findings of the Chambers have been referred to the unsc for consideration,83 none of which have, thus far, triggered A

83

83

Apart from icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Federal Republic of Nigeria Regarding Omar Al-Bashir’s Arrest and Surrender to the Court (2013) supra n 18 and icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 22, all other decisions in the table at the start of the chapter have been referred to the unsc.

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any concrete and effective enforcement measure by the unsc. One may wonder what is behind this inactivity. Does it mean that non-compliance in the arrest of an icc suspect is not considered to amount to a threat to international peace and security? Or does it demonstrate mistrust by the unsc towards the judicial proceedings pursuant to Art. 87(5) and (7) icc Statute even for situations referred by the unsc? Or is there insufficient political will to support the Court in the fulfilment of its mandates given by the unsc? It is important to point out that the possibility of a referral of non-compliance to the unsc has been interpreted as including both situations referred to the Court by the unsc under Art. 13(b) icc Statute and other situations, provided that the unsc may define the latter as constituting a threat to international peace and security.84 The competence of the un in receiving judicial findings of non-compliance is further supported by Art. 17(3) Negotiated Relationship Agreement between the International Criminal Court and the United Nations (un-icc Agreement).85 The unsc has on two occasions referred situations to the Prosecutor, namely Darfur, Sudan and Libya. It cannot be said that the unsc has paid no attention at all to cooperation with the icc in respect of these two and other situations presently before the Court. For example, the unsc held a meeting on 17 October 201286 on the promotion and strengthening of the rule of law in the maintenance of international peace and security, during which the main focus was the icc. Moreover, in several of its resolutions on the drc, the unsc has not only called upon the un Organization Stabilization Mission in the drc (‘monusco’)87 and other un peacekeeping forces to cooperate with national authorities to arrest icc suspects, but it has, also explicitly targeted individuals allegedly responsible for serious violations of international humanitarian law in the drc in its sanction list.88 The unsc has, on other occasions, not only urged Côte d’Ivoire to cooperate with the icc, but also lifted the travel ban on the suspects in that situation to facilitate their transfer to The Hague. In other 84 85 86 87 88

84

See Arts. 39 and 41 un Charter; see also in this sense Reisinger-Coracini, ‘Coping with non-compliance’ in Sluiter, Friman, Linton, Zappala and Vasiliev (eds), International Criminal Procedure Principles and Rules (Oxford: oup, 2013) 105 at 107. 85 See Art. 17 (3) Negotiated Relationship Agreement between the International Criminal Court and the United Nations (un/icc relationship agreement); concluded between the un and the icc pursuant to Art. 2 of the icc Statute and entered into application on 4th October 2004. 86 See unsc, sc 67th Year Report for the 6849th Meeting, 17 October 2012, S/PV.6849. 87 See unsc Res 2053, 27 June 2012, S/RES/2053 (2012) at 1 and 13. 88 See unsc Res 2136, 30 January 2014, S/RES/2136 (2014).

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instances, the unsc has expanded its practice of enlisting individuals that represent a threat to international peace and security to include persons subject to an arrest warrant issued by the icc. Surprisingly, Al Bashir and other indicted individuals in the Situation in Darfur, Sudan are not part of the un list of sanctioned individuals.89 Records of the unsc on the specific issue of the enforcement of non-cooperation with the icc are, however, quite poor. In fact, apart from a Presidential Statement following the unsc’s meeting on the rule of law in the context of peace and security,90 the unsc has hardly taken any measures against noncooperating States, including in situations it has itself referred to the Court. It is argued that this undermines the role that the un should play in the maintenance of international peace and security. The unsc’s current debate on issues of non-compliance with icc arrest appears to be dominated more by political considerations than legal ones. Reports of the asp indicate that on more than one occasion when the asp President contacted her unsc counterpart regarding possible measures that the unsc may take against States, she was told that unsc permanent members were unwilling to use their available powers under Chapter vii un Charter against non-compliant States.91 The Assembly of States Parties and the Enforcement of Non-Cooperation The competence of the asp on matters of non-cooperation is based on Art. 87(5) and (7) icc Statute, in conjunction with Art. 112 icc Statute. While Art. 87(5) and (7) icc Statute already suggest that the asp can exercise powers in respect of non-cooperating States, it is Art. 112 icc Statute that explicitly attributes such powers. In fact, Art. 112(1)(f) icc Statute stipulates that the asp shall consider pursuant to Art. 87(5) and (7) icc Statute any question relating to non-cooperation. The word ‘consider’ leaves much to be desired in terms of clarity; it remains ambiguous what type of concrete action and measures the asp could take in response to non-cooperative States. It is submitted that a teleological interpretation of Art. 112(1)(f) icc Statute would be fully justified: B

89 90 91

89 Ibid. 90 See unsc, Statement by the President of the Security Council, 16 June 2008, S/PRST/2008/21 and unsc, Statement by the President of Security Council, 29 June 2010, S/PRST/2010/11. 91 asp, Report of the Bureau on non-cooperation, 7 November 2013, ICC-ASP/12/34 at para 14 and also asp, Report of the Bureau on non-cooperation, 5 December 2014, ICC-ASP/13/40 at paras 25–30.

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the asp should be able, under the umbrella of ‘considering’, to take all measures necessary to continue to ensure the effective functioning of the Court. To date, seven out of the ten judicial findings of the Court have been referred to the asp as they concerned non-cooperation instances of State Parties.92 The asp has developed and implemented a range of measures in order to encourage cooperation, entering into a dialogue with non-cooperating States and advocating the avoidance of instances of non-cooperation.93 Such measures further include the asp procedures relating to non-cooperation,94 the creation of regional focal points on the issue,95 communication through yearly reports by the asp Bureau on non-cooperation, presidential press releases following the Court’s referrals of non-cooperation findings and the use of social media to inform the general public about the asp’s activities. In the current practice of the asp, when the office of the asp President is aware of a visit of an accused to a State Party, it verifies this information with authorities of the concerned State. The President further notifies all State Parties and other stakeholders and encourages them to act to avoid an instance of non-compliance. In the event the accused individual visits the State Party without being arrested, the New York Working Group of the asp convenes an informal meeting to discuss the measures they may adopt against the concerned State. The asp President issues a press release to condemn the State’s failure and sends an open letter to the non-cooperating States inviting its representatives to discuss the issue in the asp forum. As a follow-up, the asp President meets with the unsc President to enquire about the measures that the unsc may take against the non-cooperating State. Such a procedure has been used on various occasions, including against Malawi and Chad following the non-arrest of Omar Al Bashir in 2012,96 the car, Chad and Nigeria in 2013 92 93 94 95 96

92

93

94 95

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These referrals include the three instances of non-cooperation of Chad in the arrest of Al Bashir, non-cooperation instances against Kenya in the arrest of Al Bashir, Djibouti, Malawi, the drc and Libya as detailed in the table at the start of the chapter. This is currently done by the The Hague Working Group of the Bureau, see generally in this sense asp, Report of the Bureau on non-cooperation, 1 November 2012, ICC-ASP/11/29. See in this sense, asp, Assembly Procedures Relating to Non-Cooperation (2011) supra n 66. To date, Belgium, Japan and Uruguay are non-cooperation focal points for their respective regions, see in this sense asp, ‘Bureau of the Assembly of States Parties First meeting’, icc, 24 January 2014, available at: www.icc-cpi.int/en_menus/asp/bureau/decisions/2014/ Pages/Decisions-of-the-Bureau-(01).aspx (last accessed 11 August 2015) at 2. asp, Report of the Bureau on non-cooperation (2012) supra n 93 at paras 4–11.

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following non-compliance by the car and Chad in arresting Hussein during his visit to their respective territories and Nigeria and Chad following the nonarrest of Al Bashir97 and, recently, against the drc and Chad again in 2014.98 Although asp reports mention discrepancies in the Chamber’s decision, including an instance of non-arrest of Al Bashir by Chad in 2014 where no decision was made under Art. 87(5) and (7) icc Statute,99 the real attention lies elsewhere. The general debate within the asp points to diverging views of State Parties on the issue of the immunities of sitting Heads of State and the related arrest obligation. On the one hand, one should mention the position of African State Parties,100 according to which sitting Heads of State and other senior officials enjoy immunities during their tenure of office pursuant to principles deriving from national laws and customary international law.101 In addition to the common African State Parties’ position, Chad reiterated the need to discuss the challenges faced by au countries in relation to cooperation, in light of the au decisions.102 On the other hand, there is the contrary eu State Parties’ position within the asp, according to which ‘the irrelevance of the official capacity of the person concerned with regard to his or her personal criminal responsibility, in proceedings before the icc, has been an essential achievement in international criminal justice’.103 This debate within the asp is a matter of concern, since it reveals some form of continuation of the Art. 87(7) icc Statute procedure within the asp. It is clear that this should be avoided, and State Parties should be reminded that Court decisions must be respected. However, as argued earlier, the Art. 87(7) icc Statute procedure – in terms of its overall quality and consistency – leaves 97 98 99 100 101 102 103

97 98 99 100

asp, Report of the Bureau on non-cooperation (2013) supra n 91 at paras 9–16. asp, Report of the Bureau on non-cooperation (2014) supra n 91 at paras 20–22. Ibid at para 13. It is worth noticing that for the first time in the asp history, African States Parties of the icc represented by Lesotho presented a common position on the issue. 101 See Maope, ‘Ambassador and Permanent Representative of Lesotho to the un: Statement on behalf of African state parties to the Rome Statute at the 13th session of the Assembly of States Parties to Rome statute of the icc’, icc, 8 December 2014, available at: www.icc-cp i.int/EN_Menus/asp/sessions/general%20debate/pages/generaldebate_13th_session .aspx (last accessed 11 August 2015). 102 See asp, Report of the Bureau on non-cooperation (2014) supra n 91 at para 24. 103 See Politi, ‘Chair of cojur-icc: Statement on behalf of the European Union and its Members States’, icc, 10 December 2014, available at: www.icc-cpi.int/EN_Menus/asp/ sessions/general%20debate/pages/generaldebate_13th_session.aspx (last accessed 11 August 2015) at 5.

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much to be desired and affected States did not have a possibility to appeal negative outcomes. As a result, that the legal discussion resurfaced within the asp cannot come as a complete surprise. It is argued that the asp has – in the area of enforcement of cooperation – until now acted below expectations. The starting point for the asp should be a firm position and credible enforcement measures upon receipt of findings of non-compliance under Art. 87(7) icc Statute. The reality is, however, that no concrete and effective measures are taken by the asp. Non-cooperative States do not appear impressed at all by the soft and diplomatic initiatives, such as the initiation of a dialogue with the non-cooperative State. To the best available knowledge, no State has improved cooperation as a result of asp involvement. What is more, the enforcement of cooperation within the asp appears highly politicised, with a powerful block of au States opposed against concrete and effective enforcement measures. It appears that the solution should be found in automatic follow-up action, with no or extremely little room for discretion within the asp. Radical transformation and improvement of addressing enforcement of cooperation within the asp should be an absolute priority. Each new instance of judicially established non-cooperation without credible response increases and confirms the impression that there is no harm in refusing cooperation with the Court. 5 Conclusion This chapter has been based on the working hypothesis that credible and authoritative enforcement of cooperation obligations in the context of the icc will ultimately depend on three basic conditions: (i) availability and consistent use of the Art. 87(7) icc Statute procedure (judicial finding of non-compliance); (ii) high-quality procedures, in conformity with the requirements of natural justice, and well-reasoned decisions; (iii) availability of and consistent use of effective enforcement measures within the unsc and asp. After a substantial number of years of practice regarding the enforcement of cooperation, regrettably, only negative conclusions can be drawn in respect of the aforementioned basic conditions underlying effective enforcement of cooperation. None of these basic conditions have, at the time of writing, functioned adequately in the context of the icc. The procedure under Art. 87(7) icc Statute has not been used in a timely and consistent fashion. The quality of the process and the decisions leave much to be desired; there is no recognised possibility for appeal by affected

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States. Finally, within the unsc and asp there is an apparent apathy when it comes to taking effective measures directed at non-cooperative States. This begs the question what can and should be done to remedy the situation. It is suggested that the key to improving the situation lies in a combination of specialisation and de-politicisation. It is the impression of the present authors that issues of non-cooperation do not get sufficient attention both within the Court and the asp. This can be improved by making the issue of non-cooperation within the Court and the asp a priority and an important area of specialisation. If necessary, this could develop, for example, into a specialised Chamber dealing with procedures under Art. 87(7) icc Statute. In addition, de-politicisation is the key to a more active asp. Of course, the asp is a political body by nature. As is already evidenced, cooperation issues may seriously divide States within the asp, carrying the risk that the cooperation litigation finds some form of continuation within the asp. This should be avoided. This can be done by laying some ground rules: (a) judicial findings of non-compliance cannot be challenged or subject to debate within the asp, and (b) enforcement measures are as good as automatic and to be taken by a specifically designated committee within the asp. In addition, it is recommended that enforcement measures are developed – and taken – which are more effective, and really affect the non-complying State. In this regard, one can think of financial measures – temporary increase in contribution, temporary loss of voting rights in the asp (see Art. 112(8) icc Statute, which provides for this sanction in case of failure to pay financial contributions to the Court in time), temporary loss of right to submit candidates for judicial vacancies etc. List of References Books and Journals

Akande, ‘International Law Immunities and the International Criminal Court’ (2004) 98 The American Journal of International Law 407. Gaeta, ‘Does President Al-Bashir Enjoy Immunity from Arrest?’ (2009) 7 Journal of International Criminal Justice 315. Reisinger-Coracini, ‘Coping with non-compliance’ in Sluiter, Friman, Linton, Zappala and Vasiliev (eds), International Criminal Procedure Principles and Rules (Oxford: OUP, 2013) 105. Sluiter, ‘Obtaining Cooperation from Sudan – Where is the Law?’ (2008) 6 Journal of International Criminal Justice 871.

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Legal Cases and United Nations Documents

ICC, Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman Publicly Redacted Version of “Prosecution request for a finding on the non-cooperation of the Government of the Sudan in the case of The Prosecutor v Ahmad Harun and Ali Kushayb, pursuant to Article 87 of the Rome Statute”, filed on 19 April 2010, ICC02/05-01/07-48-Red (19 April 2010). ICC, Prosecutor v Ahmad Muhammad Harun And Ali Muhammad Ali Abd-Al-Rahman Decision informing the United Nations Security Council about the lack of cooperation by the Republic of the Sudan, ICC-02/05-01/07-57 (25 May 2010). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad, ICC-02/05-01/09-109 (27 August 2010). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya, ICC02/05-01/09-107 (27 August 2010). ICC, Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus Defence Application to restrain legal representatives for the victims a/1646/10 & a/1647/10 from acting in proceedings and for an order excluding the involvement of specified intermediaries, ICC-02/05-01/09-113-Conf-Exp (6 December 2010). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti, ICC-02/05-01/09-129 (12 May 2011). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-139-Corr (13 December 2011). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-140-tENG (13 December 2011). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-151 (26 March 2013). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Public Document with four public annexes and one confidential annex: Report of the Registry on the “Decision regarding Omar Al-Bashir’s Visit to the Federal Republic of Nigeria” ICC-02/05-01/09-158Anx4 (13 August 2013).

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ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Federal Republic of Nigeria Regarding Omar Al-Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-159 (5 September 2013). ICC, Prosecutor v Abdel Raheem Muhammad Hussein Decision on the Cooperation of the Republic of Chad Regarding Abdel Raheem Muhammad Hussein’s Arrest and Surrender to the Court, ICC-02/05-01/12-20 (13 November 2013). ICC, Prosecutor v Abdel Raheem Muhammad Hussein Decision on the Cooperation of the Central African Republic Regarding Abdel Raheem Muhammad Hussein’s Arrest and Surrender to the Court, ICC-02/05-01/12-21 (13 November 2013). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Transmission to Pre-Trial Chamber II of the observations submitted by the Democratic Republic of Congo pursuant to the “Decision requesting observations on Omar Al-Bashir’s visit to the Democratic Republic of Congo” dated 3 March 2014, ICC-02/05-01/09-190-AnxII-tENG (17 March 2014). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision Regarding Omar Al-Bashir’s Potential Visit to the Republic of Chad, ICC-02/05-01/09-194 (25 March 2014). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-195 (9 April 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, ICC-01/09-02/11-982 (3 December 2014). ICC, Prosecutor v Saif Al-Islam Gaddafi Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council, ICC-01/11-01/11-577 (10 December 2014). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding of Non-Compliance Against the Republic of the Sudan, ICC-02/0501/09-227 (9 March 2015). ICC, Prosecutor v Uhuru Mulgai Kenyatta Decision on the Prosecution’s request for leave to appeal, ICC-01/09-02/11-1004 (9 March 2015). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision following the Prosecutor’s request for an order further clarifying that the Republic of South Africa is under the obligation to immediately arrest and surrender Omar Al Bashir, ICC-02/05-01/09242 (13 June 2015). ICC, Prosecutor v Uhuru Muigai Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber v(B)’s “Decision on Prosecution’s application for a finding of noncompliance under Article 87(7) of the Statute”, ICC-01/09-02/11-1032 (19 August 2015). ICTY, Prosecutor v Tihomir Blaškić, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, IT-95-14 (29 October 1997).

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The High Court of South Africa (Gauteng Division, Pretoria), Southern Africa Litigation Centre v Minister of Justice And Constitutional Development and Others Judgement, (27740/2015) [2015] ZAGPPHC 402 (24 June 2015). UNSC Res 1593, 31 March 2005, S/RES/1593 (2005). UNSC Res 2053, 27 June 2012, S/RES/2053 (2012). UNSC Res 2136, 30 January 2014, S/RES/2136 (2014). UNSC, SC 67th Year Report for the 6849th Meeting, 17 October 2012, S/PV.6849. UNSC, Statement by the President of the Security Council, 16 June 2008, S/PRST/2008/21. UNSC, Statement by the President of Security Council, 29 June 2010, S/PRST/2010/11.

Other Documents

ASP, Assembly Procedures Relating to Non-Cooperation, 12 December 2011, ICCASP/10/Res.5. ASP, Report of the Bureau on non-cooperation, 1 November 2012, ICC-ASP/11/29. ASP, Strengthening the International Criminal Court and the Assembly of States Parties, 21 November 2012, ICC-ASP/11/Res.8.Annex 1. ASP, Report of the Bureau on non-cooperation, 7 November 2013, ICC-ASP/12/34. ASP, Report of the Bureau on non-cooperation, 5 December 2014, ICC-ASP/13/40. ASP, Report of the Bureau on non-cooperation, ICC-ASP/13/40 (5 December 2014). ICC, Rules of Procedure and Evidence of the International Criminal Court, 3–10 September 2002, ICC-ASP/1/3 at 10 and Corr. 1, u.n. Doc. PCNICC/2000/1/Add.1 (2000). ICC, Regulations of the Court: adopted by the Judges of the Court on 26 May 2004: Fifth Plenary Session, May 2004, ICC-BD/01-01-04.

Online Materials

ASP, ‘Bureau of the Assembly of States Parties First meeting’, ICC, 24 January 2014, available at: www.icc-cpi.int/en_menus/asp/bureau/decisions/2014/Pages/Decisions-of -the-Bureau-(01).aspx (last accessed 11 August 2015). ICC-OTP, ‘Statement of the Prosecutor of the ICC, Mr Luis Moreno Ocampo, to the UN Security Council pursuant to UNSCR 1593 (2005)’, ICC, 7 June 2007, available at: www .icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20 the%20prosecutor/reports%20and%20statements/statement/Pages/statement%20of%20the%20prosecutor%20of%20the%20icc%20%20mr%20%20 luis%20moreno%20ocampo%20%20to%20the%20un%20secur.aspx (last accessed 10 August 2015). ICC-OTP, ‘Sixth Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593 (2005)’, ICC, 5 December 2007, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20 of%20the%20prosecutor/reports%20and%20statements/statement/Pages/

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sixth%20report%20of%20the%20prosecutor%20of%20the%20international%20 criminal%20court_%20to%20the%20un%20se.aspx (last accessed 10 August 2015). ICC-OTP, ‘Ninth Report of the Prosecutor of the ICC to the UN Security Council Pursuant to UNSCR 1593 (2005)’, ICC, 5 June 2009, available at: www.icc-cpi.int/en_ menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/ reports%20and%20statements/statement/Pages/ninth%20report%20of%20 the%20prosecutor%20of%20the%20icc%20to%20the%20un%20security%20 council%20pursuant.aspx (last accessed 10 August 2015). ICTY Prosecutor Brammertz, ‘ASP 11 Keynote Speech: Arresting Fugitives from International Justice and Other Aspects of State Cooperation: Insights from ICTY Experience’, ICC, 16 November 2012, available at: www.icc-cpi.int/en_menus/asp/ sessions/documentation/11th%20session/Pages/ASP11-Supporting-documents .aspx (last accessed on 24 February 2015). Maope, ‘Ambassador and Permanent Representative of Lesotho to the UN: Statement on behalf of African state parties to the Rome Statute at the 13th session of the Assembly of States Parties to Rome statute of the ICC’, ICC, 8 December 2014, available at: www.icc-cpi.int/EN_Menus/asp/sessions/general%20debate/pages/ generaldebate_13th_session.aspx (last accessed 11 August 2015). Politi, ‘Chair of COJUR-ICC: Statement on behalf of the European Union and its Members States’, ICC, 10 December 2014, available at: www.icc-cpi.int/EN_Menus/asp/ sessions/general%20debate/pages/generaldebate_13th_session.aspx (last accessed 11 August 2015).

Non-Compliance and the Law and Politics of State Cooperation: Lessons from the Al Bashir and Kenyatta Cases Lorraine Smith-van Lin 1 Introduction In December 2014, the case against Kenyan President Uhuru Kenyatta before the icc collapsed.1 Describing it as a ‘dark day for international criminal justice’, icc Prosecutor Fatou Bensouda conceded that it was no longer possible for her to fully investigate and prosecute the crimes charged in the case and she withdrew the charges.2 One key reason cited by the Prosecutor was the failure by the Kenyan Government to cooperate and respond to otp requests for President Kenyatta’s financial records and other potentially evidentiary material.3 Professor and human rights scholar Michael Ignatieff described the Prosecutor’s decision as a ‘clear retreat in the fight against impunity, at least as it relates to heads of State’.4 The decision to withdraw came after 1 Charges against Kenyatta were withdrawn by the Prosecution on 5 December 2014. See icc, Prosecutor v Uhuru Muigai Kenyatta Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, ICC-01/09-02/11-983 (5 December 2014). The Trial Chamber formally terminated the proceedings against the defendant and formally discharged him from the summons to appear. See icc, Prosecutor v Uhuru Muigai Kenyatta Decision on the withdrawal of charges against Mr. Kenyatta, ICC-01/09-02/11-1005 (13 March 2015). 2 See ibid icc, Prosecutor v Uhuru Muigai Kenyatta Notice of withdrawal of the charges against Uhuru Muigai Kenyatta (2014). See also icc-otp, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta’, icc, 5 December 2014, available at: www.icc-cpi.int/en_menus/icc/ structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20 statements/statement/Pages/Adjourn-Kenyatta-05-12-2014.aspx (last accessed 4 August 2015) hereafter Statement of the Prosecutor on withdrawal. 3 Ibid icc-otp, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta’ (2014). See also icc-otp, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the status of the Government of Kenya’s cooperation with the Prosecution’s investigations in the Kenyatta case’, 5 December 2014, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/statement/Pages/Stmt-05-12-2014.aspx (last accessed 4 August 2015). 4 Ignatieff, ‘International Justice possible only when in the interest of Powerful States’, ictj Debate, 9 February 2015, available at: www.ictj.org/debate/article/justice-interests-ofpowerful-states (last accessed 4 August 2015).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_006

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Judges of the icc Trial Chamber declined the Prosecutor’s application for further adjournment and a finding of non-compliance against Kenya and referral to the asp for measures to be taken.5 Non-cooperation with ICC decisions is not peculiar to the Kenyatta case. The ICC has struggled to secure the arrest and surrender of Sudanese President Omar Al Bashir for whom an arrest warrant has been outstanding for several years.6 In March 2015, the Judges of Pre-Trial Chamber II issued a formal finding of non-compliance against the Sudanese Government for failing to arrest and surrender Al Bashir, adding to the growing list of such decisions issued against African States Parties.7 There are notable points of comparison between the Al Bashir and Kenyatta cases as well as significant points of departure. Both accused are sitting Heads of State; both are African leaders alleged to have committed egregious crimes against their own people; from a political perspective, both cases provide fodder for anti-ICC rhetoric and derogatory designations of the icc as a Western construct for oppression of African leaders. But President Al Bashir is the leader of a country which has not accepted the icc’s jurisdiction and which has made clear its intention never to arrest or surrender Al Bashir or any other Sudanese national wanted by the icc.8 Kenya on the other hand has been an icc State Party since 2005 and President Kenyatta voluntarily appeared before the Court in response to a summons to appear.9 Both cases share the dubious link of non-compliance with icc decisions. 5

6

7

8

9

icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a further adjournment, ICC-01/09-02/11-981 (3 December 2014) and icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, ICC-01/09-02/11-982 (3 December 2014). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding of Non-Compliance Against the Republic of the Sudan, ICC-02/05-01/09-227 (9 March 2015). See e.g. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-151 (26 March 2013). Abdelaziz, ‘Sudan’s President Omar al-Bashir claims victory over icc after it drops Darfur war crimes investigation’, The Independent, 17 March 2015, available at: www.independent. co.uk/news/world/africa/sudans-president-omar-albashir-claims-victory-over-icc-after -it-drops-darfur-war-crimes-investigation-9924471.html (last accessed 4 August 2015). icc, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC01/09-02/11-01 (8 March 2011).

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A finding of non-compliance is a tool of last resort by the icc to secure compliance with its weak enforcement regime, which is entirely dependent on the voluntary cooperation of State Parties and others which accept its jurisdiction.10 However, the power to make such a finding is clearly circumscribed and in certain circumstances extensive consultation with the State in question is encouraged, presenting demonstrable challenges for the Court. While a finding of non-compliance is a bold and assertive move by the Court to essentially compel the ASP and UNSC to take whatever political steps are necessary to secure compliance with its decisions, the legal texts are silent concerning what steps should be by taken these political bodies once seized with a noncompliance decision by the Judges.11 This chapter will examine these and other issues through the lens of the Kenyatta and Al Bashir cases. The chapter will not attempt to assess the evidentiary strengths or weaknesses of either of the two cases but will focus exclusively on the issue of cooperation. The author posits that the impotence of the icc to secure cooperation when the stakes are highest reveals the uneasy and often fractious relationship between law and politics at the Court. The author further contends that when law has extended itself as far as it can go, the political powers (in this case State Parties, the unsc and the asp) must do what is necessary to secure cooperation for the sake of the Court. Failure to do so will result in an international court that is largely ignored and ultimately irrelevant. 2

Case Background

A The Kenyatta Case Since 2013, Uhuru Kenyatta has been the President of the Republic of Kenya.12 Up to December 2014, when charges were dropped by the Prosecutor, Kenyatta was also an accused before the icc, charged as an indirect co-perpetrator for the crimes against humanity of murder, forcible transfer of population or deportation, rape, other inhumane acts, and 10 11 12

Art. 87(7) icc Statute sets out the Court’s power to make a finding of non-compliance. Art. 87(7) and Art. 112(2)(f) icc Statute. icc, ‘Case Information Sheet: The Prosecutor v Uhuru Muigai Kenyatta’, 13 March 2015, available at: www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/ situation%20icc%200109/related%20cases/icc01090211/Pages/icc01090111.aspx (last accessed 5 August 2015).

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persecution arising from the 2007 post-election violence in that country.13 The Situation in Kenya first came under icc scrutiny in January 2008 when the otp began receiving information concerning alleged crimes in Kenya falling within the jurisdiction of the Court.14 A preliminary examination into the developments concerning the post-election violence was opened on the 11 February 2009.15 The failure of the Kenyan Government to establish a special tribunal to investigate and prosecute perpetrators of the post-election violence – one of the key recommendations of the Commission of Inquiry on Post-Election Violence, later referred to as the Waki Commission after its chair, Judge Philip Waki – resulted in the Commission’s decision to transmit information (including a sealed envelope of the names of the most responsible suspects) to

13

14

15

The Prosecutor alleged that between November 2007 and January 2008, Kenyatta created a common plan with a criminal gang, the Mungiki, to commit criminal attacks against the non-Kikuyu population perceived as supporting the Orange Democratic Movement (odm) (mostly belonging to Luo, Luhya and Kalenjin ethnic groups) in the Kenyan areas of Nakuru and Naivasha. The attacks were aimed at keeping the pnu in power in exchange for an end to government repression and protection of the Mungiki’s interests. The attacks were also seen as reprisal for attacks carried out against alleged pnu supporters. During these attacks, the Prosecutor alleges that Mungiki and other pro-PNU youth – some transported to the Rift Valley from other parts of Kenya – killed, raped, and injured, looted and destroyed property belonging to thousands of persons. A significant number of persons were also displaced as a result of the violence. See hrw, ‘Kenya: Q&A on The icc Trial of Kenya’s Deputy President’, hrw, 1 September 2013, available at: www.hrw.org/news/2013/09/01/kenya-qa-icc-trial-kenya-s-deputy -president (last accessed 5 August 2015) and Ibid, icc, ‘Case Information Sheet: The Prosecutor v Uhuru Muigai Kenyatta’ (2015). icc, ‘Press Release: icc Prosecutor reaffirms that the situation in Kenya is monitored by his office’, icc, 11 February 2009, available at: www.icc-cpi.int/NR/rdonlyres/06455318-783E -403B-8C9F-8E2056720C15/279793/KenyaOTPpubliccommunication20090211.pdf (last accessed 5 August 2015). Ibid. The situation concerned the outbreak of violence along tribal lines in various areas in Kenya, and in particular the Rift Valley region, following turbulent general elections in December 2007 in which incumbent President Mwai Kibaki of the Party of National Unity (pnu) was declared the winner over opposition candidate Raila Odinga of the Orange Democratic Movement (odm). A mediation team led by former un Secretary-General Kofi Annan oversaw the signing of a power-sharing agreement known as the National Accord and Reconciliation Act, establishing a coalition government with Kibaki as president and Odinga as Prime Minister.

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the icc.16 With leave of the Pre-Trial Chamber, investigations were launched leading to the issuance of summonses for six accused namely: William Ruto, Henry Kosgey and Joshua Sang (Case 1)17 and Uhuru Kenyatta, Francis Muthuara and Mohammed Ali (Case 2).18 Following separate confirmation of charges hearings in both cases, only William Ruto and Joshua Sang in Case 1 and Uhuru Kenyatta and Francis Muthuara in Case 2 were committed to trial.19 The case against Francis Muthuara was subsequently withdrawn by the Prosecutor.20 (i) The Case Collapses By late 2013 there were tell-tale signs that the Prosecutor was struggling to proceed with the case against President Kenyatta. In November 2013, the Prosecutor 16

See Waki, ‘Report of the Commission of Inquiry into Post-Election Violence (the Waki Report)’, Kenya Law, 15 October 2008, available at: www.kenyalaw.org/Downloads/Reports/ Commission_of_Inquiry_into_Post_Election_Violence.pdf (last accessed 5 August 2015). A summary of the report and key findings can be found at ictj, ‘the Kenyan Commission of Enquiry into Post-Election Violence’, 1 January 2008, available at: www.ictj.org/ publication/kenyan-commission-inquiry-post-election-violence (last accessed 5 August 2015). 17 icc, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-01 (8 March 2011). 18 icc, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (2011) supra n 11. 19 See icc, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373 (23 January 2012), and icc, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC01/09-02/11-382-Red (23 January 2012): Ruto and Sang are charged with the crimes against humanity of murder, forcible transfer of population or deportation, and persecution, stemming from their alleged involvement in an attack on perceived supporters of former President Mwai Kibaki’s Party of National Unity (pnu), the party to which Kenyatta belongs. The Prosecutor alleges that perpetrators destroyed houses and businesses identified as belonging to members of Kikuyu, Kamba, and Kisii ethnic groups thought to be pnu supporters, killing over two hundred people and injuring over a thousand more and forcing hundreds of thousands to flee. The trial of both men commenced on 10 September 2013 and is ongoing. See hrw, ‘Kenya: Q&A on The icc Trial of Kenya’s Deputy President’ (2013) supra n 15. 20 icc, Prosecutor v Francis Kirimi Muthuara and Uhuru Muigai Kenyatta Prosecution notification of withdrawal of the charges against Francis Kirimi Muthaura, ICC-01/09-02/11-687 (11 March 2013).

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applied to the trial Judges for a finding of non-compliance pursuant to Art. 87(7) icc Statute against the Kenyan Government, alleging that it had failed to comply with direct otp requests since April 2012 to produce financial and other records of the accused.21 The otp contended that the records were relevant to critical issues in the case, and could shed light on the scope of the accused’s conduct, including the allegation that he financed the crimes with which he was charged.22 The Judges were asked to indefinitely postpone the case pending full cooperation from the Kenyan Government. Unsurprisingly, the Kenyan Government vehemently challenged the Prosecutor’s assertions in the application.23 The defence for Kenyatta asked the Judges to terminate the case on the basis of lack of evidence and enter a not guilty verdict against him.24 The situation became deadlocked and it was left to the Judges to determine what path to take. The Judges placed the ball back in the Prosecutor’s court by granting one week within which to either decide to drop the charges or proceed to trial.25 The Prosecutor chose to drop the charges, citing three key reasons for her decision: • [S]everal people who may have provided important evidence regarding Mr. Kenyatta’s actions, have died, while others were too terrified to testify for the Prosecution; 21

icc, Prosecutor v Uhuru Muigai Kenyatta Confidential, ex parte, Office of the Prosecutor and Government of Kenya only with confidential, ex parte, Office of the Prosecutor and Government of Kenya only annexes A-M: Prosecution application for a finding of noncompliance pursuant to Article 87(7) against the Government of Kenya, ICC-01/09-02/11866 (29 November 2013); See also icc, Prosecutor v Uhuru Muigai Kenyatta Prosecution reply to the Government of Kenya’s 20 December 2013 observations, ICC-01/09-02/11-894 (3 February 2014). 22 Ibid, icc, Prosecutor v Uhuru Muigai Kenyatta Prosecution application for a finding of noncompliance pursuant to Article 87(7) against the Government of Kenya (2013) at para 1. 23 icc, Prosecutor v Uhuru Muigai Kenyatta Public redacted version of ICC-01/09-02/11-877Conf-Anx2, ICC-01/09-02/11-877-Anx2-Red (9 January 2014); See also, icc, Prosecutor v Uhuru Muigai Kenyatta Corrigendum to the Government of the Republic of Kenya’s Request for Leave Pursuant to Rule 103 to Submit Amicus Curiae Observations in Response to the Prosecutor’s ‘Notification of the Removal of a Witness from the Prosecutor’s Witness List and Application for an Adjournment of the Provisional Trial Date’, ICC01/09-02/11-895-Corr (5 February 2014). 24 icc, Prosecutor v Uhuru Muigai Kenyatta Defence Response to ‘Prosecution notice regarding the provisional trial date’ (ICC-01/09-02/11-944) and Request to Terminate the Case against Mr Kenyatta, ICC-01/09-02/11-945-Red (10 September 2014). 25 icc, Prosecutor v Uhuru Muigui Kenyatta Decision on Prosecution’s application for a further adjournment, ICC-01/09-02/11-981 (3 December 2014).

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• [K]ey witnesses who provided evidence in this case later withdrew or changed their accounts, in particular, witnesses who subsequently alleged that they had lied [to the otp] about having been personally present at crucial meetings; and • [T]he Kenyan Government’s non-compliance compromised the Prosecutor’s ability to thoroughly investigate the charges.26 As will be discussed in more detail later in this Chapter, the Judges declined to make a formal finding of non-compliance against the Kenyan Government and decided not to refer the case to the asp as requested.27 The Prosecutor applied for leave to appeal the decision on non-compliance28 and in March 2015, leave to appeal was granted.29 The Appeals Chamber subsequently reversed the decision and remitted the matter to the Trial Chamber for reconsideration due to errors in their approach to the issue.30 B The Al Bashir Case By virtue of unsc referral pursuant to unsc Resolution 1593 (2005), Omar Hassan Ahmad Al Bashir became the first sitting Head of State to be indicted by the icc. Two warrants of arrest were issued against him by the Pre-Trial Chamber: the first charging him with five counts of crimes against humanity (murder, extermination, forcible transfer, torture, rape) and two counts of war crimes (direct attacks on civilians and pillaging); the second charging him with three counts of genocide.31 26

27 28

29 30

31

icc-otp, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta’, 5 December 2014, available at: www.icc-cpi.int/en_menus/icc/press%20and%20media/ press%20releases/Pages/otp-statement-05-12-2014-2.aspx (last accessed 5 August 2015). icc, Prosecutor v Uhuru Muigui Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 5. icc, Prosecutor v Uhuru Muigui Kenyatta Prosecution’s application for leave to appeal the “Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute”, ICC-01/09-02/11-985 (9 December 2014). icc, Prosecutor v Uhuru Muigui Kenyatta Decision on Prosecution’s request for leave to appeal ICC-01/09-02/11-1004 (9 March 2015). icc, Prosecutor v Uhuru Muigui Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber V(B)’s “Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute”, ICC-01/09-02/11-1032 (19 August 2015). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Warrant of Arrest for Omar Assan Ahmad Al Bashir, ICC-02/05-01/09-1 (4 March 2009) and icc, Prosecutor v Omar Assan Ahmad Al Bashir Second warrant of arrest for Omar Assan Ahmad Al Bashir, ICC-02/05-01/09-95 (12 July 2010).

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To date, President Al Bashir has blatantly disregarded the icc arrest warrants, travelling with impunity to several African States including Ethiopia, Chad, Malawi, the drc, Nigeria, and Kenya. More recently in June 2015, in a devastating blow to the icc, South Africa – widely perceived as one of the icc’s staunchest supporters in Africa – failed to arrest and surrender President Al Bashir, who had travelled to the country to attend an au summit. The South African Government flagrantly disregarded an order from the South African High Court to arrest President Al Bashir and allowed him to leave the country via a private airport.32 On each occasion the Prosecutor has taken the proactive approach of forewarning the Trial Chamber of Al Bashir’s impending travel plans and the latter has issued decisions requesting that the relevant State arrest the accused in keeping with the order of the Court.33 Securing cooperation has however proven to be problematic and, thus far, illusory. Prosecuting sitting Heads of State is problematic enough given their influence and control over the State apparatus and their ability to secure political support within and outside of the country. However, the Al Bashir case is further complicated by three key issues: the case emanates from a unsc referral of a non-State party to the icc, stoking political tensions concerning the role 32

33

See Southern Africa Litigation Centre, ‘News Release: High Court orders arrest of icc Fugitive Omar Al-Bashir’, Southern Africa Litigation Centre, 15 June 2015, available at: www .southernafricalitigationcentre.org/2015/06/15/news-release-high-court-orders-arrest-oficc-fugitive-omar-al-bashir/(last accessed 10 September 2015); de Lange, ‘Court reserves judgment in govt’s Bashir application’, The Citizen, 14 August 2015, available at: www .citizen.co.za/479073/court-reserves-judgment-in-govts-bashir-application/(last accessed 31 August 2015). See e.g. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision Regarding the Visit of Omar Hassan Ahmad Al Bashir to the Federal Republic of Ethiopia, ICC-02/05-01/09-199 (29 April 2014); icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-195 (9 April 2014); icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Federal Republic of Nigeria Regarding Omar Al-Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-159 (5 September 2013); icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Noncompliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09151 (26 March 2013); icc, Prosecutor v Omar Hassan Ahmad Al Bashir Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-139-Corr (13 December 2011).

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and status of the unsc vis-a-vis the icc;34 divergent views regarding the application of Arts. 27 and 98 icc Statute on immunities in relation to non-State Parties to the icc Statute; and the overt and palpable antagonism of Sudan to the icc. (i) A Matter of Law: Legal Dimensions of Cooperation The Preamble to the icc Statute recognises the intrinsic value of enhancing international cooperation in order to effectively prosecute the most serious crimes.35 Part ix icc Statute sets out a comprehensive framework detailing the mandatory and voluntary forms of cooperation which the Court may request from States or organisations in order to carry out its work. The oftrepeated comparison of the icty to a ‘giant without legs’ is even more apt for the icc.36 The Court is unable to function without the individual and collective support of States to carry out its requests, enabling it to fulfil its enforcement mandate. Of these, arrest and surrender of individuals indicted by the Court are among the most important, but facilitating investigations and other forms of assistance including the collection of evidence and the protection of witnesses among others are of equal resonance. The icc cooperation regime is often described as a middle ground or compromise between the so-called horizontal and vertical cooperation models: the former being inter-State cooperation which emphasises the sovereignty of States and the latter, State-Tribunal cooperation with the creation of a sui generis system which attaches greater weight to the community interest in an international criminal prosecution.37 The classic vertical model is represented by the icty and the ictr, both of which are subsidiary organs of the unsc with powers to make decisions that are binding on States.38 The general duty to cooperate as set out in the icty and ictr Statutes is binding on all Member 34 35

36

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38

UNSC Res 1593, 31 March 2005, S/RES/1593 (2005). The preamble to the icc Statute provides that the effective prosecution of the most serious crimes of concern to the international community as a whole must be ensured by taking measures at the national level and by enhancing international cooperation. Cassese, ‘On the Current Trends Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of International Law 2 at 13. Cryer, Friman, Robinson and Wilmshurst, An Introduction to International Criminal Law and Procedure, 2nd Edition (Cambridge: cup, 2010) 509 and Kress, Prost, Schlunck and Wilkitzki, ‘International Cooperation and Judicial Assistance: Preliminary Remarks’ in Triffterer (ed), Commentary on the Rome Statute on the International Criminal Court: Observers’ Notes, Article by Article (Baden-Baden: Nomos, 1999) 1047. Ibid at 510. See also icty, Prosecutor v Tihomir Blaskic Decision on the objection of the Republic of Croatia to the issuance of subpoena duces tecum IT-95-14-PT (18 July 1997) at

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States by virtue of Chapter vii un Charter. There are no qualifications or exceptions.39 It has been said that although: [T]aken as a whole, the cooperation regime under Part 9 is certainly not as stringent as the sweeping obligation of States to cooperate with the icty and ictr[…] it is difficult to deny that it is the vertical approach that has prevailed in the course of drafting.40 Nevertheless, commentators generally agree that despite the use of mandatory language in some Part ix provisions, the icc scheme is, by contrast, far weaker than that of the ad hocs as it is fully reliant on the binding effect of the Statute between its State Parties or those States which have accepted the Court’s jurisdiction.41 For example, Art. 86 icc Statute places a general obligation on all State Parties to ‘cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court’ (emphasis added). However, specific forms of assistance, detailed in Art. 93 icc Statute, are subject to numerous qualifications, which potentially negatively impact the provision of judicial assistance. Thus, for example, a requested State may seek consultation, modification, or postponement of the cooperation sought, based on national security considerations;42 third-party interests;43 competing requests for extradition from a non-State Party44 or a competing request for co-operation,45 among others.46 Non-State Parties are not bound per se to cooperate with the Court

39 40 41

42 43 44 45 46

paras 18–23 and un Secretary General, Report of the Secretary General pursuant to paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, un Doc. S/25704 at para 28. Cryer, Friman, Robinson and Wilmshurst, An Introduction to International Criminal Law and Procedure (2010) supra n 40 at 510. Kress, Prost, Schlunck, Wilkitzki, ‘International Cooperation and Judicial Assistance: Preliminary Remarks’ (1999) supra n 40 at 1049. See e.g. Cryer Friman, Robinson and Wilmshurst, An Introduction to International Criminal Law and Procedure (2010) supra n 40 at 509; Bellelli, ‘Obligation to Cooperate and Duty to Implement’ in Bellelli (ed), International Criminal Justice: Law and Practice from the Rome Statute to its Review (Farnham: Ashgate, 2010) 223. Art. 72 icc Statute. Arts. 73 and 93(9)(b) icc Statute. Art. 90 icc Statute. Art. 93(9) icc Statute. Rastan, ‘Testing Co-operation: The International Criminal Court and National Authorities’ (2008) 21 Leiden Journal of International Law 431 at 432.

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unless directed to do so by virtue of a referral by the unsc under its Chapter vii un Charter powers or ‘urged’ to cooperate with the Court (as in the case of Resolution 1593 (2005) concerning Darfur, Sudan).47 (ii) Non-Compliance Art. 87(7) icc Statute empowers the Court to make a finding of non-compliance and to refer the matter to the asp. According to the Draft Articles of the International Law Commission on State Responsibility, a State Party’s failure to comply with a request of the Court contrary to the provisions of the icc Statute constitutes the breach of an international obligation.48 Scholars Claus Kress and Kimberly Prost opine that the approach adopted by the icty Appeals Chamber in the Blaškić subpoena judgment should apply mutatis mutandis to the icc.49 Thus, a finding would constitute the ‘formal establishment of the existence of an international wrongful act’.50 The Court has no power to go beyond the finding and subsequent referral and should not make any recommendations to the unsc concerning an appropriate course of action.51 Non-compliance in the arrest and surrender of persons charged before the icc has become the bane of the icc’s existence. The statutory requirement that the accused be present at trial unless certain exceptions apply underlines the importance of securing the arrest and surrender of outstanding icc indictees.52 To date the Court has issued 30 arrest warrants – including for Sudanese President Omar Al Bashir – but only ten persons have thus far been arrested 47 48

unsc Res 1593, 31 March 2005, S/RES/1593 (2005). International Law Commission, Draft articles on Responsibility of States for Inter­ nationally Wrongful Acts, with commentaries, November 2001, Supplement No. 10 (A/56/10), Chp.iv.E.1. 49 Kress and Prost, ‘International Cooperation and Judicial Assistance: Article 87’ in Triffterer, Commentary on the Rome Statute on the International Criminal Court: Observers’ Notes, Article by Article (Baden-Baden: Nomos, 1999) 1066; See also icty, Prosecutor v Tihomir Blaskic Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber ii of 18 July 1997, IT-95-14-T (29 October 1997) at paras 34–36. 50 Ibid, Kress and Prost, ‘International Cooperation and Judicial Assistance: Article 87’ (1999). 51 Ibid. 52 Art. 63(1) icc Statute provides that the Accused shall be present during trial. See also Sluiter, ‘The Surrender of War Criminals to the International Criminal Court’ (2003) 25 Loyola Los Angeles International and Comparative Law Review 605 at 606. Exceptions to the presence requirement include the removal of accused that are disruptive from the courtroom (Art. 63(2) icc Statute) or excusal from continuous presence for certain phases of the trial.

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and surrendered.53 The Court’s inability to secure the arrest and surrender of indicted persons has been its ‘Achilles heel’ since its existence, and the failure to arrest Al Bashir specifically has been very damaging to its reputation.54 To date the Court has issued several decisions informing the unsc and the asp about the non-cooperation of various States in failing to arrest President Al Bashir. For the present discussion a sampling will suffice. In 2011, non-compliance decisions were issued against Malawi, Chad and subsequently in 2014 against the drc who failed to arrest Al Bashir following travel to their territories.55 In each case the States defended their failure to arrest by citing the tensions between conflicting obligations to respect the immunities afforded to the accused as a sitting Head of State under customary international law per Art. 98 icc Statute; and required compliance with decisions of the au.56 Under Art. 98 icc Statute, the Court may not proceed with a request for surrender 53

54

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56

The Court has also issued 9 summonses to appear including one for Uhuru Kenyatta. All individuals summoned before the Court have voluntarily appeared as requested. See asp, Proposed Programme Budget for 2015 of the International Criminal Court, December 2014, ICC-ASP/13/10. Boulos, ‘Security Council’s Lack of Follow-up Support for its icc Referrals: A Need for a Change to Ensure Cooperation and Effectuate Arrests’, icc Forum, 12 February 2014, available at: www.iccforum.com/forum/arrest (last accessed 5 August 2015). icc, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-140-tENG (13 December 2011); icc, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC02/05-01/09 -139 (12 December 2011); icc, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court (2014) supra n 37 at para 29. For Chad’s submissions to the Court see Chad non-compliance decision. Ibid icc, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir (2011) at para 7; Malawi’s submissions at Malawi non-compliance decision. Ibid icc, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (2011) at para 8; the drc submissions are filed as public annexes to a Registry report and may be found at icc, Prosecutor v Omar Hassan Ahmad Al-Bashir Transmission to Pre-Trial Chamber ii of the observations submitted by the Democratic Republic of Congo pursuant to the “Decision requesting observations on

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which will require the requested State to act inconsistently with its obligations under international law with respect to State or diplomatic immunity of a person or property of a third State, or with its obligations under international agreements that require the consent of a sending State for surrender, unless the Court can first obtain cooperation of the third State for waiver of immunity or the consent of the sending State.57 Legal perspectives on the interpretation of Art. 98 icc Statute differ and the Pre-Trial Chamber’s approach has been inconsistent. In the first arrest warrant decision, the Pre-Trial Chamber found that Al Bashir’s status as the Head of State of a non-State Party had no effect on the Court’s exercise of jurisdiction in the case.58 The Chamber opined that the referral by the unsc implied that the investigation and prosecution of any cases arising from the Situation in Darfur, Sudan would take place in accordance with the Court’s statutory framework.59 Art. 98 icc Statute was not specifically addressed. In the Malawi and Chad decisions, the Pre-Trial Chamber determined that there was no entitlement to rely on Art. 98(1) icc Statute as a ground for refusing to comply with the cooperation requests.60 The Judges noted the ‘inherent tension between articles 27(2) and 98(1) of the Statute and the role immunity plays when the Court seeks cooperation regarding the arrest of a Head of State’61 but decided that for a number of reasons neither Malawi, Chad nor the au (curiously since the latter was not a party to the proceedings) was entitled

57 58

59 60

61

Omar Al-Bashir’s visit to the Democratic Republic of Congo” dated 3 March 2014, ICC02/05-01/09-190-AnxII-tENG (27 March 2014). Sluiter, ‘The Surrender of War Criminals to the International Criminal Court’ (2003) supra n 55 at 621. icc, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/0501/09-3 (4 March 2009) at paras 40–45. Ibid at paras 241–248. icc, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (2011) supra n 58 at para 43; icc, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir (2011) supra n 58 at para 14. icc, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (2011) supra n 58 at para 37.

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to rely on Art. 98(1) icc Statute to justify refusing to comply with the cooperation request.62 Chief among these was the finding that customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes and the increase in prosecutions of Heads of States and the significant number of ratifications to the icc Statute was additional convincing evidence of this fact.63 A differently constituted Pre-Trial Chamber in the drc non-compliance decision departed from the Malawi and Chad reasoning. They opined that Art. 98 icc Statute did not apply because the referral by the unsc implicitly waived any immunity of Heads of State under customary international law (emphasis added).64 According to the Judges, ‘any other interpretation would render the sc decision requiring that Sudan “cooperate fully” and “provide any necessary assistance to the Court” senseless’.65 Concerning the obligation to adhere to au decisions, the Pre-Trial Chamber in the Malawi and Chad decisions addressed the apparently conflicting obligations by including reference to the au in the finding of non-applicability of Art. 98 icc Statute. The issue was more directly treated with in the drc decision where the Judges ruled that by virtue of Arts. 25 and 103 un Charter, unsc resolutions had supremacy over any other international agreements: [A]ccording to article 103 of the un Charter ‘[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the […] Charter shall prevail’. Consi­ dering that the sc, acting under Chapter vii, has implicitly lifted the immunities of Omar Al Bashir by virtue of Resolution 1593 (2005), the drc cannot invoke any other decision, including that of the African Union, providing for any obligation to the contrary.66 62

Ibid at paras 36–43; icc, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir (2011) supra n 58 at paras 13–14. 63 Ibid. 64 icc, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court (2014) supra n 37 at para 29. 65 Ibid. 66 Ibid at para 31.

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The decisions have been strongly criticised by the au and international scholars. The au opined that the Malawi and Chad decisions had the effect of: (i) purporting to change customary international law in relation to immunity ratione personae; (ii) rendering Art. 98 icc Statute redundant, non-operational and meaningless; (iii) making a decision per incuriam by referring to decisions of the au while grossly ignoring the provisions of Art. 23(2) of the Constitutive Act of the au, to which Chad and Malawi are State Parties, and which obligate all au Member States ‘to comply with the decisions and policies of the Union’.67 The issue has been extensively debated by a number of international scholars who themselves have vastly divergent views. Dapo Akande opines that while the Chamber in the Malawi and Chad decisions was correct in saying that President Al Bashir was not immune from prosecution, its reasoning was flawed.68 Akande suggests that the biggest weakness in the decision is that it fails to explain why Art. 98 is included in the icc Statute at all. He contends that the Pre-Trial Chamber should instead have found that Sudan is bound by the terms of the icc Statute (including Art. 27 icc Statute on immunities) by virtue of the unsc referral and is thus in the same position as a State Party to the icc Statute. Gaeta argues that the reasoning followed by the Pre-Trial Chamber in the drc cooperation decision was based on a wrong interpretation of Art. 98(1) icc Statute.69 According to this scholar, the issue is not the existence of a legal obligation upon the third State to cooperate, but the actual cooperation that the Court must obtain from the third State to waive the immunity. De Hoogh and Knotterus describe the drc decision by the Court as a ‘remarkable change of heart’. These scholars argue that the Chamber’s reasoning on the issue of waiver 67

68

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au, ‘Press Release No. 002/2012: On the Decisions of Pre-Trial Chamber i of the International Criminal Court (icc) Pursuant to Article 87(7) of the Rome Statute on the Alleged Failure by the Republic of Chad and the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of President Omar Hassan Al Bashir of the Republic of the Sudan’, 9 January 2012, available at: www.au .int/en/content/press-release-decisions-pre-trial-chamber-i-international-criminal -court-icc-pursuant-articl (last accessed 6 August 2015). Akande, ‘icc Issues Detailed Decision on Bashir’s Immunity (… At long Last…) But Gets the Law Wrong’, Blog of the European Journal of International Law: Talk!, 5 December 2011, available at: www.ejiltalk.org/icc-issues-detailed-decision-on-bashir%E2%80%99simmunity-at-long-last-but-gets-the-law-wrong/(last accessed 6 August 2015). Gaeta, ‘Guest Post: The icc Changes Its Mind on the Immunity from Arrest of President Al Bashir, But It Is Wrong Again’, Opinio Juris, 23 April 2014, available at: www.opiniojuris .org/2014/04/23/guest-post-icc-changes-mind-immunity-arrest-president-al-bashirwrong/(last accessed 5 August 2015).

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of immunities is based on an implausible reading of unsc Resolution 1593 (2005). In their view, the Pre-Trial Chamber confuses the concept of waiver of immunity (which can only be issued by the legal person holding such immunity) and an actual removal of immunities.70 In the 2015 non-compliance decision directed at Sudan itself (issued by the same bench that ruled in the drc non-compliance decision) the Chamber determined that Sudan’s obligation to cooperate was ostensibly derived from the terms of unsc Resolution 1593 (2005), which obligated the Sudanese Government to cooperate with the Court. Thus the ‘legal effect’ of the resolution was that Part ix icc Statute was directly applicable to Sudan.71 The decision is noticeably silent on the question of immunities or Sudan’s obligation as a member of the au. Effectively the Chamber had applied the Akande reasoning, thus obviating any further need to consider the question of immunities since Sudan would also be bound by Art. 27 icc Statute. This approach appears at first blush to be the most convincing, if only from a practical point of view. Such an extensive interpretation of the unsc resolution is however problematic in the absence of more detailed wording in the resolution itself and thus requires a broad and generous interpretation of its terms. Furthermore, as Yvonne McDermott argues, the powers of the unsc under Chapter vii un Charter cannot operate to circumvent the fact that immunities for Heads of State is a principle under customary international law which cannot simply be ignored.72 The reality is that the perennial immunity vs cooperation debate in the Al Bashir case will persist for some time and consensus may never be achieved. The arrest and surrender of Al Bashir is likely to be driven purely by political considerations, despite the correctness or otherwise of the legal debates.

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de Hoogh and Knottnerus, ‘icc Issues New Decision on Al-Bashir’s Immunities – But Gets the Law Wrong… Again’, Blog of the European Journal of International Law: Talk!, 18 April 2014, available at: www.ejiltalk.org/icc-issues-new-decision-on-al-bashirs-immunities%E2%80%92-but-gets-the-law-wrong-again/(last accessed 6 August 2015). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding of Non-Compliance Against the Republic of the Sudan (2015) supra n 7 at paras 13–16. McDermott, ‘The icc Prosecutor ‘shelves’ the Darfur situation: What is the Security Council supposed to do?’, phd Studies in Human Rights, 14 December 2014, available at: www.humanrightsdoctorate.blogspot.de/2014/12/some-thoughts-on-shelving-of-darfur .html (last accessed 5 August 2015).

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C The Kenyan Non-Compliance Decision By contrast to the Al Bashir decisions, the Kenyatta case concerned noncompliance with requests for assistance in relation to investigations and prosecutions pursuant to Art. 93 icc Statute.73 As previously noted, the Kenyan Government was accused of failing to comply with otp requests to provide financial and other records of the accused and other potential evidentiary material and to enter into the consultations prescribed by the icc Statute to indicate whether there were serious impediments to fulfilling the otp’s request.74 In addition to the substantive assessment of each cooperation request, the Judges had to determine: the locus standi of the Prosecutor to request and obtain cooperation from States under Part ix icc Statute; the criteria for a finding of non-compliance pursuant to Art. 87(7) icc Statute and the relevant thresholds to be met; and whether the Prosecutor’s inability to advance the case was due to non-cooperation or poor investigations.75 On the first issue, the Kenyan Government submitted (and the defence agreed) that the Prosecutor lacked independent standing to make coopera­tion requests under the relevant section of Art. 93 icc Statute given that the provision referred to requests emanating from ‘the Court’.76 The Judges found that this reading of Art. 93 icc Statute was too restrictive in the context of the Statute as a whole.77 They reasoned that the otp’s status as one of the constituent organs of the Court, whose mandate includes investigating and prosecuting crimes within the Court’s jurisdiction, authorised that office to independently 73 74

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icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 5 at para 38. icc, Prosecutor v Uhuru Muigai Kenyatta Confidential, ex parte, Office of the Prosecutor and Government of Kenya only with confidential, ex parte, Office of the Prosecutor and Government of Kenya only annexes A-M: Prosecution application for a finding of noncompliance pursuant to Article 87(7) against the Government of Kenya (2013) supra n 23. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 5. See also icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date, ICC-01/09-02/11-908 (31 March 2014). The submissions of the Kenyan Government are filed as an annex to a Registry report transmitted to the Chamber. See icc, Prosecutor v Uhuru Muigai Kenyatta Public redacted version of ICC-01/09-02/11-877-Conf-Anx2 (2014) supra n 25 at paras 6–7. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date (2014) supra n 78 at para 24.

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transmit cooperation requests.78 In addition, Art. 93(5) icc Statute, which provides for various options to be considered by the requested State before a request for assistance pursuant to Art. 93(1) icc Statute can be denied, refers expressly to ‘the Court or the Prosecutor’.79 The Kenyan Government’s argument was also found to be somewhat disingenuous given that they had previously responded without question to cooperation requests from the same otp whose standing was now being questioned.80 The Kenyan Government also argued that a number of otp requests were ‘in violation’ of Kenyan law.81 Under Art. 88 icc Statute, State Parties have an obligation to ensure the existence of procedures under their national laws for all forms of cooperation specified in Part ix icc Statute.82 Kenya is one of the few African State Parties which has ICC implementing legislation – the International Crimes Act – which was passed into law in 2008 and took effect in 2009. This legislation obliges the Kenyan Government to give effect to cooperation requests by the icc. Having heard submissions concerning constitutional and other impediments from the Kenyan Government, the Judges 78

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Art. 34 icc Statute lists the constituent organs of the Court as (a) the Presidency; (b) an Appeals Division, a Trial Division and a Pre-trial Division; (c) The Office of the Prosecutor; and (d) the Registry. At the icc the Defence is not an organ of the Court. The Judges also considered Article 54(3)(c) icc Statute which provides that the Prosecution may ‘[s]eek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate’ which makes it clear that requests for cooperation may emanate independently from the Prosecution in furtherance of its investigative mandate. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date (2014) supra n 78 at para 26. See also Art. 93(6) icc Statute which provides that ‘[i]f a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial’. The Judges noted with concern that the Records Request had been transmitted to the Kenyan Government in April 2012, almost two years before the Kenyan Government’s written observations challenging the otp’s standing. The Kenyan Government had not initially queried the legality of the request and had instead indicated to the prosecution that the queries had been referred to relevant agencies. The Judges decided that if the Kenyan Government had had a legitimate objection, they had a duty to ‘promptly’ articulate these concerns to the Court. See icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date (2014) supra n 78 at paras 49 and 50. icc, Prosecutor v Uhuru Muigai Kenyatta Public redacted version of ICC-01/09-02/11-877Conf-Anx2 (2014) supra n 25 at paras 9 et seq. Art. 88 icc Statute.

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correctly decided that any purported deficiency in domestic legal procedures (or interpretation thereof) cannot be raised as a shield to protect a State Party from its obligation to cooperate with the Court, or to undermine any application for non-compliance under Art. 87(7) icc Statute that may result.83 (i) Non-Cooperation but No Referral The Judges found that the Chamber’s power under Art. 87(7) ICC Statute both to make a finding of non-compliance and to refer the matter to the asp or unsc was entirely discretionary. Given the sensitivities involved and the discretionary nature of such findings, the Chamber chose to adopt a decidedly cautious approach in deciding whether a finding of non-cooperation was appropriate, and whether this was sufficient to trigger a referral.84 The Judges determined that in order for the Art. 87(7) icc Statute threshold to be met, the alleged non-compliance should not be purely technical or trivial in nature, but must be as a result of a genuine and well-founded lack of capacity which materially prevents the Court from exercising its functions and powers under the Statute.85 In their view, there is a presumption of good faith on the part of States concerning their obligation to cooperate with the Court.86 The approach of the relevant State during the cooperation process, as well as the conduct of the party seeking a finding under Art. 87(7) icc Statute, may be of particular importance in the Chamber’s determination as to whether the standard of good faith cooperation has been met.87 Following their review of the case history and the parties’ submissions, the Judges made several key findings which would appear at face value to point unequivocally to a finding of non-compliance warranting a referral to the asp: (a) That there had been ‘a substantial unexplained delay on the part of the Kenyan Government in either giving effect to the cooperation request or raising any problems which may have prevented execution of the request’;88 83

icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date (2014) supra n 78 para 47. 84 icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s applications for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 5. 85 Ibid, icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s applications for a finding of non-compliance under Article 87(7) of the Statute (2014) at para 41. 86 Ibid. 87 Ibid. 88 Ibid at para 46.

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(b) That notwithstanding the Chamber’s concerns regarding the adequacy of the Prosecutor’s approach to the litigation in the case, the approach of the Kenyan Government fell ‘short of the standard of good faith cooperation’89 required under Art. 93 icc Statute and the failure reached the threshold of non-compliance required under the first part of Art. 87(7) icc Statute; (c) That the Kenyan Government’s non-compliance compromised the Prosecutor’s ability to thoroughly investigate the charges as well as the Court´s truth finding mandate.90 Despite these findings, the Judges decided that a formal finding of non-­ compliance and referral to the asp were not warranted.91 Obviously, gaps in the Prosecutor’s approach to investigations and disclosure heavily influenced the final decision.92 The Judges were concerned that the evidence fell far below the standard required for trial and even with the additional requested material it was still speculative whether that standard would be met. Overall, they were disappointed with the timeliness and thoroughness of otp investigations in the case, noting that the Prosecutor had failed to demonstrate the degree of diligence, persistence and flexibility required to ‘obtain the requested material’.93 In their view, a ‘referral for the purpose of sanction should not be seen as compensating for any deficiency on the part of the Prosecution in fully investigating and prosecuting the crimes under the jurisdiction of the Court’.94 The Judges’ criticism of the otp’s investigative capacity and capability is not new. Similar sentiments have been expressed in other cases, including the first 89 90

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Ibid at para 78. icc, Prosecutor v Uhuru Muigai Kenyatta, Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date, ICC-01/09-02/11-908, supra n 78; See also icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 5 at paras 46 and 78-79. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 5 at paras 80–90. icc, Prosecutor v Uhuru Muigai Kenyatta Corrected version of ‘Observations of the Government of the Republic of Kenya pursuant to “Order requesting observations from the Government of Kenya on the Prosecution’s leave to appeal request” dated 22 December 2014’, ICC-01/09-02/11-992-Corr (5 January 2015) at paras 13–14. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 5 at para 86. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 5 at para 84.

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trial against Thomas Lubanga Dyilo of the drc.95 Indeed the Prosecutor has acknowledged weaknesses in otp investigations and promised to revamp that section of her office.96 Nevertheless, having found that Kenya’s cooperation was below par, the Judges should have referred the matter to the asp. It is difficult to imagine cooperation described as falling far below the expected standard and which compromises investigations and the Court’s ability to fulfil its mandate not being a matter for the asp’s consideration. The distinction between what appears to have been an ‘informal’ rather than a ‘formal’ finding by the Chamber seems rather artificial and contrived. Choosing not to refer the matter could very well be viewed as rewarding non-compliance with icc decisions. Being an Art. 93 icc Statute request, the decision could well embolden States who play a cat and mouse game with cooperation requests from the otp or the Court, particularly when the stakes are high, thus undermining efforts to prosecute. The Prosecutor argued as much in its appeal against the decision. The Prosecutor contended that the Chamber erred in law by not automatically referring Kenya to the asp after making a factual finding that they had failed to cooperate. The Appeals Chamber was asked to determine the scope of the Chamber’s discretion to make a formal finding of non-cooperation and a consequential referral to the asp or unsc after determining, based on the facts, that a State had failed to cooperate. The Appeals Chamber found that the Trial Chamber had made a number of errors including incorrectly conflating the non-compliance proceedings against Kenya with the criminal proceedings against Kenyatta, failing to address whether judicial measures had been exhausted to obtain the 95

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icc, Prosecutor v Thomas Lubanga Dyilo Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842 (14 March 2012) at paras 480-482; See also Groome, ‘No Witness, No Case: An Assessment of the Conduct and Quality of icc Investigations’ (2014) 3 Penn State Journal of Law and International Affairs 1; Buisman, ‘Delegating Investigations: Lessons to be Learned from the Lubanga Judgment’ (2013) 11 North western Journal of International Human Rights 30; War Crimes Research Office, ‘Investigative Management, Strategies and Techniques of the International Criminal Court’s Office of the Prosecutor’, American University Washington College of Law, October 2012, available at: www.wcl.american.edu/ warcrimes/icc/icc_reports.cfm (last accessed 6 August 2015). icc otp, ‘Statement of Ms. Fatou Bensouda, the Prosecutor of the icc, Twelfth session of the asp’, icc, 20 November 2013, available at: www.icc-cpi.int/en_menus/asp/sessions/ documentation/12th-session/Pages/default.aspx (last accessed 6 August 2015); EvansPritchard and Jennings, ‘icc to unveil new investigation strategy’, Institute for War and Peace Reporting, 21 October 2013, available at: www.iwpr.net/global-voices/icc-unveilnew-investigation-strategy (last accessed 6 August 2015).

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Kenyan Government’s cooperation and inconsistently assessing the sufficiency of evidence and the Prosecutor’s conduct.97 These errors cumulatively prevented the Chamber from conclusively deciding on the issue of non-cooperation which ultimately impacted the decision concerning whether or not to refer the matter to the asp.98 In essence, the Trial Chamber has been given a second opportunity to decide whether the Kenyan Government should face the asp. Despite the fact that the case is no longer before the Court, the Judges’ approach to this issue will be crucial for sending a message to States who decide for reasons of politics or expedience to not cooperate with the Court thereby frustrating its efforts to investigate and prosecute international crimes. 3

A Matter of Politics

While the discourse on non-cooperation in both cases must primarily be a legal one given that the icc is a judicial institution, the political elements cannot be ignored. Misunderstanding the political context in which the Court operates and the sensitivities at stake can also grossly undermine all of its efforts at fighting impunity. The Al Bashir and Kenyatta cases are but two of the twenty-one cases before the Court, all of which are African.99 In fact, proceedings in both cases have reinforced the perception among several African governments that the Prosecutor has been selective in choosing cases, which is seen as an injustice towards the African continent.100 In fact, the indictment against President Al Bashir of Sudan is widely viewed as the starting point for the deterioration of the au-icc relationship.101 In a communiqué issued by the au Peace and Security Council in March 2009, the au contended that the icc arrest warrant 97

icc, Prosecutor v Uhuru Muigui Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber V(B)’s “Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute” (2015) supra n 32 at para 90. 98 Ibid at para 91. 99 See icc, ‘Situation and Cases’, available at: www.icc-cpi.int/en_menus/icc/situations %20and%20cases/Pages/situations%20and%20cases.aspx (last accessed 6 August 2015). 100 Murithi, ‘The African Union and the International Criminal Court: An Embattled Relationship?’ (2013) 8 The Institute for Justice and Reconciliation: Policy Brief 1 at 3. 101 Van Schaack, ‘African Heads of State before the International Criminal Court’, International Criminal Justice Today, 21 June 2015, available at: www.international-criminal-justice -today.org/arguendo/article/African-Heads-of-State-Before-the-International-Criminal -Court/(last accessed 6 August 2015).

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for Al Bashir would have a deleterious effect on ongoing peace process in Sudan.102 In their view, sequencing of prosecutions was the preferred approach, allowing peace efforts to take precedence over efforts to exact justice. The unsc’s refusal to defer the case under Art. 16 icc Statute further heightened tensions between the Court and the au, which lead to a resolution urging member States not to arrest Al Bashir.103 The subsequent commencement of the trials against Uhuru Kenyatta and William Ruto further exacerbated this conflict. On the eve of the opening of the Ruto/Sang trial in September 2013, Kenyan lawmakers supporting termination of the cases against Kenyatta and Ruto voted to withdraw from the icc Statute, to repeal domestic legislation dealing with international crimes and to end cooperation with the Court.104 The icc’s move to prosecute sitting African Heads of State has sparked the ire of the au, which has responded by issuing several resolutions urging its members not to cooperate with the icc.105 During an extraordinary session in 102 au Peace and Security Council, Statement on the icc arrest warrant against the President of the Republic of Sudan, Omar Al Bashir, 5 March 2009, PSC/PR/Comm.(clxxv); see also au, Decision on the Application by the International Criminal Court (icc) Prosecutor for the Indictment of the President of the Republic of Sudan, February 2009, Assembly/AU/ Dec.221(XII). 103 au, Decision on the Report of the Second Meeting of States Parties to the Rome Statute on the International Criminal Court (icc) DOC. Assembly/AU/8(XIV), 2 February 2010, Assembly/AU/Dec.270(XIV). 104 Kulish, ‘Kenyan Lawmakers Vote to Leave International Court’, New York Times, 5 September 2013, available at: www.nytimes.com/2013/09/06/world/africa/kenyan-lawmakers-vote-to-leave-international-court.html?_r=1 (last accessed 7 August 2015); Shiundu and Njagih, ‘Walkout as mps vote to withdraw Kenya from Rome Statute’, Standard Media, 6 September 2013, available at: www.standardmedia.co.ke/article/ 2000092851/walkout-as-mps-vote-to-withdraw-kenya-from-rome-statute (last accessed 7 August 2015). 105 See e.g. au Assembly, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Tribunal (icc) Doc. Assembly/AU/13(XIII), 3 July 2009, Assembly/AU/Dec.245(XIII) Rev.1 at para 10; au Assembly, Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/ Dec.270(XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (icc) Doc. Assembly/AU/10(XV), 27 July 2010, Assembly/AU/Dec.296(XV) at paras 5‐6; au Assembly, Decision on the Implementation of the Decisions on the International Criminal Court (icc) Doc. EX.CL/639(XVIII), 30‐31 January 2011, Assembly/ AU/Dec.334(XVI) at para 5; au Assembly, Decision on the Implementation of the Assembly Decisions on the International Criminal Court ‐ Doc. EX.CL/670(XIX), 30 June–1 July 2011, Assembly/AU/Dec.366(XVII) at para 5.

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October 2013, the au expressed concern at the politicisation and misuse of indictments against African leaders by the icc and noted that it was the first time that the simultaneous trial of the highest leaders in a country was taking place before an international court.106 Again the issue of sequencing and the question of peace versus justice were mooted. The au argued that Kenya’s role as a frontline State in the fight against terrorism at regional, continental and international levels could be jeopardised by icc proceedings as they ‘will distract and prevent them from fulfilling their constitutional responsibilities, including national and regional security affairs’.107 In November 2013, the au again penned a letter to the unsc, this time requesting a deferral of the Kenyatta and Ruto cases at the icc.108 The move collapsed after failing to gain enough support, an outcome bitterly criticised by Kenya and other African nations that accuse the Council’s majority of ‘patronizing mistrust’.109 The protect one from the pack approach of the au is not unusual. The au’s perception that it has been snubbed and disrespected by the unsc – which includes members that have not even bothered to sign the icc Statute – no doubt adds fuel to the fire. Furthermore, the perennial question of the icc’s focus on Africa presents a recurring red flag for the Court’s antagonists, though it remains largely irrelevant to any question concerning the genuineness of the Kenyatta or Al Bashir indictments. The asp sought to appease the au and diffuse some of the au-icc tensions by acceding to the au’s request for a debate on the indictment of sitting Heads of State and its consequences on peace, stability and reconciliation, during the 12th Annual ASP meeting in The Hague in 2013.110 The debate provided a forum for high level representatives of the au as well as the Attorney-General of Kenya, leading scholars Professor Charles Jalloh (nominated by the au) and 106 Extraordinary Session of the Assembly of the au, Decision on Africa’s Relationship with the International Criminal Court (icc), 12 October 2013, Ext/Assembly/AU/Dec.1 at para 4. 107 Ibid at para 6. 108 unsc, Identical letters dated 21 October 2013 from the Permanent Representative of Kenya to the United Nations addressed to the Secretary-General and the President of the Security Council, Encl 2, 22 October 2013, S/2013/624. 109 Gladstone, ‘African Call to Delay Kenyans’ Trials Fails at U.N’, New York Times, 15 November 2015, available at: www.nytimes.com/2013/11/16/world/africa/african-call-to-delay-kenyans -trials-fails-at-un.html (last accessed 7 August 2015). 110 See asp, ‘Summary of debate at asp 12th Session: Special segment as requested by the African Union: “Indictment of sitting Heads of State and Government and its consequences on peace and stability and reconciliation” Informal summary by the Moderator’, 27 November 2013, ICC-ASP/12/61.

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Professor Cherif Bassiouni, among others, to articulate their views on what was undoubtedly a burning issue.111 It is not clear what the debate actually achieved, but it seems fairly certain that it was facilitated to directly address some of the causes of the current stand-off between both entities while underscoring the important role of the icc. Despite efforts at the highest political level of the icc to engage with the au, the steady decline in au-icc relations continues. au-icc tensions and the cold shoulder from the unsc have catalysed the move towards regionalism in criminal law, more specifically, African solutions to African problems.112 In June 2014, the au adopted a protocol at its 23rd Ordinary Session summit in Malabo, Equatorial Guinea to extend the jurisdiction of the African Court of Justice and Human Rights to cover individual criminal liability for serious crimes committed in violation of international law.113 No doubt driven by developments at the icc, Art. 46(A) bis of the Protocol provides immunity to sitting Heads of State and government, and to other senior officials based on their function.114 The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights will take effect upon receiving 15 ratifications. Noted African scholar, Professor Udombana, opines that, on the one hand, regionalism appears attractive because of the obvious limitations of the icc, including the Court’s distance from situations under investigation, limited resources and a focus on those bearing the greatest responsibility.115 A regional court could arguably fill the gap between national criminal prosecutions and 111 Ibid. 112 Udombana, ‘“Can These Dry Bones Live?” In Search of a Lasting Therapy for au and icc Toxic Relationship’ (2014) 1 African Journal of International Criminal Justice 57 at 69. 113 See au, Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, 15 May 2014, STC/Legal/Min/7(I) Rev. 1, EX.CL/846(XXV) Annex 5. 114 hrw, other international organizations, and many African civil society organizations have sharply criticized the immunity provision as retrogressive and inconsistent with ensuring perpetrators are held to account. More than 140 organizations with a presence in 40 African countries issued a mass group declaration in August 2014 calling for African states to reject immunity before the African Court. See hrw, ‘Statement Regarding Immunity for Sitting Officials Before the Expanded African Court of Justice and Human Rights’, hrw, 13 November 2014, available at: www.hrw.org/news/2014/11/13/statement-regarding-immunity -sitting-officials-expanded-african-court-justice-and-hu (last accessed 7 August 2015). 115 Udombana, ‘“Can These Dry Bones Live?” In Search of a Lasting Therapy for au and icc Toxic Relationship’ (2014) supra n 115 at 69.

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the icc whilst avoiding some of the problems of ad hoc Tribunals and the shortcomings of the icc.116 However, he strongly questions the motive behind the extended jurisdiction of the African Court, calling it a ‘fallout from the face-off between the au and the West over the manner of executing international criminal justice’.117 He curtly dismisses the amended Protocol as an ‘“A minus” that does not add up(...) inserted in bad faith to spite the icc and un Security Council, rather than a real desire to promote international criminal justice in Africa’. There are also deep concerns among civil society organisations and other stakeholders that the decision to insert the immunity provisions is akin to a ‘two-tiered’ system of justice with respect to serious crimes, and reinforces the long held view in Africa that the most powerful are above the law.118 If there is to be a mending of the fractious relationship between the icc and the au there will have to be a change of approach. By its very nature, the au will focus on a political solution and emphasise peace-making and political reconciliation. The icc, on the other hand, will pursue international prosecutions as its mandate demands.119 Is there a meeting point? Snubbing the au and dismissing the concerns of African States who consider themselves duty bound to abide by au decisions is also not the answer. Some, like Botswana, have gone out on a limb and openly defied au non-cooperation decisions.120 Sustained engagement with the au is critical as well as with African State Parties who are also au members who support the Court and respect its decisions.

116 Ibid. 117 Ibid. 118 hrw, Statement Regarding Immunity for Sitting Officials Before the Expanded African Court of Justice and Human Rights (2014) supra n 117. 119 Murithi, ‘The African Union and the International Criminal Court: An Embattled Relationship?’ (2013) supra n 103 at 6. 120 See au Assembly, ‘Decision on International Jurisdiction, Justice and the International Criminal Court (icc) Doc. Assembly/AU/13(XXI)’, au, May 2013, available at: www.au. int/en/content/addis-ababa-26-may-%E2%80%93-27-may-2013-%E2%80%93-assembly-african-union-twenty-first-ordinary-session (last accessed 10 September 2015) at footnote 2; See also Kersten, ‘Backing the icc: Why Botswana stands alone among au states’, Justice in Conflict, 13 June 2013, available at: www.justiceinconflict .org/2013/06/13/backing-the-icc-why-botswana-stands-alone-amongst-au-states/ (last accessed 10 September 2015).

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What Role for the United Nations Security Council and Assembly of States Parties?

What of the unsc and the asp’s role to support the icc and enforce compliance with its decisions? More specifically, what should be expected of the unsc (in relation to Sudan and other referrals) and the asp (depending on the outcome of the Trial Chamber’s reconsideration of the non-compliance decision as directed by the Appeals Chamber in the Kenyatta case)? The asp, comprised of representatives of each State Party to the icc Statute, has responsibility for management oversight of the administration of the Court.121 Apart from general administrative functions such as determining the Court’s budget, the asp is mandated to deal with referrals from the Court concerning non-cooperation by a State Party.122 The icc Statute and other legal texts are notably silent concerning the appropriate course of action to be taken by the asp in the event of a referral for non-cooperation. During its tenth session, the asp adopted ‘Assembly procedures relating to non-cooperation’.123 The document identified two possible scenarios in which a response from the asp may be warranted and detailed possible responses which may be provided. The first scenario concerned a direct referral from the Court warranting urgent or non-urgent action by the Assembly; and the second, where there are reasons to believe that a ‘specific and serious incident of non-cooperation in respect of a request for arrest and surrender […] is about to occur or is currently ongoing and urgent action by the Assembly may help bring cooperation’.124 The referral from the Court would trigger a formal response, including but not limited to an emergency meeting of the asp Bureau, an open letter to the concerned State, inviting a representative of the State to a meeting in the event of no response to the letter and a public meeting for open dialogue during the next asp if the other measures prove ineffective.125 Scenario 2 would trigger an informal response at political and diplomatic levels. The asp has also appointed regional non-cooperation focal points.126 121 Art. 112(2)(b) icc Statute. 122 Art. 112(2)(f) and Art. 87(7) icc Statute. See also hrw, Courting History: The Landmark International Criminal Court’s First Years (New York: hrw, 2008) 211. 123 asp, Assembly procedures relating to non-cooperation, 21 December 2011, ICC-ASP/10/ Res.5, at Annex. 124 Ibid at paras 7(a) and (b). 125 Ibid at paras 14(a)-(f). 126 Ibid at para 16.

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No mention is made of sanctions in the document. One scholar, Bellelli, suggests that ‘it does not seem that the asp may impose any sanction, other than through the adoption of resolutions containing official reprimands of the conduct of the state found to be in contravention of its obligation’.127 Given its lack of ‘teeth’, the asp must utilise the powers at its disposal, namely strong diplomatic and political pressure, on non-cooperating States in order to secure the desired result. Diplomatic pressure can, however, be a long and winding process, particularly where there are no ‘carrots or sticks’ to secure compliance. By contrast, the unsc has far greater powers including the use of sanctions and other measures under its Chapter vii un Charter powers to enforce cooperation.128 This does not of course guarantee that meaningful action will be taken. To date, repeated reports by the Prosecutor on the Situation in Darfur, Sudan have yielded minimal results. The unsc has virtually ignored eight previous communications from the Court regarding non-cooperation in the Darfur situation and it is unclear whether the latest decision will have any noticeable impact.129 In apparent frustration during her last unsc briefing on Darfur, Sudan in 2014, the Prosecutor decided to hibernate investigations in Darfur until a new approach and more strategic thinking on the situation in Darfur was adopted by the unsc.130 In relation to the outstanding arrest warrants, including for President Al Bashir, the Prosecutor noted: The question of Mr. Al Bashir’s travels remains a matter before this Council as does his status as a fugitive from justice […] I remain open to constructively engage with the Council on the Darfur issue. What is needed is a dramatic shift in this Council’s approach to arresting Darfur suspects.131 127 Bellelli, ‘Obligation to Cooperate and Duty to Implement’ (2010) supra n 44 at 238. 128 Ibid. 129 ICC-OTP, ‘Statement to the United Nations Security Council on the Situation in Darfur, pursuant to unscr 1593 (2005)’, 11 December 2013, available at: www.icc-cpi.int/en_ menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/ reports%20and%20statements/statement/Pages/otp-statement-unsc-dec2013.aspx (last accessed 7 August 2014). 130 icc-otp, ‘Statement to the United Nations Security Council on the Situation in Darfur, pursuant to unscr 1593 (2005)’, icc, 12 December 2014, available at: www.icc-cpi.int/en_ menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/ reports%20and%20statements/statement/Pages/stmt-OTP-20th-report.aspx (last accessed 7 August 2015). 131 Ibid at paras 8 and 13.

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Her frustration has been evident for some time. During her 18th briefing, the Prosecutor asked ‘[w]hat is the point of the Office of the Prosecutor briefings if there is no concrete follow-up action taken by the Council?’132 Several States including Guatemala, Luxembourg, Australia and the uk among others reiterated the Prosecutor’s call for more support from the unsc for the Court.133 Suggestions included listing individuals under an icc arrest warrant on the unsc Sanctions Committee established pursuant to unsc Resolution 1591 (2005) and responding to correspondence from the Court concerning non-­cooperation.134 Realistically, based on its history the unsc is likely to tread very cautiously. In practice, it does not have a sterling reputation for effective response in cases of non-cooperation. In the case of the icty, collective action by States including the threat to withhold financial aid proved to be more effective.135 Former icty Prosecutor Carla Del Ponte pointed out that despite a report by the icty President to the unsc under Rule 7 bis icty rpe (the corresponding provision to Art. 87(7) icc Statute) regarding Serbia and Montenegro’s consistent failure to comply with its obligations, ‘disappointingly, no measures were taken by the Council in reaction to this report’.136 Del Ponte noted that the icty otp’s experience was that non-judicial measures were more effective in securing the arrest and transfer of fugitives and the provision of documents. One of the most effective in that context was the adoption of policies by the eu and the United States imposing conditionalities requiring States to cooperate with the icty.137 Unlike the icty, the icc has few non-judicial tools at its disposal to compel cooperation. Beyond engagement with the au, the eu and other regional bodies, in addition to referral in cases of non-compliance, the Court has limited powers to act. It is thus incumbent on the asp to take concrete measures to promote support for the Court among its constituents and for individual States which are also un members and members of regional bodies to vocalise their support for the Court, and to take tangible steps to ensure cooperation. 132 unsc, Reports of the Secretary-General on the Sudan and South Sudan, 11 December 2013, S/PV.7080 at 3. 133 Ibid. 134 Ibid. 135 Cryer, Friman, Robinson and Wilmshurst, An Introduction to International Criminal Law and Procedure, 2nd Edition (2010) supra n 40 at 518. 136 Del Ponte, ‘Reflections based on the icty’s experience’ in Belleni (ed), International Criminal Justice: Law and Practice from the Rome Statute till its Review (Farnham: Ashgate, 2010) 129. 137 Ibid.

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5 Conclusion The Kenyatta and Al Bashir cases highlight the difficulties with which the icc must contend in seeking to prosecute the powerful, particularly those with political backing and clout. In the Al Bashir case, the immunities question still overshadows the cooperation debate and cannot simply be ignored. In Kenyatta, the Trial Judges missed an opportunity to test the ASP’s mettle in dealing with the issue of non-compliance, even if it may not necessarily have yielded significant results. Ultimately, the effectiveness of the Court’s cooperation regime depends on the combined will of States, international organisations and ngos, and the international community at large to collectively support the icc. While the Judges must hold the Prosecutor to account for failings in conducting timely and effective investigations, clear and unequivocal messages must be sent to States as well as political bodies such as the unsc and asp for steps to be taken to secure cooperation. If no action is taken at the political level in response to legal decisions on noncooperation issued by the Court, then the Court will become largely irrelevant.

List of References



Books and Journals

Bellelli, ‘Obligation to Cooperate and Duty to Implement’ in Bellelli (ed), International Criminal Justice: Law and Practice from the Rome Statute to its Review (Farnham: Ashgate, 2010) 223. Buisman, ‘Delegating Investigations: Lessons to be Learned from the Lubanga Judgment’ (2013) 11 North western Journal of International Human Rights 30. Cassese, ‘On the Current Trends Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of Inter­ national Law 2. Cryer, Friman, Robinson and Wilmshurst, An Introduction to International Criminal Law and Procedure, 2nd Edition (Cambridge: CUP, 2010) 509. Del Ponte, ‘Reflections based on the ICTY’s experience’ in Belleni (ed), International Criminal Justice: Law and Practice from the Rome Statute till its Review (Farnham: Ashgate, 2010) 129. Groome, ‘No Witness, No Case: An Assessment of the Conduct and Quality of ICC Investigations’ (2014) 3 Penn State Journal of Law and International Affairs 1. HRW, Courting History: The Landmark International Criminal Court’s First Years (New York: HRW, 2008).

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Kress and Prost, ‘International Cooperation and Judicial Assistance: Article 87’ in Triffterer, Commentary on the Rome Statute on the International Criminal Court: Observers’ Notes, Article by Article (Baden-Baden: Nomos, 1999) 1066. Kress, Prost, Schlunck and Wilkitzki, ‘International Cooperation and Judicial Assistance: Preliminary Remarks’ in Triffterer (ed), Commentary on the Rome Statute on the International Criminal Court: Observers’ Notes, Article by Article (BadenBaden: Nomos, 1999) 1047. Murithi, ‘The African Union and the International Criminal Court: An Embattled Relationship?’ (2013) 8 The Institute for Justice and Reconciliation: Policy Brief 1. Rastan, ‘Testing Co-operation: The International Criminal Court and National Authorities’ (2008) 21 Leiden Journal of International Law 431. Sluiter, ‘The Surrender of War Criminals to the International Criminal Court’ (2003) 25 Loyola Los Angeles International and Comparative Law Review 605. Udombana, ‘“Can These Dry Bones Live?” In Search of a Lasting Therapy for AU and ICC Toxic Relationship’ (2014) 1 African Journal of International Criminal Justice 57.

Legal Cases and United Nations Documents

AU, Decision on the Application by the International Criminal Court (ICC) Prosecutor for the Indictment of the President of the Republic of Sudan, February 2009, Assembly/AU/Dec.221(XII). AU Assembly, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Tribunal (ICC) Doc. Assembly/AU/13(XIII), 3 July 2009, Assembly/AU/Dec.245(XIII) Rev.1. AU, Decision on the Report of the Second Meeting of States Parties to the Rome Statute on the International Criminal Court (ICC) DOC. Assembly/AU/8(XIV), 2 February 2010, Assembly/AU/Dec.270(XIV). AU Assembly, Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/Dec.270(XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC) Doc. Assembly/AU/10(XV), 27 July 2010, Assembly/AU/Dec.296(XV). AU Assembly, Decision on the Implementation of the Decisions on the International Criminal Court (ICC) Doc. EX.CL/639(XVIII), 30–31 January 2011, Assembly/AU/ Dec.334(XVI). AU Assembly, Decision on the Implementation of the Assembly Decisions on the International Criminal Court ‐ Doc. EX.CL/670(XIX), 30 June ‐ 1 July 2011, Assembly/ AU/Dec.366(XVII). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Warrant of Arrest for Omar Assan Ahmad Al Bashir, ICC-02/05-01/09-1 (4 March 2009).

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ICC, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC02/05-01/09-3 (4 March 2009). ICC, Prosecutor v Omar Assan Ahmad Al Bashir Second warrant of arrest for Omar Assan Ahmad Al Bashir, ICC-02/05-01/09-95 (12 July 2010). ICC, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-01 (8 March 2011). ICC, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-01 (8 March 2011). ICC, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09 -139 (12 December 2011). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-139-Corr (13 December 2011). ICC, Prosecutor v Omar Hassan Ahmad Al-Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-140-tENG (13 December 2011). ICC, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red (23 January 2012). ICC, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373 (23 January 2012). ICC, Prosecutor v Thomas Lubanga Dyilo Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842 (14 March 2012). ICC, Prosecutor v Francis Kirimi Muthuara and Uhuru Muigai Kenyatta Prosecution notification of withdrawal of the charges against Francis Kirimi Muthaura, ICC01/09-02/11-687 (11 March 2013). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding

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the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-151 (26 March 2013). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-151 (26 March 2013). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Federal Republic of Nigeria Regarding Omar Al-Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-159 (5 September 2013). ICC, Prosecutor v Uhuru Muigai Kenyatta Confidential, ex parte, Office of the Prosecutor and Government of Kenya only with confidential, ex parte, Office of the Prosecutor and Government of Kenya only annexes A-M: Prosecution application for a finding of non-compliance pursuant to Article 87(7) against the Government of Kenya, ICC-01/09-02/11-866 (29 November 2013). ICC, Prosecutor v Uhuru Muigai Kenyatta Public redacted version of ICC-01/09-02/11877-Conf-Anx2, ICC-01/09-02/11-877-Anx2-Red (9 January 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Prosecution reply to the Government of Kenya’s 20 December 2013 observations, ICC-01/09-02/11-894 (3 February 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Corrigendum to the Government of the Republic of Kenya’s Request for Leave Pursuant to Rule 103 to Submit Amicus Curiae Observations in Response to the Prosecutor’s ‘Notification of the Removal of a Witness from the Prosecutor’s Witness List and Application for an Adjournment of the Provisional Trial Date’, ICC-01/09-02/11-895-Corr (5 February 2014). ICC, Prosecutor v Omar Hassan Ahmad Al-Bashir Transmission to Pre-Trial Chamber II of the observations submitted by the Democratic Republic of Congo pursuant to the “Decision requesting observations on Omar Al-Bashir’s visit to the Democratic Republic of Congo” dated 3 March 2014, ICC-02/05-01/09-190-AnxII-tENG (27 March 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date, ICC-01/09-02/11-908 (31 March 2014). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-195 (9 April 2014). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision Regarding the Visit of Omar Hassan Ahmad Al Bashir to the Federal Republic of Ethiopia, ICC-02/05-01/09-199 (29 April 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Defence Response to ‘Prosecution notice regarding the provisional trial date’ (ICC-01/09-02/11-944) and Request to Terminate the Case against Mr Kenyatta, ICC-01/09-02/11-945-Red (10 September 2014).

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ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a further adjournment, ICC-01/09-02/11-981 (3 December 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, ICC-01/09-02/11-982 (3 December 2014). ICC, Prosecutor v Uhuru Muigui Kenyatta Decision on Prosecution’s application for a further adjournment, ICC-01/09-02/11-981 (3 December 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, ICC-O1/09-02/11-983 (5 December 2014). ICC, Prosecutor v Uhuru Muigui Kenyatta Prosecution’s application for leave to appeal the “Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute”, ICC-01/09-02/11-985 (9 December 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Corrected version of ‘Observations of the Government of the Republic of Kenya pursuant to “Order requesting observations from the Government of Kenya on the Prosecution’s leave to appeal request” dated 22 December 2014’, ICC-01/09-02/11-992-Corr (5 January 2015). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding of Non-Compliance Against the Republic of the Sudan, ICC-02/0501/09-227 (9 March 2015). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on the Prosecution’s request for leave to appeal, ICC-01/09-02/11-1004 (9 March 2015). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on the withdrawal of charges against Mr. Kenyatta, ICC-01/09-02/11-1005 (13 March 2015). ICC, Prosecutor v Uhuru Muigui Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber V(B)’s “Decision on Prosecution’s application for a finding of noncompliance under Article 87(7) of the Statute”, ICC-01/09-02/11-1032 (19 August 2015). ICTY, Prosecutor v Tihomir Blaskic Decision on the objection of the Republic of Croatia to the issuance of subpoena duces tecum IT-95-14-PT (18 July 1997). ICTY, Prosecutor v Tihomir Blaskic Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, IT-95-14-T (29 October 1997). UN Secretary General, Report of the Secretary General pursuant to paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, UN Doc. S/25704. UNSC Res 1593, 31 March 2005, S/RES/1593 (2005). UNSC Res 1593, 31 March 2005, S/RES/1593 (2005). UNSC, Identical letters dated 21 October 2013 from the Permanent Representative of Kenya to the United Nations addressed to the Secretary-General and the President of the Security Council, Encl 2, 22 October 2013, S/2013/624.

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UNSC, Reports of the Secretary-General on the Sudan and South Sudan, 11 December 2013, S/PV.7080.

Other Documents

ASP, Assembly procedures relating to non-cooperation, 21 December 2011, ICC-ASP/10/ Res.5, at Annex. ASP, ‘Summary of debate at ASP 12th Session: Special segment as requested by the African Union: “Indictment of sitting Heads of State and Government and its consequences on peace and stability and reconciliation” Informal summary by the Moderator’, 27 November 2013, ICC-ASP/12/61. ASP, Proposed Programme Budget for 2015 of the International Criminal Court, December 2014, ICC-ASP/13/10. AU Peace and Security Council, Statement on the ICC arrest warrant against the President of the Republic of Sudan, Omar Al Bashir, 5 March 2009, PSC/PR/Comm. (CLXXV). AU, Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, 15 May 2014, STC/Legal/Min/7(I) Rev. 1, EX. CL/846(XXV) Annex 5. Extraordinary Session of the Assembly of the AU, Decision on Africa’s Relationship with the International Criminal Court (ICC), 12 October 2013, Ext/Assembly/AU/ Dec.1. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1.

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Ignatieff, ‘International Justice possible only when in the interest of Powerful States’, ICTJ Debate, 9 February 2015, available at: www.ictj.org/debate/article/justice-interests -of-powerful-states (last accessed 4 August 2015). Kay, ‘The Prosecution of Uhuru Kenyatta at the International Criminal Court’, International Criminal Law Bureau, 21 January 2015, available at: www .internationallawbureau.com/index.php/kenyatta-defence-publishes-report-the -prosecution-of-uhuru-kenyatta-at-the-international-criminal-court/(last accessed 6 August 2015). Kersten, ‘Backing the ICC: Why Botswana stands alone among AU states’, Justice in Conflict, 13 June 2013, available at: www.justiceinconflict.org/2013/06/13/backingthe-icc-why-botswana-stands-alone-amongst-au-states/(last accessed 10 September 2015). Kulish, ‘Kenyan Lawmakers Vote to Leave International Court’, New York Times, 5 September 2013, available at: www.nytimes.com/2013/09/06/world/africa/kenyanlawmakers-vote-to-leave-international-court.html?_r=1 (last accessed 7 August 2015). McDermott, ‘The ICC Prosecutor ‘shelves’ the Darfur situation: What is the Security Council supposed to do?’, PHD Studies in Human Rights, 14 December 2014, available at: www.humanrightsdoctorate.blogspot.de/2014/12/some-thoughts-on-shelvingof-darfur.html (last accessed 5 August 2015). Shiundu and Njagih, ‘Walkout as MPs vote to withdraw Kenya from Rome Statute’, Standard Media, 6 September 2013, available at: www.standardmedia.co.ke/ article/2000092851/walkout-as-mps-vote-to-withdraw-kenya-from-rome-statute (last accessed 7 August 2015). Southern Africa Litigation Centre, ‘News Release: High Court orders arrest of ICC Fugitive Omar Al-Bashir’, Southern Africa Litigation Centre, 15 June 2015, available at: www.southernafricalitigationcentre.org/2015/06/15/news-release-high-courtorders-arrest-of-icc-fugitive-omar-al-bashir/(last accessed 10 September 2015). Van Schaack, ‘African Heads of State before the International Criminal Court’, International Criminal Justice Today, 21 June 2015, available at: www.internationalcriminal-justice-today.org/arguendo/article/African-Heads-of-State-Before-theInternational-Criminal-Court/(last accessed 6 August 2015). Waki, ‘Report of the Commission of Inquiry into Post-Election Violence (the Waki Report)’, Kenya Law, 15 October 2008, available at: www.kenyalaw.org/Downloads/ Reports/Commission_of_Inquiry_into_Post_Election_Violence.pdf (last accessed 5 August 2015). War Crimes Research Office, ‘Investigative Management, Strategies and Techniques of the International Criminal Court’s Office of the Prosecutor’, American University Washington College of Law, October 2012, available at: www.wcl.american.edu/ warcrimes/icc/icc_reports.cfm (last accessed 6 August 2015).

Practical Cooperation Challenges Faced by the Registry of the International Criminal Court Anne-Aurore Bertrand and Natacha Schauder* 1 Introduction In order to effectively discharge its mandate as foreseen in the icc Statute, the Registry of the icc needs the cooperation and judicial assistance of a multiplicity of actors and, first and foremost, from its 124 State Parties. The purpose of this chapter is to examine some of the most challenging areas of activity requiring State cooperation that fall within the Registry’s mandate from a practical point of view. The chapter will start with a preliminary section outlining the important role played by States in the context of the Court’s proceedings, as contributing actors in the shaping of the Court’s jurisprudence. This part will also give an idea of the backdrop against which the Court and therefore the Registry work (Section 2). The second part of this chapter will focus on the Registry’s mandate in the area of cooperation and judicial assistance. As the organ of the Court responsible for the non-judicial aspects of the administration and servicing of the Court, the Registry is composed of experts in different areas of activity who are able to handle diverse technical questions to support all participants to the proceedings. The Registry’s mandate also includes the provision of support to the judicial mandate of the icc Chambers, as the Registry acts as an ‘executing arm’ of the Judges when it comes to ensuring the implementation of their orders and decisions by States and other external actors. This chapter will further describe the practical challenges met by the Registry in the implementation of its mandate in light of the developing icc case law and review a number of compelling examples that could shed some light on the role played by States in the development of a certain form of ‘cooperation practice’, either through their legal briefs, their replies to requests for assistance, or their level of willingness to assist the Court beyond the obligations laid down in Part ix icc Statute by entering into cooperation agreements. It will focus in particular on three different areas falling under the mandate of * The views expressed herein are those of the authors alone and do not reflect the views of the International Criminal Court. They are both grateful for the assistance provided by Ms Tosca Ten Kroode and Ms Branwen Francis.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_007

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the Registry: the identification and freezing of assets (Section 3), the assistance to the defence (Section 4) and the protection of witnesses (Section 5). 2

General Observations on the Role Played by States in the Court’s Proceedings

The Court has jurisdiction over natural persons pursuant to Art. 25 icc Statute. States, therefore, should have a limited role in the proceedings. As such, no State representative appears physically in the courtroom, unless specifically authorised or invited to do so by the relevant Chamber. Thus, in the Ruto and Sang case, for example, the Single Judge decided that the Government of Kenya had no procedural standing to send a representative at the Confirmation of Charges hearing.1 However, and as a result of the principle of complementarity,2 which is one of the framing principles of the icc Statute system, State Parties have an important role to play in the proceedings, especially during their early stages. The icc Statute indeed gives them an opportunity to argue both the competence of the Court and the admissibility of a case. A Application for Review Art. 53(3)(a) icc Statute foresees a role for the State that referred a situation to the Court enabling it to challenge the decision of the Prosecutor not to initiate an investigation before the competent Pre-Trial Chamber. This possibility was used for the first time on 29 January 2015 by the legal representatives of the Union of the Comoros who argued that the Prosecutor did not apply the proper legal standards when deciding that there was no reasonable basis to believe that the crimes were of sufficient gravity to proceed with an investigation.3 On 16 July 2015, the Pre-Trial Chamber issued a decision finding that the Prosecutor had erred in fact and in law in determining there was no reasonable basis to believe 1 icc, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the “Request by the Government of Kenya in respect of the Confirmation of Charges Proceedings”, icc-01/09-01/11-313 (1 September 2011). 2 Art. 1 icc Statute reads that the Court ‘shall be complementary to national criminal jurisdiction’. 3 icc, Situation on Registered Vessels of the Union of the Comoros, The Hellenic Repulic of Greece and the Kingdom of Cambodia Publicly Redacted Version with Confidential Annexes 1, 2, and 3: Application for Review pursuant to Article 53(3)(a) of the Prosecutor’s Decision of 6 November 2014 not to initiate an investigation in the Situation, icc-01/13-3-Red (29 January 2015).

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the crimes were of sufficient gravity to proceed.4 The Chamber thus requested the Prosecutor to reconsider her decision not to initiate an investigation. The otp subsequently filed a Notice to Appeal on 27 July 2015, and a decision by the Appeals Chamber is still pending at the time of writing this chapter.5 B Challenge of Admissibility These challenges are not uncommon and have been raised in the Situations in Kenya, Libya and Côte d’Ivoire.6 Art. 19 icc Statute clearly states that either a State that has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted the said case, or a State from which acceptance of jurisdiction is required under Art. 12 icc Statute can challenge the admissibility of a case or the jurisdiction of the Court. One edifying feature in this area is the possibility for States to appeal the decision of a Chamber on admissibility.7 During these proceedings, States have used the possibility offered by Art. 95 icc Statute to postpone the execution of a request for surrender of an 4 icc, Situation on Registered Vessels of the Union of the Comoros, The Hellenic Republic of Greece and the Kingdom of Cambodia Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, icc-01/13-34 (16 July 2015); see also the partly dissenting opinion by Judge Péter Kovács: icc, Situation on Registered Vessels of the Union of the Comoros, The Hellenic Republic of Greece and the Kingdom of Cambodia Annex to the Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, icc-01/13-34-Anx (16 July 2015). 5 icc, Situation on Registered Vessels of the Union of the Comoros, The Hellenic Republic of Greece and the Kingdom of Cambodia Notice of Appeal of “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”, icc-01/13-35 (27 July 2015). 6 See the Situation in Kenya: icc, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang and Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Application on behalf of the Government of the Republic of Kenya pursuant to Article 19 of the icc statute, icc-01/09-02/11-26 and icc-01/09-01/11-19 (31 March 2011); the Situation in Libya, where both applications were filed on a confidential basis; and the Situation in Côte d’Ivoire, the Simone Gbagbo case: icc, Prosecutor v Simone Gbagbo “Requête de la République de Côte d’Ivoire sur la recevabilité de l’affaire Le Procureur c. Simone Gbagbo, et demande de sursis à exécution en vertu des articles 17, 19 et 95 du Statut de Rome”, icc-02/11-01/12-11-Red (1 October 2013). This list does not include the challenges by the defendants themselves. 7 E.g. icc, Prosecutor v Simone Gbagbo Appeal of the Republic of Cote d’Ivoire against Pre-Trial Chamber i’s Decision on Cote d’Ivoire’s Challenge to the Admissibility of the Case Against Simone Gbagbo, icc-02/11-01-12-48-tENG (17 December 2014).

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individual subject to the arrest warrant.8 However, it is to be noted that the suspension of the obligation to cooperate is not automatically maintained during the period when the Appeals Chamber examines the appeal, and States therefore have to make a separate request to seek such suspension. In the Saif Al-Islam Gaddafi case for example, the Appeals Chamber refused to grant the request for suspensive effect of the appeal, therefore maintaining the obligation for Libya to enforce the request for arrest and surrender against Saif Al-Islam Gaddafi dated 4 July 2011.9 States can also play an important role at subsequent stages of the proceedings either via the submission of amicus curiae briefs or when the Chamber is seized of cooperation matters. C Submission of Amicus Curiae Briefs Another way foreseen by the icc Statute for States to participate in the proceedings is the submission of amicus curiae briefs, as envisaged in Rule 103 icc rpe. Thus, in the Ruto and Sang case, five States, including two non-State Parties, filed requests for leave to submit amicus curiae observations with regard to the interpretation of Art. 63 icc Statute, which deals with the presence of the accused at trial. The Chamber agreed to consider their views and subsequently ruled that the accused could be excused at certain moments of his trial. The Appeals Chamber confirmed this finding.10 During the 12th session of the asp, amendments to Rule 134 icc rpe (addition of bis, ter, quater) were adopted to allow an accused, subject to a summons to appear, to appear via video-link, and to be excused during part of his or her trial under certain conditions or in case of exceptional duties. In this instance, States participated both at the judicial and at the legislative levels11 in amending the operating rules of the icc proceedings. D Review of the Cooperation Provided by States Finally, States are granted an important voice in the proceedings when the Chambers look at the implementation of requests for cooperation. While 8

9 10

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icc, Prosecutor v Simone Gbagbo Decision on the conduct of the proceedings following Cote d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo, icc02/11-01/12-15 (15 November 2013). icc, Prosecution v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Decision on the request for suspensive effect and related issues, icc-01/11-01/11-387 (18 July 2013). icc, Prosecutor v William Samoei Ruto and Joshua Arap Sang Decision on the requests for leave to submit observations under rule 103 of the Rules of Procedure and Evidence, icc01/09-01/11-942 (13 September 2013). See ibid, Dissenting Opinion of Judge Anita Ušacka (2013) icc-01/09-01/11-942-Anx.

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reviewing the cooperation of Chad, for instance, in the Situation in Darfur, Sudan, Pre-Trial Chamber ii indicated that the State was ‘considered to be a party for the limited purpose of these proceedings’12 and was therefore held by the procedural requirements established by the RoC. In a similar vein, the Chambers developed standards that need to be respected when transmitting requests for assistance pursuant to Part ix icc Statute. In the Banda case, the defence was seeking a decision by the Chamber ordering Sudan to cooperate13 in order to give them access to the territory of Sudan to conduct activities in accordance with Art. 57(3)(b) icc Statute and Rule 116 icc rpe. The Chamber indicated that requests for assistance must meet the criteria of specificity, relevance and necessity. This benchmark against which to assess the cooperation of States is useful for States themselves, as it awards them with predictability and clarity as to what they should expect from the Court. The Chambers also indicated that this assessment should be done with a presumption of good faith in favour of the requested State.14 The Chambers also recalled that the State is to cooperate within a reasonable time frame – that is, therefore, not immediately, but is to consult the Chamber without delay in case of difficulties in accordance with Arts. 93(3) or 97 icc Statute.15 (i) Assessment of Non-compliance Before making a finding of non-compliance, the Chambers need to hear the requested State in accordance with Art. 87(7) icc Statute and Regulation 109(3) RoC. The development of case law in this matter is quite useful for States to know what the Court expects from them. In practice, the Chambers have issued most decisions and most findings of non-cooperation with respect to the 12

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icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, icc-02/05-01/09-151 (27 March 2013) at para 19. icc, Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus Decision on “Defence Application pursuant to articles 57(3) (b) and 64 (6)(a) of the Statute for an order for the preparation and transmission of a cooperation request to the Government of the Republic of the Sudan”, icc-02/05-03/09-169 (1 July 2011). icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, icc-01/09-02/11-982 (3 December 2014) at para 40. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on the implementation of the request to freeze assets, icc-01/09-02/11-931 (8 July 2104); For a similar obligation with regard to Art. 96 icc Statute see Pereira de Sousa and Turlan, ‘Article 96’, in Brant and Steiner (eds), O Tribunal Penal Internacional: Comentários ao Estatuto de Roma (Belo Horizonte: Del Rey, 2015).

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obligation to arrest and surrender individuals against whom arrest warrants have been issued. The Chambers have provided useful guidance with regard to the interpretation of Art. 98(1) icc Statute concerning the apparent contradiction raised by the requested State Parties between the obligations to comply with a request from the Court on one hand, and to respect other international obligations with a third State (non-State Party to the icc Statute) in the context of the arrest of President Al Bashir of Sudan on the other hand.16 On the basis of this case law, the Chamber rejected the legal arguments put forward by Chad17 and the drc18 when receiving the visit of President Al Bashir. It also rejected the factual reasons put forward by the drc regarding the lack of time available to proceed with the arrest but accepted the arguments presented by Nigeria that put forward factual arguments to explain that the Nigerian authorities were not aware of President Al Bashir’s presence on their territory and that they had no time to arrest him in view of his early departure.19 In its case law, the Chambers differentiated between simply informing the unsc20 of the issue, and making an actual finding of non-compliance.21 16

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icc, Prosecutor v Omar Hassan Ahmad Al Bashir Corrigendum to the Decision pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, icc-02/05-01/09-139-Corr (13 December 2011) and icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of Congo Regarding Omar Al-Bashir’s Arrest and Surrender to the Court, icc-02/05-01/09-195 (9 April 2014). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision pursuant to Article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, icc-02/05-01/09-140-tENG (13 December 2011); icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court regarding the Arrest and Surrender of Omar Hassan Ahmad Al Bashir icc-02/05-01/09-151 (26 March 2013). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of Congo Regarding Omar Al-Bashir’s Arrest and Surrender to the Court (2014) supra n 16. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Federal Republic of Nigeria regarding Omar Al Bashir’s Arrest and Surrender to the Court, icc-02/05-01/09-159 (5 September 2013). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al Bashir’s presence in the territory of the Republic of Kenya, icc-02/05-01/09-107 (27 August 2010). See as examples of Decisions informing the unsc, icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of

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In the context of the Kenyatta case,22 the Chamber scrutinised other types of obligations to cooperate falling under Art. 93 icc Statute. The Government of Kenya, represented by its Attorney General, submitted 17 briefs (both on procedural and substantive issues) and appeared before the Chamber on 13 February, 9 July and 7 October 2014 in order to reply to the questions of the Chamber regarding the request of the Prosecutor to issue a finding of non-cooperation concerning the inaccessibility of certain financial information. In addition to the legal and factual arguments presented by the requested States, the Chambers have considered other factors such as the status of the case or the situation of the State. In the above mentioned Kenyatta case for example, the Chamber examined the delay in replying to the request for the identification, tracing, freezing and seizure of assets sent to Kenya and noted that Kenya should have raised the difficulties met in implementing the request earlier. However, the Chamber decided that, in view of the submission by the Prosecutor concerning the lack of evidence to secure a conviction at trial, the fact that the information provided may or may not yield evidence relevant to the case, and in light of Art. 57(3)(e) of the icc Statute making specific reference to the strength of the evidence and the rights of the parties concerned, the Chamber decided to suspend the said request for cooperation until further notice.23 In the same spirit, Pre-Trial Chamber i in the Al-Senussi case issued a Decision24 taking note of the decision on non-admissibility by the Appeals the States Parties to the Rome Statute about Omar Al Bashir’s recent visit to Djibouti, icc-02/05-01/09-129 (12 May 2011) and icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al Bashir’s recent visit to the Republic of Chad, icc-02/05-01/09-109 (27 August 2010) and for a Decision making a finding on noncompliance; icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding on Non-Compliance Against the Republic of the Sudan, icc-02/0501/09-227 (9 March 2015). 22 See icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 14. 23 See ibid, Please note that on 5 December 2014, the otp withdrew charges against Kenyatta, citing insufficient evidence to prove criminal responsibility beyond a reasonable doubt, and thus terminating the case. See icc, Prosecutor v Uhuru Muigai Kenyatta Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, icc-01/09-02/11-983 (5 December 2015). 24 icc, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Decision following the declaration of inadmissibility of the case against Abdullah Al-Senussi before the Court, icc-01/11-01/11-567 (7 August 2014).

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Chamber ordering the Registrar to withdraw all outstanding requests for cooperation. Among these requests was a request from the Chamber to Libya to enable the defence to visit their client detained in a prison in Tripoli.25 As a result of the decision on the non-admissibility of the case, Libya was automatically ‘off the hook’ concerning the implementation of the said request for cooperation. The danger in affording weight to the internal factors of the case is to give a signal to States that there may be merit in waiting before executing a request for cooperation, as the circumstances of the case may exonerate them from their obligations. A different approach was however set by the same Chamber in the Saif Al-Islam Gaddafi case,26 with respect to the consideration of external actors when it made a determination of non-compliance by Libya regarding two requests for cooperation, namely the request for arrest and surrender of Saif Al-Islam Gaddafi and the request to return the originals of the documents seized in Zintan from his former counsel during a privileged visit that took place in June 2012, and to destroy any copies thereof. Despite noting the efforts conducted by Libya and the very difficult political and security situation at stake, the Chamber indicated that a finding of noncooperation only requires an objective failure to comply.27 (ii)

Referral to the Assembly of States Parties and the United Nations Security Council In the Kenyatta case,28 the Chamber issued on 3 December 2014 a new type of decision by recognising that the ‘approach of the Kenyan Government […] f[ell] short of the standard of good faith cooperation’ and that ‘this failure ha[d] reached the threshold of non-compliance required under the first part of Article 87(7) of the Statute’.29

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27 28 29

See two decisions by Pre-Trial Chamber i respectively, icc, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Decision on the “Urgent Application on behalf of Abdullah Al-Senussi for Pre-Trial Chamber to order the Libyan Authorities to comply with their obligations and the orders of the icc”, icc-01/11-01/11-269 (6 February 2013) and icc, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Decision concerning a privileged visit to Abdullah Al Senussi by his Defense, icc-01/11-01/11-456 (26 September 2013). icc, Prosecutor v Saif Al-Islam Gaddafi Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council, icc-01/11-01/11-577 (10 December 2014). Ibid at para 24. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 14. Ibid at para 78.

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Despite finding that this lack of cooperation prevented the Court from exercising its functions and powers, the Chamber did not transmit the matter to the asp in light of two additional determinations. First, whether the transmission would promote the functions of the Court and assist a fair trial including the protection of the rights of the accused, the integrity of the proceedings or the wider interests of justice and, second, whether the breach of international obligations was of a serious nature.30 The Chamber granted leave to appeal to the otp on 9 December 2014.31 The Appeals Chamber delivered its judgment on 19 August 2015, reversing the decision and remanding it for the Trial Chamber to determine, in light of the relevant factors indicated by the Appeals Chamber in its decision, whether Kenya has failed to comply with a cooperation request that has prevented the Court from exercising its functions and powers under the Statute and, if so, to determine whether it is appropriate to refer Kenya’s con-compliance to the asp.32 At paragraphs 54 and 55, the Appeals Chamber confirmed that the Trial Chamber did not err in law by not automatically referring Kenya to the asp once it had made a factual determination of a failure to cooperation, as this decision falls within the scope of a Chamber’s discretion under Art. 87(7) ICC Statute. Moreover, the Appeals Chamber outlined factors and considerations that may be relevant to a determination of whether to refer Kenya’s non-compliance to the asp: […] Since the ultimate goal is to obtain cooperation, a Chamber has discretion to consider all factors that may be relevant in the circumstances of the case, including whether external actors could indeed provide concrete assistance to obtain the cooperation requested taking into account the form and content of the cooperation; whether the referral would provide an incentive for cooperation by the requested State; whether it would instead be beneficial to engage in further consultations with the requested State; and whether more effective external actions may be taken by actors other than the asp or the unsc, such as third States or international or regional organisations.33

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Ibid at para 80. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on the Prosecution’s request for leave to appeal, icc-01/09-02/11-1004 (9 March 2015). icc, Prosecutor v Uhuru Muigai Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber V(B)’s “Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute”, icc-01/09-02/11-1032 (19 August 2015). Ibid at para 53.

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This confirmation of the scope of a Chamber’s discretion under Art. 87(7) icc Statute illustrates the margin of appreciation that enables the Chamber to make a discretionary and tailored assessment of the factual circumstances presented by the requested State. On the other hand, this margin will arguably make it more difficult for States to know in advance what would trigger a referral to the asp or the unsc and adapt their actions accordingly. (iii) No Standing for Appeal In the context of cooperation proceedings, the State concerned can either submit requests for leave to submit amicus curiae observations or be invited to submit observations by the Chamber.34 In the Ruto and Sang case, the Chamber ordered the Government of Kenya to facilitate the representation of witnesses it had summoned via video-link from a courtroom in Kenya. Kenya seized the opportunity of the leave to appeal lodged by the defence to submit an application for amicus curiae to the Appeals Chamber, which was granted.35 Kenya did not attempt to ask for leave to appeal the decision. States’ apparent lack of standing to appeal a decision on cooperation is a clear limitation to their role as participants in cooperation proceedings. It must be noted however that no State has yet attempted to appeal such decisions on cooperation36 and that no Chamber has had an opportunity to rule on this question. 3

The Identification, Tracing, Freezing and Seizure of Assets

A A Complex System Art. 93(1)(k) icc Statute foresees that the Court can request the compulsory cooperation of States with regard to the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties. 34 35

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See e.g. icc, Prosecutor v Uhuru Muigai Kenyatta Decision requesting observations from the Government of Kenya, icc-01/09-02/11-870 (9 December 2013). icc, Prosecutor v William Samoei Ruto and Joshua Arap Sang Decision on the Republic of Kenya’s request for leave to make observations under rule 103 of the Rules of Procedure and Evidence, icc-01/09-01/11-1350 (10 June 2014). See e.g. on an attempt by a State to appeal other types of decisions, icc, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui Application for Leave to Appeal the Trial Chamber’s Decision icc-01/04-01/07-3003 dated 9 June 2011, icc 01/04-01/07-3020 (15 June 2011).

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All organs of the Court are involved in this process. From its side, the otp looks into the possibility of generating evidence through the analysis of financial information collected during its investigations, and can also request States to take measures aiming at disrupting criminal activities thanks to requests for asset freezing. The otp also collects information that could be transmitted to the Chamber and to the Registry for drafting and following up on the implementation of requests for the identification, freezing, tracing and seizure of proceeds, property and assets and instrumentalities of crimes. The Registry either drafts the request for cooperation on the basis of a decision of a Chamber and/or transmits and follows-up the implementation of these requests on behalf of the Chamber (first mandate of the Registry). The enforcement unit of the Presidency is also involved at a later stage with the assistance of the Registry in the context of the enforcement of fines, forfeiture orders and reparation orders in accordance with Regulations 113 and 117 RoC.37 This mandate is underpinned by two principles. The first principle is that the suspect or the accused should not be able to benefit from his or her crimes. The second principle is that the victims expect that the Court is able to secure funds for awards for reparations from non-indigent accused persons, as foreseen in the icc Statute. The Registry also conducts investigations and requests the assistance of States when assessing the indigence of a person benefiting from the legal aid of the Court in accordance with Regulation 132 Regulations of the Registry (second mandate of the Registry). This mandate is underpinned by different rationales. There is the idea that the Court is responsible for the use of the public funds entrusted to it. The legal aid budget is quite important, as it represented 2.8 million euro in 2014.38 Measures must be taken to avoid funds being paid unduly by the international community. Also, the person benefiting from legal aid would be abusing his or her right to have legal assistance without payment if he or she could in fact pay for his or her legal fees. There are few incentives in the legal provisions to encourage the suspect or accused person to assist the financial investigator of the Registry. There is no 37

38

See the role to be played by the Presidency irrespective of the indigence of the accused in the Lubanga Dyilo case; icc, Prosecutor v Thomas Lubanga Dyilo Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with Amended order for reparations (Annex A) and public annexes 1 and 2, icc-01/04-01/06-3129 (3 March 2015) at paras 103 and 104. See the 2014 legal aid budget for the Counsel for Defence, which has been reduced slightly in the 2015 budget to 2.3 million Euros due to the revised legal aid structure: asp, 13th Session: Approved Programme Budget for 2015 for the International Criminal Court, 24 March 2014, icc-asp/13/20 at para 540 and table 64.

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direct sanction that could be applied to him or her should he or she be found in breach of the initial statement regarding his or her means. It is to be noted nonetheless that when determining a sentence, the Court shall take into account mitigating circumstances, including the convicted person’s conduct after the act, as well as any efforts by the person to compensate the victims and any cooperation with the Court.39 The Registry works closely with the otp in the execution of its mandate in this area. The conclusion of an internal protocol between the two organs on 28 May 2012 is aimed in particular at avoiding sending similar requests for cooperation to the same States and regulates the sharing of information between the two organs, minding their respective mandates and obligations of confidentiality. The Registry meets several difficulties in the implementation of its mandate in this area. The most important challenge is first of all to find enough primary information to generate accurate and targeted requests for assistance.40 The cooperation regime of the icc Statute demands a balance that is difficult to reach, since the primary information requested by States to be able to implement the Court’s requests for assistance can only be generated via domestic investigations, which the Court itself is of course unable to produce. A ‘catch 22’ situation must be avoided, as it would start an endless ‘ping-pong match’ between the Court and the requested State. Informal consultations between the Court and the State’s central authorities may assist the Court in sending the requests for cooperation in a format that would enable States to assist the Court without further delay. Only a constant dialogue can reconcile the obligation of the requested State to cooperate in good faith and the domestic legal limitations that may exist regarding the protection of privacy, bank secrecy and the corresponding prohibition of so-called ‘fishing expeditions’. In practice, strong implementing legislation facilitates the work of the Court. Central registers can also facilitate the work of the Registry when the seized authority can request financial information regarding one specific individual to all financial establishments and consult land registers in one action. The Court also faces more ‘typical’ challenges in the context of financial investigations, namely the legal complexity surrounding ownership and the rapidity with which funds can be transferred internationally, including to States in which the Court does not have jurisdiction.

39 Rule 145 (2)(a)(ii) icc rpe. 40 See asp, Cooperation, 27 November 2013, icc-asp/12/Res.3 at para 6 and asp, Cooperation, 12 November 2012, icc-asp/11/Res.5 at para 4.

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The case law that is being developed by national courts and by the Court with regard to questions of inheritance or bona fide third party claims during the implementation phase is, and will be, very interesting in this regard. Unfortunately, because of the specific nature of the measures sought, most requests for assistance in this domain, and reports of the Registry thereof, are classified under seal. Two recent cases nonetheless provide good examples of the challenges faced in this domain with regard to the two above-mentioned mandates. B The Kenyatta Case – First Mandate The public nature of this decision is due to public references to the existence of a request to identify and freeze the assets of Kenyatta.41 This type of disclosure is most unfortunate, as it constitutes a breach of confidentiality that may hinder the efficiency of the procedure. It should be noted, though, that this type of conservatory measure calls for immediate action on behalf of States, as delays may provide enough time for a person to organise his or her insolvability. This disclosure provided a good opportunity to obtain clarification on the scope of Art. 93(1)(k) icc Statute that could be shared with all States in the context of other cases. The Chamber clarified that when the Court sends a request for the identification, tracing and freezing or seizure of assets and property for the purpose of securing potential future reparation awards, the statutory framework does not require the Court to demonstrate that the assets or property have a nexus with the crimes at hand (i.e. that they are instrumentalities of the crimes or that they came into possession of the person upon execution of the crimes).42 Such a nexus only needs to be demonstrated when requesting protective measures to secure funds for the possible imposition of a forfeiture order pursuant to Art. 77(2)(b) icc Statute. In other words, all assets and properties of a person subject to an arrest warrant or a summons to appear can be subject to conservatory or protective measures until a verdict is reached. In his dissenting opinion, Judge Henderson disputed both the possibility for the Pre-Trial Chamber to be able to request States to take protective measures for the purposes of eventual rewards for reparations, and for the Trial Chamber to do so before conviction of the person.43 Two Pre-Trial Chambers have, however, 41

icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute (2014) supra n 14. 42 See ibid. 43 See icc, Prosecutor v Uhuru Muigai Kenyatta Decision on the implementation of the request to freeze assets (2014) supra n 15; Dissenting Opinion of Judge Geoffrey Henderson (2014) icc-01/09-02/11-931-Anx.

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issued requests for the freezing of assets, including for the purpose of eventual rewards for reparations.44 A clarification by the Appeals Chamber on this matter would therefore be most useful, in order to have a definitive ruling on the matter and define what can be expected from States in this realm. Should the State immediately implement the request, the person would then be aware of the existence of such measures and could go back to the relevant Chamber to request a lifting of the measures, so as to cover family or legal expenses, for example. The Chamber makes reference to the criteria identified in Rule 146(2) icc rpe, which make express reference to the financial needs of the person and his or her dependants and to the principle of proportionality when deciding on the amount of a fine as a useful guiding reference. C The Bemba Case – Second Mandate On 25 August 2008, the Registrar decided45 that in view of the information in her possession, Bemba was not indigent and could not therefore benefit from the legal aid scheme of the Court. She indicated that her decision would be reviewed when the Registry’s financial investigation had been completed as the value a minima of the assets belonging to Bemba could enable him to cover his family obligations and legal fees for a period of six months. In total, eight States were notified with a request to freeze or seize the proceeds, property and assets of Bemba.46 The Registry has been liaising with these States ever since in order to discuss the legal and administrative considerations linked to the implementation of these orders. Despite the fact that, and in part because, the States executed the requests of the Court, it became difficult for Bemba to pay

44

45

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See the implementation by the Registry; icc, Prosecutor v Thomas Lubanga Dyilo Request to the Democratic Republic of the Congo for the purpose of obtaining the identification, tracing, freezing and Seizure of property and assets belonging to Mr. Thomas Lubanga Dyilo, icc-01/04-01/06-22-tEN (9 March 2006) and, icc, Prosecutor v Germain Katanga Under seal Urgent: Request to the Democratic Republic of the Congo for the Purpose of Obtaining the Identification, Tracing, Freezing and Seizure of Property and Assets of Germain Katanga, icc-01/04-01/07-7-tENG (6 July 2007). icc, Prosecutor v Jean-Pierre Bemba Gombo Registrar’s decision on the Application for Legal Assistance Paid by the Court Filed by Mr. Jean-Pierre Bemba Gombo, icc-01/0501/08-76-tENG (25 August 2008) confirmed by the Presidency; icc, Prosecutor v JeanPierre Bemba Gombo Decision on the “Request for Review of the Registrar’s Decision of 25 August 2008 on the Application for Legal Assistance Paid by the Court”, icc-roc85-01/084-Anx (25 February 2009). icc, Prosecutor v Jean-Pierre Bemba Gombo Redacted version of “Decision on legal assistance for the accused”, icc-01/05-01/08-567-Red (26 November 2009) at para 10.

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the legal fees for his team, notwithstanding two decisions granting his requests for lifting of the freezing measures concerning bank accounts in Portugal.47 In a decision dated 26 November 2009,48 Trial Chamber iii, seeing that the defence team had not been paid since March 2009, ordered the Registrar to provide funding in the sum of 30,150 Euros per month (retrospectively since March 2009) until there is a material change of circumstances. The Chamber, mindful that the Registrar was entrusted with public monies, ordered that specific steps be taken by the Registrar to be reimbursed of these funds by Bemba, inter alia, by securing a legal power of attorney and a power of sale in favour of the Registrar over a villa in Portugal, and by securing an appropriate legally enforceable document signed by the accused enabling the Court to be repaid out of the funds of the suspect as and when they become available.49 This decision extended the scope of the financial investigations and cooperation mandate of the Registry, since, in addition to following up the implementation of the requests for cooperation of the Chamber, the Registry was to actively engage in domestic legal proceedings to ensure that a non-indigent accused could have access to his assets and property in order to pay for his defence. The advancement of funds by the Court was also an innovative decision, as the Registry previously worked solely on the basis of Rule 21(5) icc rpe in the event of a decision of indigence, collecting evidence for the Chamber to be able to make an order of contribution to recover the cost of providing counsel. On 29 May 2014, on the basis of this mandate the Registry recovered more than 2 million Euros from a State Party.50 This is a positive outcome of the innovative system put in place by the Chamber and it illustrates that effective cooperation from State Parties may also have a beneficial impact on their budgetary obligations. D Cooperation with Other Actors The Court operates in the context of an international political environment where a number of national jurisdictions and mandates from international 47

icc, Prosecutor v Jean-Pierre Bemba Gombo Decision on the Second Defence’s Application for Lifting the Seizure of Assets and Request for Cooperation to the Competent Authorities of the Republic of Portugal, icc-01/05-01/08-249 (14 November 2008). 48 See icc, Prosecutor v Jean-Pierre Bemba Gombo Redacted version of “Decision on legal assistance for the accused” (2009) supra n 62. 49 See ibid. 50 asp, Report of the Committee on Budget and Finance on the work of its Twenty-Third session, 18 November2014, icc-asp/13/15 at 22.

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organisations interact and co-exist with each other. It is important that while keeping its independence, the Court may rely upon existing systems that aim at fighting impunity, including financial impunity. One obvious system is the sanctions regime established by the different sanctions committees of the unsc.51 These measures, which are administrative or political sanctions in nature, target individuals or entities believed to have committed acts threatening international peace or security. It is further likely that in the countries where the otp has opened an investigation, some individuals will be both subject to freezing of assets measures ordered by the unsc Sanctions Committee and a decision by the relevant Chamber of the Court. In fact, Lubanga, Katanga, Mbarushimana, Mudacumura, Gbagbo, Blé Goudé, Simone Gbagbo, Al-Senussi and Gaddafi are all listed on the sanctions list of the unsc.52 Ideally, some degree of coordination should be achieved between the Court and the unsc to ensure that relevant information can be shared. One difficulty lies in the fact that States that are non-State Parties of the icc but members of the unsc may not necessarily call for coordination with the icc. However, coordination for persons already listed would only strengthen the sanctions regime envisaged by the un Member States. In any event, this difficulty should not arise in situations that were referred by the unsc. Equally important for State Parties, both sets of measures should be applied in parallel and should not impact on each other. The national systems should allow for both the implementation of the freezing measures ordered by the unsc based on Chapter vii un Charter and the simultaneous judicial measures ordered by the icc based on Art. 93 icc Statute. An interesting aspect to take into account is that resolutions of the unsc leave limited discretion to the States to implement them, whereas the drafting of the icc Statute leaves room for legal challenges by States referring to their national procedures, their interpretation of the rights of bona fide third parties or the nexus requirement with the crimes committed. Although the system foresees that States may approach the Chamber if they meet difficulties in implementing a request for cooperation,53 it is interesting to see that States, by virtue of Art. 103 un Charter, are not to question measures imposed by the 51 See unsc Sanctions Committees, ‘Security Council Sanctions Committees: An Overview’, unsc Sanctions Committees, available at: www.un.org/sc/committees/ (last accessed 11 September 2015). 52 See Sanctions List for unsc Res 1533, 12 March 2004, S/res/1533 (2004); unsc Res 1572, 15 November 2004, S/res/1572 (2004); unsc Res 1970, 26 February 2011, S/res/1970 (2011). 53 Rastan, ‘Testing Cooperation: The International Criminal Court and National Authorities’ (2008) 21 Leiden Journal of International Law 431.

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unsc. This is particularly notable given that no judicial review is available with regard to the said measures and despite the fact that such measures may have a major impact on the life and rights of the individuals subject to them. Individuals relying on the guarantees existing in their national legal order have however challenged these measures,54 stressing the importance of judicial review in this matter, such as that performed by the icc Judges when issuing a decision on the freezing of assets. Other partnerships are being explored or formed so that the Court may benefit from existing platforms of exchange of information between States and may be consulted when new tools are developed in the area of international financial investigations, such as, for example, the Interpol new notice aiming at targeting criminal assets. The Court has limited resources and must, when possible, expand its reach and impact by developing strategic partnerships with other international actors. 4

The Assistance to the Defence Teams

As far as the equality of arms is concerned, the defence teams at the icc must rely on different procedures enshrined in the icc Statute and the icc rpe to obtain the necessary support enabling them to have the same means as their counterpart in the proceedings. Art. 93 icc Statute lists the types of assistance that can be required by the Court in the context of investigations and prosecutions. The Court is composed of four organs described in Art. 34 icc Statute, which do not include the defence, as such. This, however, does not mean that the Court organs do not have a mandate to assist, represent the interests of, and be fair to the defence. As far as the Registry is concerned, Rule 20(1)(b) icc rpe provides that the Registrar has specific responsibilities regarding the assistance to the defence teams.55 This Rule has been used by the Registry to transmit requests for assistance from the defence to States and international and regional organisations so that they can benefit from the channels of communication established by the Registry in accordance with Rule 176(2) icc rpe. In practice, a number of States and intergovernmental organisations only agree to consider such 54

Zgonec-Rozej, ‘Introductory note to the European Court of Human Rights: Nada v Switzerland’ (2013) 52, International Legal Materials 268 and echr, Nada v Switzerland Application No 10593/08, Judgement, 12 September 2012. 55 See asp, Report of the Bureau on cooperation, 21 November 2014, icc-asp/13/29, Annex 3: Briefing paper: cooperation and defence issues at 16.

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requests when transmitted by the Registry, which can then guarantee that a number of criteria are met (channel of communications, language, indication that the counsel is indeed a party to the proceedings, format). Others have refused to agree to consider such requests unless they come directly from the Chamber. The question of the Registry’s scope of assistance in this context must be carefully considered in order to ensure maximum transparency with the receiving partners. For example, the Registry must be clear on the fact that the defence request has neither been presented nor a fortiori approved by the Chamber. The Registry in principle does not have a role to review such requests in order to preserve its neutrality and not interfere in the defence strategy. The question of whether or not the Registry should play a ‘filtering’ role is also of interest. Indeed, should the Registry transmit requests that could jeopardise a relationship with a State? Should the Registry transmit a request for information when it is aware that such information is already available within the Court? This is particularly relevant in light of the requirement that the defence first address its request to the organs of the Court.56 What about those requests that are, in fact, not requests for assistance in the sense of Art. 93 icc Statute? In order to maintain its neutral role, the Registry can go back to the defence team if it believes that it would be better for the defence team to address the Chamber directly with a specific request for assistance. A good example of a decision regarding the scope of requests for cooperation was given in the case of the Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, JeanJacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, when the Single Judge refused to grant a request for assistance to the defence team of  Babala regarding the allegation that some items belonging to Babala had disappeared during the search operation ordered by the Court and conducted by the Congolese police.57 The Single Judge rejected the request in limine litis, 56 See icc, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui Decision on the “Defense Application pursuant to Article 57(3)(b) of the Statute to Seek the Cooperation of the Democratic Republic of Congo” icc-01/04-01/07-444 (25 April 2008). 57 icc, Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidéle Babala Wandu and Narcisse Arido Decision on the “Requête de M. Fidèle Babala Wandu visant à obtenir les observations de la République Démocratique du Congo concernant l’exécution du mandat d’arrêt émis par la Cour pénale internationale” submitted by Mr Babala on 22 January 2015, icc-01/05-01/13-800 (23 January 2015); See also icc, Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidéle Babala Wandu and Narcisse Arido Requête visant à obtenir l’autorisation d’interjeter appel contre la Décision icc-01/05-01/13-800 de la Chambre préliminaire ii rendue le 23 février 2015, icc-01/05-01/13-807 (2 February 2015).

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stressing that this type of request could not be regarded as instrumental to either the Prosecutor or the investigation of crimes under the jurisdiction of the Court.58 Another area in which the Registry supports the interests of the defence is the conclusion with States of agreements pertaining to the interim or final release of detained persons.59 Contrary to what exists for the enforcement of sentences, the conclusion of such agreements was not foreseen in the icc Statute. In the context of discussions on the conditional release of Bemba, the Appeals Chamber clarified: In granting conditional release it is necessary to specify the appropriate conditions that make conditional release feasible, identify the State to which Mr Bemba would be released and whether that State would be able to enforce the conditions imposed by the Court.60 It is therefore not possible for the Chamber to order conditional release pending a further determination by the State to which the person could be released. In order to facilitate the designation of potential host States and the review by the Chamber of the conditions under which a person could be released on the territory of a State Party, the Registry, at the request of the Office of Public Counsel for the Defence, drafted an agreement on the interim release of persons. This agreement facilitates the consultations to take place between the requested State and the Court in accordance with Regulation 51 RoC, identifies States that would be willing to cooperate with the Court on this matter and facilitates the streamlining of discussions on this fundamental right in the different fora; it also provides a legal framework that applies to all prospective persons (pre-empting specific problems on the procedures to be applied) and leaves the last word to States on the decision to accept a particular individual on their territory. The latest decision in the Bemba et al. case shows a concrete example of the release of individuals without conditions in States that have an 58 59

60

See ibid. See e.g. Belgium becoming the first country to enter into a voluntary cooperation agreement on the interim release of detained persons in 2014: asp, 13th Session: Report of the Court on cooperation, 23 October 2014, icc-asp/13/23 at para 46. icc, Prosecutor v Jean-Pierre Bemba Gombo Judgment on the appeal of the Prosecutor against Pre-Trial Chamber’s ii’s “Decision on the Interim release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic and the Republic of South Africa”, icc-01/05-01/08-631-Red (2 December 2009).

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obligation to receive them.61 The non-application of conditions may address the concerns voiced by a number of States that they do not necessarily have the means to monitor such conditions. However, the risk of escape and the difficulty of arresting the accused again if necessary are much more important. States should therefore adopt the necessary procedures enabling them to receive a person benefiting from conditional release. The Registry also drafted an agreement on the release of acquitted persons that could be used when it is difficult for the person to go back to his or her country of residence for security or family reasons, for instance.62 This agreement is meant to facilitate the démarches of the Registry in the implementation of Rule 185 icc rpe, when the transfer would be made to another State than a State obliged to receive the person released.63 The Situation in Darfur, Sudan, especially in the context of the Haskanita case, illustrates well the difficulties to overcome with regard to this particular problem. At this stage of the proceedings, the Chamber issued an arrest warrant against Banda after taking note of the fact that the Sudan would not assist the Court in facilitating his appearance.64 In the situation where a State refuses all communications from the Court and has clearly stated that it will not cooperate, one can only imagine that it would be difficult for the Registry to obtain sufficient guarantees regarding the conditions of the return of an accused person in case of acquittal. These two above mentioned hypotheses also point towards the need for the Court to liaise with the unsc when the person is subject to a travel ban, so as to ensure that it is lifted for the purpose of the transfer from the Court to the designated State. This problem became apparent after the Decision on the non-confirmation of charges in Mbarushimana, who was subject to a un travel ban, and which resulted in Mbarushimana spending seven days in detention while a free man before the actual implementation of the decision on his

61

icc, Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidéle Babala Wandu and Narcisse Arido, Decision ordering the release of Aimé Kilolo Musumba, Jean-Jaques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, icc-01/05-01/13-703 (21 October 2014). 62 See asp, 13th Session: Report of the Court on cooperation, 23 October 2014, icc-asp/13/23 supra n 59 at para 45. 63 See also as a possible result of the difficulty for the Court to identify other States willing to host a released person on short notice, the asylum claim lodged by Ngudjolo after his decision on acquittal. 64 icc, Prosecutor v Abdallah Banda Abakaer Nourain Warrant of arrest against Abdallah Banda Abakaer Nourain, icc-02/05-03/09-606 (11 September 2014).

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release.65 Although the Registry has been working on identifying alternative solutions more respectful of the rights of the accused and the defence, this situation reflects the difficulty for the Court to fulfil its mandate effectively, while taking into account external factors over which it does not have control. 5

State Cooperation in Relation to the Protection of Victims and Witnesses

The adequate protection of witnesses is imperative to the successful functioning of any judicial process.66 This is especially true for the icc, which relies extensively on witness testimony.67 The drafters of the icc Statute believed in a holistic approach in relation to the protection of witnesses and victims and foresaw that the responsibility to protect them would lie with the Court as a whole. The statutory framework of the Court shows that the icc has a duty to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, as indicated by Art. 68(1) icc Statute. Accordingly, the protection of witnesses and victims is the shared responsibility of all parties and organs of the Court,68 and can be found in all the different statutory regulations of the Court.69 Nonetheless, Arts. 43(6) and 68(4) icc Statute create a specific responsibility of the Registry in relation to the protection of witnesses and victims. Art.

65

icc, Prosecutor v Callixte Mbarushimana Decision on the confirmation of charges, icc01/04-01/10-465-Red (16 December 2011). 66 Mahony, The Justice Sector Afterthought: Witness protection in Africa (Pretoria: Institute for Security Studies, 2010) 1 and Glušcic, Klemencic, Ljubin, Novosel, Tripalo & Vermeulen, Protecting witnesses of serious crime: Training Manual for law enforcement and judiciary (Strasbourg: Council of Europe Publishing, 2006) 27. 67 International Bar Association, ‘Witnesses before the International Criminal Court: An International Bar Association International Criminal Court Programme report on the icc’s efforts and challenges to protect, support and ensure the rights of witnesses’, International Bar Association, 11 July 2013, available at: www.ibanet.org/Article/Detail. aspx?ArticleUid=4470A96B-C4FA-457F-9854-CE8F6DA005ED (last accessed 14 August 2015) at 14. 68 Eikel, ‘Witness Protection Measures at the International Criminal Court: Legal Framework and Emerging Practice’ (2012) 23 Criminal Law Forum 97 at 101. 69 See e.g. Regulation 44–49 Regulations of the otp and Art. 29 Code of Professional Conduct for Counsel.

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43(6) icc Statute stipulates that ‘[t]he Registrar shall set up a Victims and Witnesses Unit within the Registry’ which: [S]hall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. Art. 68(4) icc Statute reiterates that the ‘Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6’. As per those provisions, a specific section, the Victims and Witnesses Unit (vwu), was created within the Registry as an entity responsible for the provision of services to the Prosecutor, the defence, the legal representatives of victims and the Chambers in relation to witnesses and victims who appear before the Court, and others who are at risk on account of testimony. Its location within the Registry aims to ensure its neutrality, as prescribed by international witness protection standards.70 Its main tasks are witnesses’ and victims’ protection, operational/logistical planning, psychological protection and psychosocial support. This mandate is further developed in the other legal instruments applicable before the icc. The icc rpe, for instance, stipulate that the vwu shall provide witnesses, victims who appear before the Court and others who are at risk on account of testimony with adequate protective and security measures.71 The vwu also formulates long- and short-term plans for their protection, recommends to the organs of the Court the adoption of protection measures,72 such as procedural protective measures (e.g. voice and facial distortion when a witness is appearing before the Court, the use of a pseudonym, closed camera proceedings)73 and assists witnesses when they are called to testify before the Court.74

70

71 72 73 74

un Office on Drugs and Crime, ‘Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organized Crime’, un Office on Drugs and Crime, January 2008, available at: www.unodc.org/unodc/en/organized-crime/witness-protection.html (last accessed 14 August 2015) at 53. Rule 17 icc rpe. Rule 17(2)(a)(ii) icc rpe. Rule 87 icc rpe. Rule 17(2)(b)(i) icc rpe and Regulations 79 to 91 Regulations of the Registry.

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The Registry has a variety of operational protection mechanisms at its disposal to ensure the protection of witnesses and victims. The protection scheme followed is often described as a pyramidal structure, as there is a correlation between the intrusiveness of the measure, the frequency of its implementation and the risk that the measure aims to mitigate. The usual protection measures implemented are listed below in order of intrusiveness: – The elaboration and delivery of good practices guidelines and trainings aimed at informing the beneficiaries on the best ways to avoid unnecessary exposure and to ensure that their interaction with the Court remains as discrete as possible by following confidentiality principles. These practices form the base of the pyramid. – The implementation of local protection measures aiming at enhancing the security of the beneficiary’s direct environment (e.g. installing locks in the home or providing mobile telephones for emergencies). – Inclusion in the ICC Protection Programme (the ‘ICCPP’),75 which provides for the permanent relocation of beneficiaries and their families to another place of residence within the same country, or in extreme circumstances to a third country. This is a last resort measure, as the implications for the persons involved are very severe, hence this measure is at the very top of the pyramid.76 As stated above, the more intrusive the measure, the less likely it is to be applied. Inclusion in the iccpp for instance, and especially the international relocation of one of its beneficiaries, is less likely to be implemented than other measures as it is normally only recommended for individuals who are at the most risk. Nevertheless, it is paramount for the Court to be able to move witnesses or victims quickly and internationally when their specific circumstances demand such a high protection level. Therefore, in recent years, one of the icc’s main targets has been to obtain the cooperation of States in the area of international relocation. Indeed, without State Parties’ cooperation in this field, the Court would be unable to ensure 75 Regulation 96 Regulations of the Registry. 76 Council of Europe Committee of Ministers, ‘Recommendation Rec(2005)9 of the Committee of Ministers of the Council of Europe to the Member States on the protection of witnesses and collaborators of Justice’, Council of Europe, 20 April 2005, available at: wcd .coe.int/ViewDoc.jsp?id=849237&Site=CM&BackColorInternet=C3C3C3&BackColorIntra net=EDB021&BackColorLogged=F5D383 (last accessed 14 August 2015) at Recommendation nr 23.

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the effective protection of witnesses and victims. The decision to accept a witness on the territory of a State is of a voluntary nature. As such, the icc needs States to agree to receive iccpp beneficiaries on their territory. While all efforts have been made by the organs and officials77 of the Court in pleading for the conclusion of bilateral agreements aimed at formalising the readiness of States to welcome witnesses or victims, only 15 relocation agreements have so far been concluded between State Parties and the Registry.78 This is not enough to fulfil the icc’s obligations regarding protection.79 Consequently, the Registry, which bears, according to Rule 16(4) icc rpe, the responsibility of negotiating those agreements on behalf of the Court,80 has intensified in recent years its efforts to conclude such relocation agreements.81 Additionally, the asp has also called upon States to assist the Court through the signature of relocation agreements or any other ad hoc arrangements.82 The Registry has two approaches when it comes to cooperation with State Parties in relation to relocation: on the one hand, the conclusion of a classic bilateral agreement addressing the relocation of witnesses or victims of the Court on the territory of a State (referred to as ‘relocation agreements’) and, on the other hand, the negotiation of ad hoc protection arrangements. In both cases, a State agrees to host on its territory witnesses (and often their dependants), who are threatened in their country of residence due to their interaction with the Court. The classic approach consists of a framework agreement which can be adjusted according to the specific needs and national legal structure of the parties. State Parties that have concluded a relocation agreement 77

78 79 80

81 82

See e.g. President Sang-Hyun Song, ‘Statement at the opening of the 13th Session of the Assembly of States Parties to the rs of the International Criminal Court’, icc, 8 December 2014, available at: www.icc-cpi.int/en_menus/asp/sessions/documentation/13th-session/ Pages/default.aspx#STATEMENTS (last accessed 14 August 2015) at 4. asp, 13th Session: Report on the activities of the International Criminal Court in 2013/2014, 19 November 2014, icc-asp/13/37 at para 83. asp, Resolution on Cooperation, 27 November 2013, icc-asp/12/Res.3. The exclusive responsibility of the Registry in relation to the International Relocation of witnesses has been confirmed by the Appeal Chamber during the pre-trial phase of the case of icc, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui Judgment on the Appeal of the Prosecutor against the “Decision on Evidentiary Scope of the Confirmation hearing, Preventive Relocation, and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules” of Pre-Trial Chamber i, icc-01/04-01/07-776 (26 November 2008). Four additional relocation agreements were signed in 2013 and 2014; asp, Report of the Court on Cooperation, 23 October 2014, icc-asp/13/23 at para 17. asp, Resolution on cooperation, 27 November 2013, icc-asp/12/Res.3 at para 20 and asp, Resolution on cooperation, 17 December 2014, icc-asp/13/Res.3 at paras 17–19 and ibid asp, Report of the Court on Cooperation, (2014) at para 24.

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are under no obligation to accept a witness or a victim for relocation, as the final decision always lies with the State itself. In practice, the Registry addresses a referral to the State enclosing all relevant information on the witness or the victim for whom the relocation is sought, in order for the national authorities to make their decision. Although States are offered a great deal of flexibility in relation to the drafting of the agreement and are always assured that they will remain fully sovereign in their determination, some States have clearly indicated their reluctance to enter into such framework agreements. As a result, the Registry developed an alternative perspective on international relocation by inviting States to enter into ad hoc protection arrangements. These arrangements are usually based on an individual request for cooperation to a State concerning the temporary or permanent relocation of an individual (and, when applicable, his/her dependents) on the territory of the State. Although this approach is relatively new, the initial observations tend to indicate that it could help the Registry to gain the cooperation of State Parties previously reluctant to engage in the negotiation of more formal relocation agreements. African States are of special importance in relation to relocation agreements and ad hoc arrangements. As the icc’s current caseload predominantly concerns African countries, most witnesses and victims needing protection are of African origin. Relocation is a last resort measure which severely disrupts a person’s life and it is therefore imperative to mitigate the adverse consequences attached to its implementation. Due account should be given to finding solutions that, while fulfilling the strict safety requirements, also minimise the humanitarian costs of geographical distance and change of linguistic and cultural environment.83 For instance, a similar or familiar culture and no language barrier can help to increase the successful integration of a family unit into a new State of residence. It is therefore desirable and beneficial for iccpp beneficiaries that African States agree to welcome witnesses and victims into their territories. The icc has therefore decided to focus specifically on witness protection during the regional seminars organised on the African continent, with the strong desire to enhance the cooperation between African State Parties and the Court in this specific area.84 This of course does not prevent approaches to be made to other States willing to engage with the Court as the Court’s needs, in relation to witness protection, require the assistance of as many partners as possible. 83 Ibid asp, Resolution on Cooperation (2014) at para 19. 84 Seminars on cooperation with the icc were held in Dakar (Senegal) on 24 and 25 June 2013, Accra (Ghana) on 3 and 4 July 2014 and Cotonou (Benin) on 3 and 4 November 2014.

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The last alternative developed by the Registry to facilitate relocation is the establishment of a Special Trust Fund for Relocation (the ‘sfr’), whereby a State can donate funds for the benefit of another State accepting the relocation of witnesses or victims to its territory.85 The sfr was established in recognition of the financial challenges faced by a number of countries willing to consider concluding relocation agreements with the Court. The sfr manages donations from State Parties to relocate witnesses in third countries through a cost neutral arrangement. It envisages that Member States that are unable to host persons at risk can still assist the Court in the protection of witnesses through monetary donations. Therefore, States who are able to donate to the sfr, but are unable to host persons at risk, and vice-versa, will still be able to assist the Court in the protection of witnesses. The icc has received a significant amount of contributions to the sfr. The ability to use the Fund has been an excellent incentive for some States that are willing to be partners of the Court in the area of witness protection but cannot afford the costs of relocation. As demonstrated above, the relocation of witnesses and victims is a critical need for the icc. The Registry, in striving to fulfil its responsibility as per the pertinent legal texts and case law of the Court, has developed creative ways of enhancing the cooperation of States in this area. Indications are that these new alternatives are starting to pay off. However, the Registry is keen on pursuing its efforts as the effectiveness of its protection system fully depends on its ability to move persons at risk as expeditiously as possible and to have as many options as necessary at its disposal. 6 Conclusion From the assistance to defence teams to the protection of witnesses and victims, the field of activities of the Registry, for which the cooperation of States is crucial, is both broad and diverse. Shortly before her appointment as the new President of the Court, Judge Fernández de Gurmendi explained in the above mentioned cooperation seminar held in Benin in November 2014 that only a better mutual understanding can foster good cooperation. In her words, ‘a good knowledge and proper understanding of the activities of the Court, and

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icc, Information Circular and Annex: Publication of the Regulations of the Special Fund for Relocation, 3 August 2015, icc/inf/2015/013.

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of the States’ experiences and difficulties in their relations with the Court, are a prerequisite for cooperation’.86 This chapter presented leads and questions to generate discussions on the different areas of cooperation falling inter alia within the Registry’s mandate. One clear conclusion is that the Court benefits the most from coherent, clear and transparent standards of cooperation, which in return enable States to optimise their assistance to the Court. List of References Books and Journals

Brant and Steiner (eds), O Tribunal Penal Internacional: Comentários ao Estatuto de Roma (Belo Horizonte: Del Rey, 2015). Eikel, ‘Witness Protection Measures at the International Criminal Court: Legal Framework and Emerging Practice’ (2012) 23 Criminal Law Forum 97. Glušcic, Klemencic, Ljubin, Novosel, Tripalo & Vermeulen, Protecting witnesses of serious crime: Training Manual for law enforcement and judiciary (Strasbourg: Council of Europe Publishing, 2006) 27. Mahony, The Justice Sector Afterthought: Witness protection in Africa (Pretoria: Institute for Security Studies, 2010) 1. Rastan, ‘Testing Cooperation: The International Criminal Court and National Authorities’ (2008) 21 Leiden Journal of International Law 431. Zgonec-Rozej, ‘Introductory note to the European Court of Human Rights: Nada v Switzerland’ (2013) 52, International Legal Materials 268.

Legal Cases and United Nations Documents

ECHR, Nada v Switzerland Application No 10593/08, Judgement, 12 September 2012. ICC, Prosecutor v Thomas Lubanga Dyilo Request to the Democratic Republic of the Congo for the purpose of obtaining the identification, tracing, freezing and Seizure of property and assets belonging to Mr. Thomas Lubanga Dyilo, ICC-01/04-01/06-22tEN (9 March 2006). ICC, Prosecutor v Germain Katanga Under seal Urgent: Request to the Democratic Republic of the Congo for the Purpose of Obtaining the Identification, Tracing, Freezing and Seizure of Property and Assets of Germain Katanga, ICC-01/04-01/077-tENG (6 July 2007). 86

President of the Court, Judge Fernández de Gurmendi, ‘Seminar on cooperation with the icc concludes in Benin’, icc, 5 November 2014, available at: www.icc-cpi.int/en_menus/icc/ press%20and%20media/press%20releases/pages/pr1060.aspx (last accessed 14 August 2014).

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ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui Decision on the “Defense Application pursuant to Article 57(3)(b) of the Statute to Seek the Cooperation of the Democratic Republic of Congo” ICC-01/04-01/07-444 (25 April 2008). ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui Judgment on the Appeal of the Prosecutor against the “Decision on Evidentiary Scope of the Confirmation hearing, Preventive Relocation, and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules” of Pre-Trial Chamber i, ICC-01/04-01/07-776 (26 November 2008). ICC, Prosecutor v Jean-Pierre Bemba Gombo Decision on the Second Defence’s Applica­ tion for Lifting the Seizure of Assets and Request for Cooperation to the Competent Authorities of the Republic of Portugal, ICC-01/05-01/08-249 (14 November 2008c). ICC, Prosecutor v Jean-Pierre Bemba Gombo Registrar’s decision on the Application for Legal Assistance Paid by the Court Filed by Mr. Jean-Pierre Bemba Gombo, ICC01/05-01/08-76-tENG (25 August 2008). ICC, Prosecutor v Jean-Pierre Bemba Gombo Decision on the “Request for Review of the Registrar’s Decision of 25 August 2008 on the Application for Legal Assistance Paid by the Court”, ICC-ROC85-01/08-4-Anx (25 February 2009). ICC, Prosecutor v Jean-Pierre Bemba Gombo Judgment on the appeal of the Prosecutor against Pre-Trial Chamber’s II’s “Decision on the Interim release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic and the Republic of South Africa”, ICC-01/05-01/08-631-Red (2 December 2009). ICC, Prosecutor v Jean-Pierre Bemba Gombo Redacted version of “Decision on legal assistance for the accused”, ICC-01/05-01/08-567-Red (26 November 2009). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al Bashir’s presence in the territory of the Republic of Kenya, ICC02/05-01/09-107 (27 August 2010). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al Bashir’s recent visit to the Republic of Chad, ICC-02/05-01/09-109 (27 August 2010). ICC, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang and Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Application on behalf of the Government of the Republic of Kenya pursuant to Article 19 of the ICC statute, ICC-01/09-02/11-26 and ICC-01/09-01/11-19 (31 March 2011). ICC, Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus Decision on “Defence Application pursuant to articles 57(3) (b) and 64 (6)(a) of the

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Statute for an order for the preparation and transmission of a cooperation request to the Government of the Republic of the Sudan”, ICC-02/05-03/09-169 (1 July 2011b). ICC, Prosecutor v Callixte Mbarushimana Decision on the confirmation of charges, ICC-01/04-01/10-465-Red (16 December 2011). ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui Application for Leave to Appeal the Trial Chamber’s Decision ICC-01/04-01/07-3003 dated 9 June 2011, ICC 01/04-01/07-3020 (15 June 2011). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Corrigendum to the Decision pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-139-Corr (13 December 2011). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al Bashir’s recent visit to Djibouti, ICC-02/05-01/09-129 (12 May 2011). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision pursuant to Article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-140-tENG (13 December 2011). ICC, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the “Request by the Government of Kenya in respect of the Confirmation of Charges Proceedings”, ICC-01/09-01/11-313 (1 September 2011). ICC, Prosecution v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Decision on the request for suspensive effect and related issues, ICC-01/11-01/11-387 (18 July 2013a). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Federal Republic of Nigeria regarding Omar Al Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-159 (5 September 2013). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court regarding the Arrest and Surrender of Omar Hassan Ahmad Al Bashir ICC-02/05-01/09-151 (26 March 2013). ICC, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Decision on the “Urgent Application on behalf of Abdullah Al-Senussi for Pre-Trial Chamber to order the Libyan Authorities to comply with their obligations and the orders of the ICC”, ICC-01/11-01/11-269 (6 February 2013). ICC, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Decision concerning a privileged visit to Abdullah Al Senussi by his Defense, ICC-01/11-01/11-456 (26 September 2013).

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ICC, Prosecutor v Simone Gbagbo “Requête de la République de Côte d’Ivoire sur la recevabilité de l’affaire Le Procureur c. Simone Gbagbo, et demande de sursis à exécution en vertu des articles 17, 19 et 95 du Statut de Rome”, ICC-02/11-01/12-11-Red (1 October 2013). ICC, Prosecutor v Simone Gbagbo Decision on the conduct of the proceedings follow­ ing Cote d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo, ICC-02/11-01/12-15 (15 November 2013). ICC, Prosecutor v William Samoei Ruto and Joshua Arap Sang Decision on the requests for leave to submit observations under rule 103 of the Rules of Procedure and Evidence, ICC-01/09-01/11-942 (13 September 2013). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision requesting observations from the Government of Kenya, ICC-01/09-02/11-870 (9 December 2013). ICC, Prosecutor v Abdallah Banda Abakaer Nourain Warrant of arrest against Abdallah Banda Abakaer Nourain, ICC-02/05-03/09-606 (11 September 2014). ICC, Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidéle Babala Wandu and Narcisse Arido, Decision ordering the release of Aimé Kilolo Musumba, Jean-Jaques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, ICC-01/05-01/13-703 (21 October 2014). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of Congo Regarding Omar Al-Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-195 (9 April 2014). ICC, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Decision following the declaration of inadmissibility of the case against Abdullah Al-Senussi before the Court, ICC-01/11-01/11-567 (7 August 2014). ICC, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Decision following the declaration of inadmissibility of the case against Abdullah Al-Senussi before the Court, ICC-01/11-01/11-567 (7 August 2014). ICC, Prosecutor v Saif Al-Islam Gaddafi Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council, ICC-01/11-01/11-577 (10 December 2014). ICC, Prosecutor v Simone Gbagbo Appeal of the Republic of Cote d’Ivoire against Pre-Trial Chamber i’s Decision on Cote d’Ivoire’s Challenge to the Admissibility of the Case Against Simone Gbagbo, ICC-02/11-01-12-48-tENG (17 December 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, ICC-01/09-02/11-982 (3 December 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on the implementation of the request to freeze assets, ICC-01/09-02/11-931 (8 July 2014).

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ICC, Prosecutor v William Samoei Ruto and Joshua Arap Sang Decision on the Republic of Kenya’s request for leave to make observations under rule 103 of the Rules of Procedure and Evidence, ICC-01/09-01/11-1350 (10 June 2014). ICC, Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidéle Babala Wandu and Narcisse Arido Decision on the “Requête de M. Fidèle Babala Wandu visant à obtenir les observations de la République Démocratique du Congo concernant l’exécution du mandat d’arrêt émis par la Cour pénale internationale” submitted by Mr Babala on 22 January 2015, ICC-01/05-01/13-800 (23 January 2015). ICC, Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidéle Babala Wandu and Narcisse Arido Requête visant à obtenir l’autorisation d’interjeter appel contre la Décision ICC-01/05-01/13-800 de la Chambre préliminaire II rendue le 23 février 2015, ICC-01/05-01/13-807 (2 February 2015). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding on Non-Compliance Against the Republic of the Sudan, ICC-02/0501/09-227 (9 March 2015). ICC, Prosecutor v Thomas Lubanga Dyilo Judgment on the appeals against the “Deci­ sion establishing the principles and procedures to be applied to reparations” of 7 August 2012 with Amended order for reparations (Annex A) and public annexes 1 and 2, ICC-01/04-01/06-3129 (3 March 2015). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on the Prosecution’s request for leave to appeal, ICC-01/09-02/11-1004 (9 March 2015). ICC, Prosecutor v Uhuru Muigai Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber V(B)’s “Decision on Prosecution’s application for a finding of noncompliance under Article 87(7) of the Statute”, ICC-01/09-02/11-1032 (19 August 2015). ICC, Prosecutor v Uhuru Muigai Kenyatta Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, ICC-01/09-02/11-983 (5 December 2015). ICC, Situation on Registered Vessels of the Union of the Comoros, The Hellenic Repulic of Greece and the Kingdom of Cambodia Publicly Redacted Version with Confidential Annexes 1, 2, and 3: Application for Review pursuant to Article 53(3)(a) of the Prosecutor’s Decision of 6 November 2014 not to initiate an investigation in the Situation, ICC-01/13-3-Red (29 January 2015). ICC, Situation on Registered Vessels of the Union of the Comoros, The Hellenic Republic of Greece and the Kingdom of Cambodia Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, ICC01/13-34 (16 July 2015). ICC, Situation on Registered Vessels of the Union of the Comoros, The Hellenic Republic of Greece and the Kingdom of Cambodia Annex to the Decision on the request of the

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Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, ICC-01/13-34-Anx (16 July 2015). ICC, Situation on Registered Vessels of the Union of the Comoros, The Hellenic Republic of Greece and the Kingdom of Cambodia Notice of Appeal of “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”, ICC-01/13-35 (27 July 2015). UNSC Res 1970, 26 February 2011, S/RES/1970 (2011). UNSC Res 1533, 12 March 2004, S/RES/1533 (2004). UNSC Res 1572, 15 November 2004, S/RES/1572 (2004).



Other Documents



Online Materials

ASP, Cooperation, 12 November 2012, ICC-ASP/11/Res.5. ASP, Cooperation, 27 November 2013a, ICC-ASP/12/Res.3. ASP, Resolution on Cooperation, 27 November 2013b, ICC-ASP/12/Res.3. ASP, 13th Session: Approved Programme Budget for 2015 for the International Criminal Court, 24 March 2014a, ICC-ASP/13/20. ASP, 13th Session: Report of the Court on cooperation, 23 October 2014b, ICC-ASP/13/23. ASP, 13th Session: Report on the activities of the International Criminal Court in 2013/2014, 19 November 2014c, ICC-ASP/13/37. ASP, Report of the Bureau on cooperation, 21 November 2014d, ICC-ASP/13/29, Annex 3: Briefing paper: cooperation and defence issues. ASP, Report of the Committee on Budget and Finance on the work of its Twenty-Third session, 18 November2014e, ICC-ASP/13/15. ASP, Report of the Court on Cooperation, 23 October 2014f, ICC-ASP/13/23. ASP, Resolution on cooperation, 17 December 2014g, ICC-ASP/13/Res.3. ICC, Information Circular and Annex: Publication of the Regulations of the Special Fund for Relocation, 3 August 2015, ICC/INF/2015/013.

Council of Europe Committee of Ministers, ‘Recommendation Rec(2005)9 of the Committee of Ministers of the Council of Europe to the Member States on the protection of witnesses and collaborators of Justice’, Council of Europe, 20 2005, available at: wcd.coe.int/ViewDoc.jsp?id=849237&Site=CM&BackColorInternet=C3C3C 3&BackColorIntranet=EDB021&BackColorLogged=F5D383 (last accessed 14 August 2015). International Bar Association, ‘Witnesses before the International Criminal Court: An International Bar Association International Criminal Court Programme report on the ICC’s efforts and challenges to protect, support and ensure the rights of witnesses’, International Bar Association, 11 2013, available at: www.ibanet.org/Article/

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Detail.aspx?ArticleUid=4470A96B-C4FA-457F-9854-CE8F6DA005ED (last accessed 14 August 2015). President of the Court, Judge Fernández de Gurmendi, ‘Seminar on cooperation with the ICC concludes in Benin’, ICC, 5 2014, available at: www.icc-cpi.int/en_menus/ icc/press%20and%20media/press%20releases/pages/pr1060.aspx (last accessed 14 August 2014). President Sang-Hyun Song, ‘Statement at the opening of the 13th Session of the Assembly of States Parties to the RS of the International Criminal Court’, ICC, 8 2014, available at: www.icc-cpi.int/en_menus/asp/sessions/documentation/13th-session/ Pages/default.aspx#STATEMENTS (last accessed 14 August 2015). UN Office on Drugs and Crime, ‘Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organized Crime’, UN Office on Drugs and Crime, 2008, available at: www.unodc.org/unodc/en/organized-crime/witness-protection. html (last accessed 14 August 2015). UNSC Sanctions Committees, ‘Security Council Sanctions Committees: An Overview’, UNSC Sanctions Committees, available at: www.un.org/sc/committees/ (last accessed 11 September 2015).

Non-cooperation and the Efficiency of the International Criminal Court Annika Jones 1 Introduction One of the most significant challenges that the icc has faced since its creation in 2002 has been that of securing State cooperation. The icc, much like the icty and ictr (ad hoc Tribunals), which preceded the Court’s establishment, relies heavily on the cooperation of States for the investigation and prosecution of the crimes that fall within its jurisdiction.1 The icc Statute identifies a number of ways in which the icc is dependent on States, from the arrest and surrender of suspects to the preservation of evidence and the protection of victims and witnesses.2 In its short period of operation, the failure of States to cooperate with the icc has frustrated the Court’s proceedings significantly. This chapter examines the relationship between non-cooperation and the efficiency (namely, the speed and cost-effectiveness) of the icc. The chapter begins by highlighting the impact of the failure of States to cooperate with the Court on the efficiency of its proceedings. It draws from the Court’s early investigations in Darfur, Sudan, and Kenya to demonstrate the significant impact that non-cooperation has had on the ability of the Court to seek justice for the crimes that fall within its jurisdiction, and to do so efficiently and effectively. The chapter goes on to consider the potential for the inefficiency of the icc, conversely, to affect the willingness of States to cooperate with the Court. It argues that the relationship between efficiency and non-cooperation can be understood to have a cyclical dimension, whereby inefficiency within the icc could encourage non-cooperation from States, which could, in turn, produce further inefficiency. The cycle is one that must be addressed from within the icc and the Court’s legislative and management body, the asp, by taking measures to encourage efficiency in all aspects of the Court’s operation, including responses to non-cooperation. It concludes by highlighting measures that are currently being taken to this end. 1 Ciampi, ‘The Obligation to Cooperate’ in Cassese, Gaeta and Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: oup, 2002) 1607–1608; Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 European Journal of International Law 144 at 164. 2 Arts. 89 and 93 icc Statute.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_008

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The Impact of Non-cooperation on the Efficiency of the International Criminal Court

The icc’s battle with non-cooperation was anticipated even before the Court came into operation.3 The difficulties faced by the ad hoc Tribunals had already demonstrated the importance of State support for the pursuit of international criminal justice in an international system without its own enforcement agency. The ad hoc Tribunals were theoretically in a strong position to secure the cooperation of States, having been established under the unsc’s Chapter vii powers under the UN Charter and, consequently, having the benefit of recourse to sanctions from the unsc in the event that States failed to cooperate.4 Nonetheless, the Tribunals experienced ‘considerable resistance and obstruction’ from States, including those who were not directly involved in the relevant conflicts.5 Their struggle for cooperation, particularly in relation to the arrest and surrender of high-level accused,6 has extended the lifespan of the institutions significantly. The icc is in a far weaker position than the ad hoc Tribunals in securing the cooperation of States. This is due to the fact that the legal basis of the Court lies in a multilateral treaty, as opposed to the Chapter vii un Charter powers of the unsc. The treaty basis of the icc has several implications. Firstly, whilst all States were bound to cooperate with the ad hoc Tribunals, only State Parties are bound to cooperate with the icc. This is unless an obligation to cooperate with the Court is included in a resolution referring a situation to the icc under Art. 13 icc Statute or the relevant non-State Party has entered into an agreement to cooperate with the Court under Art. 87(5) icc Statute. Secondly, whereas the ad hoc Tribunals could, in theory, benefit from the imposition of sanctions from the unsc in situations of non-compliance, the icc cannot, unless the unsc has referred the situation to the Court. The most severe response that the Court can take to instances of non-cooperation is a judicial finding of non-cooperation and diplomatic pressure through its legislative and management body, the asp.7 Thirdly, the provisions for cooperation within the 3 Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) supra n 1 at 164. 4 Rastan, ‘Testing Co-operation: The International Criminal Court and National Authorities’ (2008) 21 Leiden Journal of International Law 431 at 438. 5 Ibid. 6 Wald, ‘Apprehending War Criminals: Does International Cooperation Work?’ (2012) 27 American University International Law Review 229 at 231. 7 See Art. 87(7) icc Statute (State Parties) and Art. 87(5) icc Statute (Non-State Parties).

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icc Statute acknowledge several bases for postponement or refusal to cooperate with the Court.8 In light of these provisions, the icc’s cooperation regime has been seen to demonstrate more of the ‘horizontal’ features of consensual, inter-State cooperation than the ‘vertical’ nature of cooperation between States and the ad hoc Tribunals.9 The language of the icc’s cooperation provisions, which make reference to ‘requests’ for cooperation and avoid reference to ‘orders’, is also reflective of a consensual cooperation model. The weakness of the icc’s cooperation regime has been exposed on a number of occasions in the early years of the Court’s operation. Whilst the Court had managed to secure a fair level of cooperation from States that had referred their own situations to the Court,10 serious issues began to arise following the Prosecutor’s decision to initiate an investigation into the Situation in Darfur, Sudan. The Situation in Darfur was referred to the icc by the unsc in January 2005.11 The referral followed a report of the International Commission of Inquiry on Darfur, which had established that serious violations of international human rights law and international humanitarian law, amounting to crimes under international law, had been committed with the involvement of Sudanese Government forces and militias.12 The referral of the situation to the icc by the unsc provided a strong basis for cooperation, giving the Court ‘the legal and ostensible political backing of 8

These include concerns for the protection of national security (Art. 72 icc Statute), the protection of third party interests (Arts. 73 and 93(9)(b) icc Statute), competing requests for extradition from third States (Art. 90 icc Statute) and the existence of conflicting obligations under international law (Art. 98 icc Statute). See Rastan, ‘Testing Co-operation: The International Criminal Court and National Authorities’ (2008) supra n 4 at 433. 9 On the distinction between ‘horizontal’ and ‘vertical’ powers, see icty, Prosecutor v Tihomir Blaskic Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber ii of 18 July 1997, it-94-14 (29 October 1997). For discussion of the icc’s mix of horizontal and vertical features, see Rastan, ‘Testing Co-operation: The International Criminal Court and National Authorities (2008) supra n 4 at 432–433. 10 The icc’s early self-referrals included situations in Uganda, the Democratic Republic of the Congo and the Central African Republic. It should be noted that the icc has encountered cooperation issues in relation to its investigations in Uganda. See Peskin, ‘Caution and Confrontation in the International Criminal Court’s Pursuit of Accountability in Uganda and Sudan’ (2009) 31 Human Rights Quarterly 655 at 678–689. 11 unsc Res 1583, 28 January 2005, S/res/1583 (2005). 12 icc, ‘Report of the International Commission of Inquiry on Darfur to the SecretaryGeneral pursuant to un Security Council Resolution 1564 (2004) of 18 September 2004’, icc, 25 January 2005, available at: www.legal-tools.org/doc/1480de/ (last accessed 20 August 2015).

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the world body’.13 The resolution referring the situation to the icc urged ‘all States’ to ‘cooperate fully’ with the Court, placing an obligation on non-State Parties as well as State Parties to the icc Statute to cooperate with the Court.14 However, this was the first situation that the Prosecutor had begun to investigate without the support of the territorial State. It was also the first situation in relation to which the Court had issued an arrest warrant against a sitting Head of State, President Al Bashir. These facts made the Darfur situation an important test for the icc’s cooperation regime. Six years after the issuance of an arrest warrant against President Al Bashir, the accused remains at large.15 Three other suspects have also evaded arrest and surrender, namely Ahmad Muhammad Harun (Ahmad Harun) (Former Minister of State for the Interior of the Government of Sudan, and Minister of State for Humanitarian Affairs of Sudan), Ali Muhammad Ali Abd-Al-Rahman (Ali Kushayb) (Alleged leader of the Janjaweed Militia) and Abdel Raheem Muhammad Hussein (Minister of National Defence, former Minister of the Interior and former Sudanese President’s Special Representative in Darfur). The Pre-Trial Chamber of the icc has made a number of judicial findings of non-cooperation in relation to the Situation in Darfur. In May 2010, the PreTrial Chamber issued a decision in the case of Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman, informing the unsc of Sudan’s failure to cooperate with the Court in the arrest and surrender of the accused, contrary to its obligations under unsc Resolution 1583 (2005).16 The Chamber made further findings of non-cooperation in relation to Sudan in the case of Prosecutor v Omar Hassan Ahmad Al Bashir in March 2005,17 and in the case of Prosecutor v Abdel Raheem Muhammad Hussein in June 2015.18 13

Peskin, ‘Caution and Confrontation in the International Criminal Court’s Pursuit of Accountability in Uganda and Sudan’ (2009) supra n 10 at 666. 14 unsc Res 1583 (2005) supra n 11 at para 2. 15 icc, Prosecutor v Omar Hassan Ahmad Al Bashir Warrant of Arrest for Omar Hassan Ahmad Al Bashir, icc-02/05-01/09-1 (4 March 2009); icc, Prosecutor v Omar Hassan Ahmad Al Bashir Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir icc-02/0501/09-95 (12 July 2010). 16 icc, Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman Decision informing the United Nations Security Council about the lack of cooperation by the Republic of the Sudan, icc-02/05-01/07-57 (25 May 2010). 17 icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding of Non-Compliance Against the Republic of the Sudan, icc-02/05-01/09-227 (9 March 2015). 18 See icc Press Release, ‘icc Pre-Trial Chamber ii refers to the unsc Sudan’s non-cooperation and failure to arrest Mr Abdel Raheem Hussein’, icc, 26 June 2015, icc-cpi-20150626-pr1123,

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Other decisions have been issued by the Pre-Trial Chamber in relation to the non-cooperation of Chad,19 Kenya,20 Djibouti,21 Malawi22 and the drc.23 Each decision concerned the failure of the relevant State to cooperate in the arrest and surrender President Al Bashir when he had entered their territory. It is important to note that each of these States is a State Party to the icc Statute and has an obligation to cooperate with the Court under the icc Statute, as well as unsc Resolution 1583.24 On each occasion, the Court has referred the matter to the unsc, allowing it to take measures deemed appropriate. However, despite appeals from the current and former Prosecutors of the icc,25 the unsc has not taken any formal measures to sanction States that have failed to

19

20

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available at: www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/ pr1123.aspx (last accessed 20 August 2015). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad, icc-02/05-01/09-109 (27 August 2010); icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, icc-02/05-01/09-140-tENG (13 December 2011); icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, icc-02/05-01/09-151 (26 March 2013). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya, icc-02/05-01/09-107 (27 August 2010). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti, icc-02/05-01/09-129 (12 May 2011). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, icc-02/05-01/09-139-Corr (13 December 2011). icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, icc-02/05-01/09-195 (9 April 2014). unsc Res 1583 (2005) supra n 11. See e.g. icc-otp, ‘Statement to the United Nations Security Council on the Situation in Darfur, pursuant to unscr 1593 (2005)’, icc, 12 December 2014, available at: www.icc-cpi .int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/ reports%20and%20statements/statement/Pages/stmt-OTP-20th-report.aspx (last accessed 20 August 2015). See also discussion in Wald, ‘Apprehending War Criminals: Does Inter­ national Cooperation Work?’ (2012) supra n 6 at 232.

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comply with their obligation to cooperate with the Court. In December 2014, the Prosecutor of the icc indicated that in the absence of support from the unsc, she would need to ‘hibernate investigative activities in Darfur’.26 Whilst the Prosecutor has since provided reassurance that investigative activities are continuing in Darfur, and stressed the determination of her Office to ‘bring independent and impartial justice to the people of Sudan’,27 the failure of States to cooperate with the icc’s investigations in Darfur has had an obvious impact on the efficiency of the Court. Considerable time and resources have been invested in the icc’s investigations, which cannot proceed to trial without the arrest and surrender of the accused. The failure of Sudan and other States to cooperate with the Court’s investigations has increased the length and, consequently, the cost of the Court’s proceedings. In doing so, it has contributed to a general sense of frustration with the slow pace of justice at the icc and dissatisfaction with the small number of cases that the Court has seen through to completion.28 This is problematic insofar as it affects the perceived effectiveness of the icc in the eyes of States, victim groups and the international community more generally. Another situation in which the Court has struggled considerably for cooperation is that of Kenya. The Court’s investigation in Kenya concerns the postelectoral violence that took place on the territory of Kenya from 2007 to 2008. The Kenyan situation was another test case for the icc. It was the first investigation that the Prosecutor of the Court had initiated using proprio motu powers of investigation; powers which had been contentious during the drafting of the icc Statute.29 As with the Situation in Darfur, Sudan, the Situation in Kenya involves high-level government officials. Summonses to appear were issued in 2011 against three individuals, including Uhuru Muigai Kenyatta and William Samoei Ruto, now President and Deputy President of the Republic of Kenya.30 26 Ibid, icc-otp, ‘Statement to the United Nations Security Council on the Situation in Darfur, pursuant to unscr 1593 (2005)’ (2014) at para 4. 27 icc-otp, ‘Statement to the United Nations Security Council on the Situation in Darfur, pursuant to unscr 1593 (2005)’, icc, 29 June 2015, available at: www.icc-cpi.int/en_menus/ icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports% 20and%20statements/statement/Pages/29-06-15-otp-report-unsc.aspx (last accessed 20 August 2015) at paras 12 and 25. 28 See infra Section 3.A. 29 Bergsmo and Pejić, ‘Article 15: Prosecutor’ in Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, 2nd edition (Baden-Baden: Nomos, 2008) 581–585. 30 icc, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the Prosecutor’s Application for Summons to Appear for William Samoei

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Unlike Sudan, Kenya is a State Party to the icc Statute and, as such, has an obligation under the icc Statute to cooperate with the Court’s investigation. Despite the voluntary appearance of the accused before the Court, the Prosecutor of the icc has struggled to secure the cooperation of the Kenyan Government, particularly in relation to the transfer of records required for the Court’s investigations.31 On 29 November, 2014, the otp filed an application for a finding of non-cooperation against the Kenyan Government, claiming that it had not complied with a request to provide financial and other records relating to Kenyatta.32 The Trial Chamber found that the approach of the Kenyan Government to the icc’s cooperation requests had ‘fall[en] short of the standard of good faith cooperation required under Article 93 of the [icc] Statute’.33 The Chamber was not, however, persuaded that a referral to the asp would facilitate a fair trial or the interests of justice, since it may lead to ‘further uncertainty and potential delay for the proceedings’.34 The decision of the Trial Chamber was subsequently reversed, following an appeal from the Prosecutor, and remanded for the Trial Chamber to determine anew whether Kenya had failed to comply with its obligation to cooperate under the icc Statute and to

Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, icc-01/09-01/11-01 (8 March 2011); icc, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, icc-01/09-02/11-01 (8 March 2011). 31 Evenson, ‘Justice for Kenya Stumbles at the icc’, hrw, 7 January 2014, available at: www .hrw.org/news/2014/01/07/justice-kenya-stumbles-icc (last accessed 20 August 2015). 32 icc, Prosecutor v Uhuru Muigai Kenyatta Prosecution application for a finding of noncompliance pursuant to Article 87(7) against the Government of Kenya, icc-01/09-02/ 11-866-Conf-Exp (29 November 2013). A public redacted version was filed as icc, Prosecutor v Uhuru Muigai Kenyatta Public redacted version of the Prosecution application for a finding of non-compliance pursuant to Article 87(7) against the Government of Kenya, icc-01/09-02/11-866-Red (2 December 2013). 33 icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s Application for a Finding of Non-Compliance under Article 87(7) of the Statute, icc-01/09-02/11-982 (3 December 2014) at para 78. See also icc Press Release, ‘Kenyatta Case: icc Trial Chamber Rejects Request for Further Adjournment and Directs the Prosecution to Indicate Either Its Withdrawal of Charges or Readiness to Proceed to Trial’, icc, 3 December 2014, icc-cpi20141203-pr1071, available at: www.icc-cpi.int/en_menus/icc/press%20and%20media/ press%20releases/pages/pr1071.aspx (last accessed 20 August 2015). 34 Ibid, icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s Application for a Finding of Non-Compliance under Article 87(7) of the Statute (2014) at para 82.

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consider the appropriateness of referring the matter to the asp.35 In a separate decision, the Trial Chamber denied the Prosecutor’s request to adjourn the case until the Kenyan Government complied with the request for cooperation.36 Against the background of the difficulties outlined above, the Prosecutor of the icc, Mrs Fatou Bensouda, gave notice to withdraw the charges against Kenyatta in December 2014.37 In a press release issued on the same day, Bensouda highlighted three ‘severe challenges’ that her Office had faced in the investigation of Kenyatta, including the non-cooperation of the Kenyan Government with the Court’s cooperation requests, which, she argued, had ‘compromised the Prosecution’s ability to thoroughly investigate the charges’.38 She explained as follows: From the time that the Prosecution submitted its revised 8 April 2014 Request to the Government of Kenya, the material the Government sent us simply did not respond to a significant portion of our Revised Request for Records. In short, most of the material sought in my Revised Request was not provided. This is despite the fact that the icc Judges clearly confirmed that my Revised Request was valid, and dismissed all of the Government’s objections to it. In this situation the most relevant documentary evidence regarding the postelection violence could only be found in Kenya. Yet, despite assurances of its

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icc, Prosecutor v Uhuru Muigai Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber V(B)’s ‘Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute’, icc-01/09-02/11-1032 (19 August 2015) at para 98. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s Application for a Finding of Non-Compliance under Article 87(7) of the Statute (2014) supra n 33 at para 83. icc, Prosecutor v Uhuru Muigai Kenyatta Notice of Withdrawal of the Charges against Uhuru Muigai Kenyatta, icc-01/09-02/11-983 (5 December 2014). icc-otp, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the Withdrawal of Charges against Mr. Uhuru Muigai Kenyatta’, icc, 5 December 2014, available at: www.icc-cpi.int/en_menus/icc/press%20and%20media/ press%20releases/pages/otp-statement-05-12-2014-2.aspx (last accessed 22 June 15). The Prosecutor also highlighted two further challenges: that ‘several people who may have provided important evidence regarding Mr. Kenyatta’s actions, have died, while others were too terrified to testify for the Prosecution’ and that ‘key witnesses who provided evidence in this case later withdraw or changed their accounts…’.

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willingness to cooperate with the Court, the Government of Kenya failed to follow through on those assurances.39 The Trial Chamber subsequently withdrew the charges against Kenyatta on 5 March 2015.40 In its decision, the Chamber indicated that the Prosecutor would be able to bring ‘new charges against the accused at a later date, based on the same or similar factual circumstances, should it obtain sufficient evidence to support such a course of action’.41 As with the Situation in Darfur, Sudan, the failure of the Kenyan Government to cooperate with the icc has created significant investigative challenges for the Prosecutor, impacting on the time and resources that have been required to pursue justice for those who were affected by the post-electoral violence in Kenya. More significantly, lack of State cooperation has contributed, at least in part, to the withdrawal of charges against a key accused, Kenyatta. Again, the obstruction of the Court’s investigative activities has had implications for the Court’s completion rate, as well as its perceived effectiveness in the eyes of the Court’s critics and supporters. It is clear from the examples above that the failure of States to cooperate with the icc has had a significant impact on the operation of the Court and has affected its overall efficiency by prolonging the Court’s investigations, and even, in the case against Kenyatta, bringing them to a complete standstill. Against this background, the following section considers the relationship between efficiency and non-cooperation from a different angle, by looking at the impact of the efficiency of the icc on the willingness of States to cooperate with the Court. 3

The Impact of the Efficiency of the International Criminal Court on State Cooperation

Just as the failure of States to cooperate with the icc can extend the length of the Court’s proceedings, the efficiency of the Court could affect the willingness of States to cooperate with the icc. The following sections discuss the implications of the efficiency of the Court in general terms before looking specifically at the Court’s response to non-cooperation.

39 Ibid. 40 icc, Prosecutor v Uhuru Muigai Kenyatta Decision on the Withdrawal of Charges against Mr. Kenyatta, icc-01/09-02/11-1005 (13 March 2015). 41 Ibid at para 9.

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A The Efficiency of the Court’s Operation The relationship between the efficiency of the icc and levels of State cooperation is significant in light of theories about why States comply with international law. Different factors have been understood to influence the willingness of States to comply with their international legal obligations, including the threat of sanctions, the protection of national interests, concerns about reciprocity and reputation, the operation of domestic courts, the feasibility and cost of compliance and the clarity and perceived legitimacy of the relevant rules.42 One factor that is frequently highlighted in academic literature on State compliance with international law is the reputational cost of noncompliance.43 This factor is particularly important at the icc, given the inability of the Court to formally sanction States that fail to comply with its requests for cooperation, beyond a judicial finding of non-cooperation.44 The reputational cost of non-compliance with the icc’s requests for cooperation is logically tied to the international reputation of the icc. The more efficient, impartial, fair and legitimate the icc is perceived to be, the greater the reputational cost that States are likely to suffer if they fail to comply with the Court’s requests for cooperation.45 The efficiency of the icc is, of course, only one factor that feeds into the Court’s international reputation, but it is an important one. A common refrain in critiques of international courts and tribunals, including the icc, is the inability of such mechanisms to render justice in a fast and cost-effective manner.46 With this in mind, the icc’s early record for efficiency and cost-effectiveness is deeply problematic. In its tenth year of operation, the icc had only rendered one final judgment, in the case of Prosecutor v Thomas Lubanga Dyilo.47 The trial proceedings in this case, which focused on the narrow charges of conscripting, 42

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For a review of different theories of compliance with international law, see Raustiala and Slaughter, ‘International Law, International Relations and Compliance’ in Carlnaes, Risse and Simmons (eds), The Handbook of International Relations (London: Sage, 2002) 538. See e.g. Guzman, ‘A Compliance-Based Theory of International Law’ (2002) 90 California Law Review 1823 at 1827. Art. 87(7) icc Statute. Rastan has drawn a connection between perceptions of the icc and rates of compliance, arguing: ‘what an international court may lack in coercive powers it can make up for, in part, by the pull of its legitimacy and moral authority’. Rastan, ‘Testing Co-operation: The International Criminal Court and National Authorities’ (2008) supra n 4 at 455. Galbraith, ‘The Pace of International Criminal Justice’ (2009) 31 Michigan Journal of International Law 79 at 80–82. icc, Prosecutor v Thomas Lubanga Dyilo Judgment pursuant to Article 74 of the Statute, icc-01/04-1/06-2842 (14 March 2012).

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enlisting and using child soldiers as war crimes in the drc, took over five years to complete.48 This was despite the resolve of the Presiding Judge of the Trial Chamber, Judge Fulford, to prevent trials at the Court from ‘extending into infinity’.49 The length of the Court’s proceedings in the Lubanga case is attributable, in part, to procedural irregularities on the part of the otp, which led the proceedings to be stayed on more than one occasion in order to protect the rights of the accused.50 Other cases before the icc have, however, taken a similar length of time. Trial proceedings in the case of Prosecutor v Germain Katanga, which resulted in the conviction of the accused for crimes against humanity and war crimes, took over five years to complete.51 The case of Prosecutor v Mathieu Ngudjolo Chui, which resulted in the Court’s first acquittal, was before the Trial Chamber for over four years.52 The slow pace of justice at the icc to date has been seen to contribute to a sense of disillusionment with the ‘project’ of international criminal justice and a growing sense of impatience amongst State Parties to the icc Statute, which the Court relies on not only for funding, but also to cooperate with its investigations and to put pressure on other States and international organisations to do the same.53 Over time, perceptions of inefficiency and ineffectiveness could have a negative impact on the reputation of the icc and affect levels of State support. In order to avoid this risk, it is vital that measures are taken to promote the efficiency of the icc in every aspect of its operation. A number of measures are already being taken to this end, which will be discussed further in Section 4, below. 48

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The decision on the confirmation of charges was rendered on 29th January, 2007. See icc, Prosecutor v Thomas Lubanga Dyilo Decision on the Confirmation of Charges, icc-01/0401/06-803-tEN (29 January 2007). Fulford, ‘The Reflections of a Trial Judge’ (2011) 22 Criminal Law Forum 215 at 218. icc, Prosecutor v Thomas Lubanga Dyilo Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain Other Issues Raised at the Status Conference on 10 June 2008, icc-01/04-01/06-1401 (13 June 2008); icc, Prosecutor v Thomas Lubanga Dyilo, Redacted Decision on the Prosecution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the vwu, icc-01/04-01/06-2517Red (8 July 2010). The decision of the confirmation of charges was rendered on 26 September 2008, with a final judgment rendered on 7 March 2014. The decision of the confirmation of charges was rendered on 26 September 2008, with a verdict issued on 18 December 2012. Jessberger and Geneuss, ‘Down the Drain or Down to Earth? International Criminal Justice under Pressure’ (2013) 11 Journal of International Criminal Justice 501 at 501.

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Another way in which the icc can help to counteract perceptions of inefficiency is by developing measures of the Court’s progress that do not depend solely on final judgments of the Trial Chamber. Given the size and complexity of cases involving the commission of international crimes, and their ability to be stalled through the non-cooperation of States, it is important to highlight other markers of productivity, such as the completion of interim stages of pretrial and trial proceedings, the numbers of victims that have participated in the Court’s proceedings, and so on. Section 4 will note current efforts being undertaken to this end. B Efficiency in Responding to Instances of Non-cooperation In order to exploit the reputational costs of non-compliance, it is necessary not only to enhance the reputation of the icc, but also to respond to instances of non-compliance in a timely and decisive manner. Prompt action is required in order to garner the support of third States and to encourage recalcitrant States to comply with the icc’s cooperation requests. It has already been noted that the most significant action that the icc can take in response to non-cooperation is a judicial finding of non-compliance with the Court’s cooperation requests. Art. 87(7) icc Statute allows the Court to make a finding of non-cooperation in the event that a State Party to the icc Statute refuses to cooperate, and to ‘refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council’. Art. 87(5)(b) icc Statute also allows the Court to address the non-cooperation of non-State Parties that have agreed to provide assistance to the icc pursuant to an ad hoc agreement or arrangement with the Court by informing the asp or, where relevant, the unsc. A timely response from the Court to instances of non-cooperation is important. It has been highlighted elsewhere that the postponement of the Art. 87(7) icc Statute procedure ‘creates the impression that instances of refusal are condoned; it also carries the risk that a state is “condemned” for failure to cooperate without proper judicial determination’.54 The icc has received criticism for its failure to take decisive action in response to instances of non-cooperation in its early years of operation. The concerns relate largely to the Prosecutor’s reaction to uncooperative States. The approach of the Prosecutor is important, given that the he or she is ‘the most visible and vital actor both inside and outside the tribunal’s courtrooms’

54

Sluiter, ‘Obtaining Cooperation from Sudan – Where is the Law?’ (2008) 6 Journal of International Criminal Justice 871 at 884.

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and ‘the official who is most responsible for leading the Court’s effort to prod targeted states to cooperate’.55 The otp is in a much stronger position to identify instances of non-cooperation than the Court’s defence counsel because of its access to information during preliminary examinations and the early stages of the Court’s investigations.56 Criticisms have been raised in light of the Prosecutor’s approach to noncooperation in both of the situations discussed above (Darfur and Kenya).57 Sluiter has questioned the Prosecutor’s delay in informing the Pre-Trial Chamber of Sudan’s failure to cooperate with the Court’s investigations in Darfur, given that instances of non-cooperation occurred prior to the issuance of the Court’s arrest warrants and that Sudan had ‘always openly expressed its dissatisfaction with the Court and its intention not to cooperate’.58 The Prosecutor’s approach prevented the Pre-Trial Chamber from formally notifying the unsc of Sudan’s non-compliance in a timely manner.59 In relation to the Situation in Kenya, the Prosecutor has, again, been reprimanded for failing to react quickly enough to non-compliance with the Court’s requests for cooperation. In response to the Prosecutor’s request for a finding of non-cooperation against the Kenyan Government in the case of Prosecutor v Uhuru Muigai Kenyatta, the Trial Chamber of the icc criticised the Prosecutor’s delay in following up on the Kenyan Government’s compliance with the relevant cooperation request.60 The Chamber stressed: [T]he issue of the Kenyan Government’s cooperation with the Records Request should have been addressed at a much earlier stage; doing so 55 56

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58 59 60

Peskin, ‘Caution and Confrontation in the International Criminal Court’s Pursuit of Accountability in Uganda and Sudan’ (2009) supra n 10 at 659–660. See University of Nottingham Human Rights Law Centre (hrlc), ‘Expert Workshop on Cooperation and the International Criminal Court: Report’, hrlc, 18–19 September 2014, available at: www.nottingham.ac.uk/hrlc/newsholding/news-2015/cooperation-workshop -report-published.aspx (last accessed 14 August 2015), which details the conclusions of the Expert Workshop on Cooperation with the International Criminal Court. See e.g. Sluiter, ‘Obtaining Cooperation from Sudan – Where is the Law?’ (2008) supra n 54. Peskin, ‘Caution and Confrontation in the International Criminal Court’s Pursuit of Accountability in Uganda and Sudan’ (2009) supra n 10 at 655. Sluiter, ‘Obtaining Cooperation from Sudan – Where is the Law?’ (2008) supra n 54 at 873. Peskin, ‘Caution and Confrontation in the International Criminal Court’s Pursuit of Accountability in Uganda and Sudan’ (2009) supra n 10 at 671. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s Application for a Finding of Non-Compliance under Article 87(7) of the Statute (2014) supra n 33 at paras 86–90.

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would, to a significant degree, have mitigated the impact that the noncompliance has had on the proceedings in this case.61 It was against this background, and more general concerns about the timeliness and thoroughness of OTP investigations in the case against Kenyatta, that the Trial Chamber refused to adjourn the case until the Kenyan Government had complied with the cooperation request and decided not to refer the matter to the asp.62 In its Judgment, reversing the Trial Chamber’s decision on Kenya’s failure to cooperate, the Appeals Chamber acknowledged: [T]he conduct of the requesting party, in this case the Prosecutor, may also be a relevant factor [in considering the failure of a State to cooperate or the appropriateness of referring a matter of non-cooperation to the asp under Art. 87(7) icc Statute] if the actions of the requesting party have negatively impacted the requested State’s ability to cooperate.63 The risk for the Prosecutor – and the icc more generally – in taking a decisive approach to non-cooperation is that it could lead States to become more resistant to the icc’s investigations.64 The Court’s investigations in Darfur and Kenya have, however, shown that a lenient approach to non-cooperation may not only fail to encourage States to cooperate with the Court, but that it may also undermine the perception of the icc as a strong institution that can respond effectively to instances of non-compliance. Whilst each situation is different, the examples of Darfur and Kenya suggest that tolerance of noncooperation may be more damaging to the Prosecutor’s cause than decisive action. In order to promote cooperation with the icc’s investigations, it is important that the Court’s response to non-cooperation is not only prompt, but also consistent. Inconsistent responses could raise ambiguities as to the obligations that States hold under the icc’s cooperation regime and weaken the Court’s compliance pull. This is another area in which the Court has received criticism. 61 62 63

64

Ibid at para 86. Ibid at paras 83 and 86–90. icc, Prosecutor v Uhuru Muigai Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber V(B)’s ‘Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute’ (2015), supra n 35 at para 87. Peskin, ‘Caution and Confrontation in the International Criminal Court’s Pursuit of Accountability in Uganda and Sudan’ (2009) supra n 10 at 666 or 676.

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Concerns have been raised, for example, in light of the decision of the Pre-Trial Chamber to refer the drc to the unsc for failing to cooperate with the icc in the arrest and surrender of President Al Bashir when the Chamber had used its discretion not to refer Nigeria under similar circumstances, namely the attendance of President Al Bashir at a conference on the territory of the requested State.65 It is not only the icc that must demonstrate strength and consistency in responding to instances of non-cooperation; the Court also relies upon the asp and, where the unsc has referred a situation to the Court, the unsc to take decisive action in the event of non-compliance with the Court’s cooperation requests. To date, the unsc has failed to take a firm response to the icc’s findings of non-cooperation and has not taken measures to sanction uncooperative States. The frustration of the Prosecutor of the icc with the lack of support from the unsc in relation to the investigation in Darfur is evident in her statement in December 2014. The statement notes: It is becoming increasingly difficult for me to appear before you to update you when all I am doing is repeating the same things I have said over and over again, most of which are well known to this Council. Not only does the situation in Darfur continue to deteriorate, the brutality with which crimes are being committed has become more pronounced. Women and girls continue to bear the brunt of sustained attacks on innocent civilians. But this Council is yet to be spurred into action. Victims of rapes are asking themselves how many more women should be brutally attacked for this Council to appreciate the magnitude of their plight.66 In order for the icc to succeed in bringing perpetrators to justice for the most serious crimes of concern to the international community as a whole, a prompt and consistent response is required from both within and beyond the icc. Whilst measures can be taken to improve the Court’s responsiveness to instances of non-cooperation, the icc will remain reliant on States, international and regional organisations and civil society to support its activities by taking firm diplomatic, and, where possible, coercive, action against uncooperative States. The unsc must take a firm approach to non-cooperation in relation to situations 65 66

hrlc, ‘Expert Workshop on Cooperation and the International Criminal Court: Report’ (2014) supra n 56 at para 33. icc-otp, ‘Statement to the United Nations Security Council on the Situation in Darfur, pursuant to unscr 1593 (2005)’, (2014) supra n 25.

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that it has referred to the icc, which not only concern grave international crimes but, by definition, constitute threats to international peace and security.67 4

Towards a more Efficient and Effective International Criminal Court

In the sections above it has been argued that just as non-cooperation can have a negative impact on the efficiency of the Court, the inefficiency of the Court could have a negative impact on the willingness of States to cooperate. The two issues can be seen to affect one another. It is possible that the relationship between the Court’s efficiency and State cooperation could even have a cyclical dimension, whereby inefficiency within the icc could reduce levels of State cooperation, which could, in turn, produce further inefficiency. In order to break this cycle, measures must be taken by the icc and the asp to improve the efficiency of the Court in every aspect of its operation, including its response to issues of non-cooperation. A Improving the Efficiency of the International Criminal Court The asp has been focusing on the efficiency of the icc for a number of years. In 2010, it established a Study Group on Governance (Study Group) to facilitate ‘a structured dialogue between States Parties [to the icc Statute] and the Court with a view to strengthening the institutional framework of the Rome Statute system and enhancing the efficiency and effectiveness of the Court’, to ‘[identify] where further action is required, in consultation with the Court’, and to ‘[formulate] recommendations to the Assembly’.68 Following its establishment, the Study Group invited the icc to undertake a review of lessons learnt in the first ten years of the Court’s operation, with a view to identifying measures that could be taken to expedite judicial proceedings and enhance their efficiency.69 To this end, the icc produced a report in October 2012, entitled ‘Lessons Learnt: First Report of the Court to the Assembly of States Parties’.70 The Report identified nine issues that required further 67 68 69 70

Art. 13 icc Statute allows the Security Council to refer situations to the Court, acting under Chapter vii un Charter. asp, Establishment of a Study Group on Governance, 10 December 2010, icc-asp/9/Res.2 at paras 1 and 2. asp, Report of the Bureau on the Study Group on Governance, 22 November 2011, iccasp/10/30 at para 25. asp, Study Group on Governance: Lessons Learnt: First Report of the Court to the Assembly of States Parties, 23 October 2012, icc-asp/11/31/Add.1.

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consideration and proposed a road map of steps to be taken to ‘ensure timely discussions and actions’.71 A ‘Draft Roadmap on Reviewing the Criminal Procedures of the International Criminal Court’72 was adopted by the asp in November 2012 to support the amendment of the icc rpe in response to issues identified by the Court in its Report on Lessons Learnt.73 Whilst certain changes to the icc’s working practices require amendment of the icc rpe, others are being carried out informally, and more quickly, within the different organs and offices of the Court. The Draft Strategic Plan of the otp (2016–2018), for example, identifies a number of different initiatives that have been taken to improve the organisational performance of the otp and notes efficiency gains that have, consequently, been made in the period from 2012–2015.74 Further changes are being carried out under the aegis of the Registrar’s ‘ReVision Project’, which seeks to ‘reorganize and streamline the Registry’s organizational structure’,75 pursuant to a mandate from the asp.76 The measures outlined above have the potential to increase the efficiency of the icc significantly and, in doing so, increase levels of State support for the icc and enhance the strength of its cooperation regime. The challenge for the icc is to carry out wide-ranging reforms in order to promote the efficiency of the Court whilst safeguarding the rights of the accused and ensuring that the proceedings remain accessible and meaningful for the victims and communities that have been most severely affected by the commission of international crimes. The international reputation of the icc depends, after all, not only on the Court’s efficiency, but also on its perceived fairness and effectiveness in the pursuit of justice and accountability. In light of the discussion in Section 3.A. above, it is also important to note that the Registrar has been working on the development of benchmarks or 71 72 73 74

75

76

Ibid at para 3. Ibid at Annex 1. Ibid at para 4. icc-otp, ‘otp Strategic Plan 2016-2018’, icc, 6 July 2015, available at: www.icc-cpi.int/en _menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/ reports%20and%20statements/statement/Pages/otp-rep-150708.aspx (last accessed 21 August 2015). See, in particular, paras 19–21. asp, Report on the review of the organizational structure of the Registry Outcomes of Phase 4 of the ReVision Project Decisions on the structure of the Registry, 4 May 2015, icc-asp/14/18. asp, Programme budget for 2014, the Working Capital Fund for 2014, scale of assessments for the apportionment of expenses of the International Criminal Court, financing appropriations for 2014 and the Contingency Fund, 27 November 2013, icc-asp/12/Res.1 at Section H, para 3.

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indicators to measure the performance of the Registry and has recognised ‘a wider question as to the possibility of such indicators for the Court as a whole’.77 The otp has also developed performance indicators to help assess its operation and the implementation of its Strategic Plan.78 Such indicators could play a useful role in presenting a more nuanced account of the icc’s operation than assessments that focus solely on the Court’s final decisions and help to strengthen the Court’s international reputation by providing reassurance as to its productivity.79 B Expediting Responses to Non-cooperation Efforts have also been made to support a timely response to the failure of States to comply with the icc’s cooperation requests. Alongside its work on the efficiency of the icc, the asp has been working on the issue of non-cooperation. In 2011, the asp produced its Procedures Relating to Non-Cooperation (Procedures), which elaborate on the measures that the asp can take in situations where States fail to comply with their obligations to cooperate with the Court.80 The Procedures make a number of references to prompt action. For example, where the Court has made a decision regarding non-cooperation that is addressed to the asp, the decision should be ‘forwarded to all States Parties without delay’.81 An Emergency Bureau meeting could then be ‘convened at short notice’.82 An open letter from the President of the asp may be sent to the 77

Von Hebel, ‘Registrar of the International Criminal Court, Speaking Points for the Diplomatic Briefing’, icc, 17 November 2014, available at: www.icc-cpi.int/iccdocs/db/ registrar-remarks-24DB-17-11-2014.pdf (last accessed 21 August 2015) at 4. See also Swiss Federal Department of Foreign Affairs, ‘Retreat on Strengthening the Proceedings at the International Criminal Court: Chair’s Summary’, Federal Department of Foreign Affairs, 3–5 September 2014, available at: www.eda.admin.ch/content/dam/eda/en/documents/ dfa/dfa_aussenpolitik_voelkerrecht_Chair_Summary_%20ICC%20Retreat_en.pdf (last accessed 24 August 2015) at para 2.3. 78 See icc-otp, ‘otp Strategic Plan 2016–2018’ (2015) supra n 74 at paras 103–109. See also Annex 4, ‘Link between goals, budget objectives and performance indicators 2016’. 79 See Swiss Federal Department of Foreign Affairs, ‘Retreat on Strengthening the Proceedings at the International Criminal Court: Chair’s Summary’ (2014) supra n 77. 80 asp, Strengthening the International Criminal Court and the Assembly of States Parties, 21 December 2011, icc-asp/10/Res.5 at Annex, ‘Assembly Procedure Relating to NonCooperation’; as amended by asp, Strengthening the International Criminal Court and the Assembly of States Parties, 21 November 2012, icc-asp/11/Res.8 at Annex.1. 81 Ibid at para 13. 82 Ibid at para 14(a).

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State concerned ‘within a specified time limit of no more than two weeks’.83 A meeting of the Bureau could then be held ‘[u]pon expiration of the time limit or upon receipt of a written response’,84 and so on. Whilst the measures referred to in the Procedures are weak, in that they are confined to various forms of diplomatic pressure, the process that is envisaged is one that has momentum and promises to place sustained pressure on States to comply with their legal obligations. The Procedures also acknowledge the need for the asp to take an urgent, informal response to non-cooperation in situations where the Court has not made a judicial determination on non-cooperation under Art. 87 icc Statute, referring the matter to the asp. Such measures can be taken where: [T]here are reasons to believe that a specific and serious incident of noncooperation in respect of a request for arrest and surrender of a person (article 89 of the Rome Statute) is about to occur or is currently ongoing and urgent action by the Assembly may help bring about cooperation.85 Consequently, the Procedures allow the asp to act more quickly than the icc, and even allow it to pre-empt a situation of non-cooperation involving the arrest and surrender of an individual to the Court. Whilst the asp has an important role to play in responding to instances of non-cooperation, a prompt and consistent response from within the icc remains crucial. One reason for this is that the Procedures restrict the circumstances under which the asp can act informally without a judicial decision on non-cooperation. A judicial decision on non-cooperation is also important in order to send a clear message that non-compliance with the Court’s requests for cooperation will not be condoned and to avoid any ambiguity as to whether or not certain States have complied with their legal obligations.86 In order to strengthen the icc’s cooperation regime and increase the reputational damage that stems from non-cooperation it is crucial that all relevant actors, including the icc, the asp and the unsc, respond promptly and consistently to instances of non-cooperation.

83 84 85 86

Ibid at para 14(b). Ibid at para 14(c). asp, Strengthening the International Criminal Court and the Assembly of States Parties (2011) supra n 80 at Annex ‘Assembly procedures relating to non-cooperation’ 7(b). Sluiter, ‘Obtaining Cooperation from Sudan – Where is the Law?’ (2008) supra n 54 at 884.

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5 Conclusion It has been argued elsewhere that ‘[t]he inability [of the icc] to arrest accused leaders for instance – as in Sudan – is a failure of political will, and not a failure of international criminal justice’.87 The purpose of this chapter is to suggest that the failure of States to cooperate with the icc in the arrest and surrender of suspects, or other forms of cooperation, must be viewed, at least in part, as a failure of international criminal justice, and a failure of the icc. This is due to the relationship between the reputation of the icc and the willingness of States and other institutions to support and cooperate with its investigations. In order to enhance levels of State cooperation, the Court must prove itself to be an efficient and effective mechanism, capable of rendering fair and impartial justice in the aftermath of the commission of international crimes. By bolstering its reputation, the Court can encourage greater levels of support for its activities and deter instances of non-cooperation by increasing the reputational costs that they entail. A reduction in instances of non-cooperation can, in turn, enhance the efficiency of the icc and encourage greater international support for its operation in a cyclical fashion. It is also important that the icc responds quickly and consistently to instances of non-cooperation. A prompt response is necessary in order to exploit the reputational costs of non-compliance and increase the pressure that is placed on States to comply with the Court’s requests for cooperation. Measures to improve the efficiency of the icc are ongoing within the Court and the asp. The challenge facing practitioners and policy-makers involved in the reform process is to make the necessary changes to the icc’s system of justice without jeopardising the fairness of the Court’s proceedings and their significance in the eyes of victims that have suffered as a result of the commission of international crimes. This is important in light of the fact that the international reputation of the Court does not rest on productivity and cost-effectiveness alone. Of course, no matter how efficient the icc is, the Court will always be dependent on external actors – States, civil society and international organisations – to support its investigations. It is hoped that as the icc matures and proves itself to be an efficient and effective criminal justice mechanism, its support network will become stronger and instances of non-cooperation may be more easily addressed.

87

Akhavan, ‘The Rise, and Fall, and Rise of International Criminal Justice’ (2013) 11 Journal of International Criminal Justice 527 at 530.

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List of References Books and Journals

Akhavan, ‘The Rise, and Fall, and Rise of International Criminal Justice’ (2013) 11 Journal of International Criminal Justice 527. Bergsmo and Pejić, ‘Article 15: Prosecutor’ in Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, 2nd edition (Baden-Baden: Nomos, 2008) 581. Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 European Journal of International Law 144. Ciampi, ‘The Obligation to Cooperate’ in Cassese, Gaeta and Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: OUP, 2002) 1607. Fulford, ‘The Reflections of a Trial Judge’ (2011) 22 Criminal Law Forum 215. Galbraith, ‘The Pace of International Criminal Justice’ (2009) 31 Michigan Journal of International Law 79. Guzman, ‘A Compliance-Based Theory of International Law’ (2002) 90 California Law Review 1823. Jessberger and Geneuss, ‘Down the Drain or Down to Earth? International Criminal Justice under Pressure’ (2013) 11 Journal of International Criminal Justice 501. Peskin, ‘Caution and Confrontation in the International Criminal Court’s Pursuit of Accountability in Uganda and Sudan’ (2009) 31 Human Rights Quarterly 655. Rastan, ‘Testing Co-operation: The International Criminal Court and National Authorities’ (2008) 21 Leiden Journal of International Law 431. Raustiala and Slaughter, ‘International Law, International Relations and Compliance’ in Carlnaes, Risse and Simmons (eds), The Handbook of International Relations (London: Sage, 2002) 538. Sluiter, ‘Obtaining Cooperation from Sudan – Where is the Law?’ (2008) 6 Journal of International Criminal Justice 871. Wald, ‘Apprehending War Criminals: Does International Cooperation Work?’ (2012) 27 American University International Law Review 229.



Legal Cases and United Nations Documents

ICC, Prosecutor v Thomas Lubanga Dyilo Decision on the Confirmation of Charges, ICC-01/04-01/06-803-tEN (29 January 2007). ICC, Prosecutor v Thomas Lubanga Dyilo Decision on the Consequences of NonDisclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain Other Issues Raised at the Status Conference on 10 June 2008, ICC-01/04-01/06-1401 (13 June 2008).

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ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1 (4 March 2009). ICC, Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman Decision informing the United Nations Security Council about the lack of cooperation by the Republic of the Sudan, ICC-02/05-01/07-57 (25 May 2010). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad, ICC-02/05-01/09-109 (27 August 2010). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya, ICC02/05-01/09-107 (27 August 2010). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir ICC-02/05-01/09-95 (12 July 2010). ICC, Prosecutor v Thomas Lubanga Dyilo, Redacted Decision on the Prosecution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU, ICC-01/04-01/06-2517-Red (8 July 2010). ICC, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-01 (8 March 2011). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti, ICC-02/05-01/09-129 (12 May 2011). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-139-Corr (13 December 2011). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-140-tENG (13 December 2011). ICC, Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-01 (8 March 2011). ICC, Prosecutor v Thomas Lubanga Dyilo Judgment pursuant to Article 74 of the Statute, ICC-01/04-1/06-2842 (14 March 2012).

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ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-151 (26 March 2013). ICC, Prosecutor v Uhuru Muigai Kenyatta Prosecution application for a finding of noncompliance pursuant to Article 87(7) against the Government of Kenya, ICC-01/ 09-02/11-866-Conf-Exp (29 November 2013). ICC, Prosecutor v Uhuru Muigai Kenyatta Public redacted version of the Prosecution application for a finding of non-compliance pursuant to Article 87(7) against the Government of Kenya, ICC-01/09-02/11-866-Red (2 December 2013). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-195 (9 April 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s Application for a Finding of Non-Compliance under Article 87(7) of the Statute, ICC-01/09-02/11-982 (3 December 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Notice of Withdrawal of the Charges against Uhuru Muigai Kenyatta, ICC-01/09-02/11-983 (5 December 2014). ICC, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecutor’s Request for a Finding of Non-Compliance Against the Republic of the Sudan, ICC-02/ 05-01/09-227 (9 March 2015). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on the Withdrawal of Charges against Mr. Kenyatta, ICC-01/09-02/11-1005 (13 March 2015). ICC, Prosecutor v Uhuru Muigai Kenyatta Judgment on the Prosecutor’s appeal against Trial Chamber V(B)’s ‘Decision on Prosecution’s application for a finding of noncompliance under Article 87(7) of the Statute’, ICC-01/09-02/11-1032 (19 August 2015). ICTY, Prosecutor v Tihomir Blaskic Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, IT-94-14 (29 October 1997). UNSC Res 1583, 28 January 2005, S/RES/1583 (2005).



Other Documents

ASP, Establishment of a Study Group on Governance, 10 December 2010, ICC-ASP/9/ Res.2. ASP, Report of the Bureau on the Study Group on Governance, 22 November 2011a, ICC-ASP/10/30. ASP, Strengthening the International Criminal Court and the Assembly of States Parties, 21 December 2011, ICC-ASP/10/Res.5 at Annex, ‘Assembly Procedure Relating to Non-Cooperation’.

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ASP, Strengthening the International Criminal Court and the Assembly of States Parties, 21 November 2012, ICC-ASP/11/Res.8 at Annex.1. ASP, Study Group on Governance: Lessons Learnt: First Report of the Court to the Assembly of States Parties, 23 October 2012, ICC-ASP/11/31/Add.1. ASP, Programme budget for 2014, the Working Capital Fund for 2014, scale of assessments for the apportionment of expenses of the International Criminal Court, financing appropriations for 2014 and the Contingency Fund, 27 November 2013, ICC-ASP/12/Res.1. ASP, Report on the review of the organizational structure of the Registry Outcomes of Phase 4 of the ReVision Project Decisions on the structure of the Registry, 4 May 2015, ICC-ASP/14/18.



Online Materials

Evenson, ‘Justice for Kenya Stumbles at the ICC’, HRW, 7 January 2014, available at: www .hrw.org/news/2014/01/07/justice-kenya-stumbles-icc (last accessed 20 August 2015). ICC, ‘Report of the International Commission of Inquiry on Darfur to the SecretaryGeneral pursuant to UN Security Council Resolution 1564 (2004) of 18 September 2004’, ICC, 25 January 2005, available at: www.legal-tools.org/doc/1480de/ (last accessed 20 August 2015). ICC Press Release, ‘Kenyatta Case: ICC Trial Chamber Rejects Request for Further Adjournment and Directs the Prosecution to Indicate Either Its Withdrawal of Charges or Readiness to Proceed to Trial’, ICC, 3 December 2014, ICC-CPI20141203-PR1071, available at: www.icc-cpi.int/en_menus/icc/press%20and%20media /press%20releases/pages/pr1071.aspx (last accessed 20 August 2015). ICC Press Release, ‘ICC Pre-Trial Chamber II refers to the UNSC Sudan’s non-­ cooperation and failure to arrest Mr Abdel Raheem Hussein’, ICC, 26 June 2015, ICCCPI-20150626-PR1123, available at: www.icc-cpi.int/en_menus/icc/press%20and%20 media/press%20releases/Pages/pr1123.aspx (last accessed 20 August 2015). ICC-OTP, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the Withdrawal of Charges against Mr. Uhuru Muigai Kenyatta’, ICC, 5 December 2014, available at: www.icc-cpi.int/en_menus/icc/press%20and%20media /press%20releases/pages/otp-statement-05-12-2014-2.aspx (last accessed 22 June 15). ICC-OTP, ‘Statement to the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005)’, ICC, 12 December 2014, available at: www.icc-cpi.int /en_menus/icc/structure%20of%20the%20court/office%20of%20the%20 prosecutor/reports%20and%20statements/statement/Pages/stmt-OTP-20th-report .aspx (last accessed 20 August 2015). ICC-OTP, ‘OTP Strategic Plan 2016-2018’, ICC, 6 July 2015, available at: www.icc-cpi.int/ en_menus/icc/structure%20of%20the%20court/office%20of%20the%20

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prosecutor/reports%20and%20statements/statement/Pages/otp-rep-150708.aspx (last accessed 21 August 2015). ICC-OTP, ‘Statement to the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005)’, ICC, 29 June 2015b, available at: www.icc-cpi.int/en _menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/ reports%20and%20statements/statement/Pages/29-06-15-otp-report-unsc.aspx (last accessed 20 August 2015). Swiss Federal Department of Foreign Affairs, ‘Retreat on Strengthening the Proceedings at the International Criminal Court: Chair’s Summary’, Federal Department of Foreign Affairs, 3–5 September 2014, available at: www.eda.admin.ch/content/dam/ eda/en/documents/dfa/dfa_aussenpolitik_voelkerrecht_Chair_Summary_%20 ICC%20Retreat_en.pdf (last accessed 24 August 2015). University of Nottingham Human Rights Law Centre, ‘Expert Workshop on Cooperation and the International Criminal Court: Report’, HRLC, 18–19 September 2014, available at: www.nottingham.ac.uk/hrlc/newsholding/news-2015/cooperation-workshop -report-published.aspx (last accessed 14 August 2015). Von Hebel, ‘Registrar of the International Criminal Court, Speaking Points for the Diplomatic Briefing’, ICC, 17 2014, available at: www.icc-cpi.int/iccdocs/db/registrarremarks-24DB-17-11-2014.pdf (last accessed 21 August 2015).

The Place of Consultation in the International Criminal Court’s Approach to Complementarity and Cooperation Nicola Palmer 1 Introduction The question of how the icc can best engage with States and domestic criminal courts is one of major challenges facing the supra national institution’s future. From the initial optimism surrounding the early practice of State referrals1 to the admissibility challenges raised by Libya and Côte d’Ivoire2 and the failures in effective investigations in Kenya,3 the relationship between the Court and the States in which it hopes to encourage domestic trials and from whom it requires cooperation sits at the heart of the current issues facing international criminal justice. To examine the legal and social intricacies involved in the Court’s engagement with domestic regimes, this chapter examines the relationship between the icc’s approach to complementarity and its international cooperation regime. Such a discussion draws attention to the role and importance of the consultation clauses in the icc Statute, arguing that when engaging in these consultations the Court should endeavour to take into account the objectives that domestic courts may be trying to pursue. The argument is structured around three points. First, the chapter opens with a brief discussion of the icc’s current interpretation of the principle of complementarity, which establishes that a case will not be admissible at the international level if that same case is, or has been, genuinely investigated or prosecuted by a domestic court. It argues that in light of the icc Pre-Trial Chamber’s reading of what constitutes a case in its recent admissibility decisions, finding that it must concern the same person and substantially the same conduct, the involvement of the Court has encouraged domestic trials alongside, and in addition to, international prosecutions. 1 See Schabas, An Introduction to the International Criminal Court (Cambridge: cup, 2007) 159–160. 2 icc, Prosecutor v Simone Gbagbo Decision on the Presiding Judge of the Appeals Chamber in the appeal of the Republic of Côte d’Ivoire against the decision of Pre-Trial Chamber i entitled “Decision on Côte d’lvoire’s challenge to the admissibility of the case against Simone Gbagbo”, icc-02/11-01/12-72 (26 March 2015). 3 icc, Prosecutor v Uhuru Muigai Kenyatta Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, icc-01/09-02/11-983 (5 December 2014).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_009

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The increasing prevalence of these concurrent international and domestic trials makes equal cooperation, information sharing and consultation centrally important. Second, the chapter argues that under this current interpretation, if a State wants to exercise domestic prosecutorial discretion in choosing not to try a particular individual for conduct under investigation by the icc, increasing emphasis will have to be placed on information sharing in line with Arts. 89 and 94 icc Statute4 and the general consultation provision in Art. 97 icc Statute.5 In short, it is likely that there will continue to be concurrent domestic and international trials in response to a single set of violations and that there will need to be increasing emphasis on the Court’s cooperation provisions, with a particular emphasis on consultation between international and domestic criminal courts if States are to retain any level of prosecutorial discretion. Third, the chapter draws on extensive empirical research conducted inside the ictr, the Rwandan national courts and the gacaca localised courts. These courts offer an early example of the concurrent pursuit of domestic and international criminal trials and, as a result, constitute a useful point of reference for the on-going practice of the icc. The examination of the Rwandan courts shows that if international courts’ consultations with domestic courts are to be effective and sustainable, there is a need to take account of the legal cultures of the different institutions that accommodates the potential for domestic courts to pursue multiple objectives that may differ from those articulated at the international level. The chapter will then conclude with a brief comment on how this general insight, developed from detailed and specific ethnographic research, might offer specific guidance to the icc in its current dealings with Libya.

4 As discussed in detail in in the next section, Art. 89(4) icc Statute reads ‘If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court’. (emphasis added). Art. 94 icc Statute reads ‘If the immediate execution of a request interferes with an on-going investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon by the Court’. 5 Art. 97 icc Statute establishes that if a State Party ‘identifies problems which may impeded or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter’. It then provides a non-exhaustive list of instances where such problems might arise.

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Complementarity and Cooperation

Within the structure of the icc, the principle of complementarity is generally understood to establish the Court as a subsidiary to national jurisdictions through Art. 17 icc Statute. However, in terms of its legal content, Art. 17 icc Statute is limited to determining whether a case is admissible before the icc. Insofar as ‘complementarity’ refers to the broader interplay and division of labour between national jurisdictions and the icc, it is woven through many Articles of the icc Statute including Arts. 1, 17, 18, 19, 20, 89(4), 90, 93(10) and 94.6 While Cassese initially suggested that the principle was adopted to both encourage domestic prosecution of international crimes and to embed within the institution a level of respect for State sovereignty,7 the practice of the Court suggests that neither of these effects have been fully realised. The major outcome of complementarity has been overlapping prosecutions at the international and national levels. For a case to be admissible at the international level, the Pre-Trial Chamber of the icc must first determine whether the same case has been, or is being, investigated or prosecuted by a State with the necessary jurisdiction. In contrast to Cassese’s suggestion that complementarity would encourage the domestic prosecution of international crimes, under the current case law, at the national level, the conduct need not be charged as an international crime. However, the case must concern the same accused and ‘substantially the same conduct’,8 including partial overlap on specific factual incidents. Once the PreTrial Chamber has determined that there are domestic proceedings in the

6 Robinson, ‘Three Theories of Complementarity: Charge, Sentence, or Process’ (2012) 53 Harvard International Law Journal Online 166 at 178. 7 Cassese, Cassese’s International Criminal Law (Oxford: oup, 2003) 351. 8 icc, Prosecutor v William Samoei Ruto Henry Kiprono Kosgey and Joshua Arap Sang Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber ii of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, icc-01/09-01/11-307 (30 August 2011) at para 47: icc, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Judgment on the appeal of Libya against the decision of Pre-Trial Chamber i of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”, icc-01/1101/11-547-Red (21 May 2014) at para 72 and icc, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Judgment on the Appeal of Mr. Abdullah Al-Senussi against the decision of Pre-Trial Chamber i of 11 October 2013 entitled, “Decision on the admissibility of the case against Abdullah Al-Senussi”, icc-01/11-01/11-565 (24 July 2014) at para 75.

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same case, the icc Statute requires an examination of whether the State is either ‘unwilling or unable’9 to genuinely undertake these proceedings. Nouwen argues that the icc’s reading of what constitutes a case, while sound in terms of the icc Statute, is underpinned by a broader ‘anti-impunity’ push within the Court itself.10 The same conduct/same person test means: [I]f the icc prosecutes a person who has been or is being investigated or prosecuted domestically for different conduct, or for the same conduct but different incidents, it does not compete with the national jurisdiction; all it does is to ‘complement’ the national jurisdiction to ensure that there is less impunity.11 Robinson, in supporting the same person/same conduct reading of Art. 17 icc Statute, argues that a ‘conviction for one crime […] does not and should not legally insulate a person from future proceedings for a completely different crime’.12 When applying this interpretation of the law to instances of mass violence where an individual could be connected to multiple specific violent acts, this reading is strongly in line with Nouwen’s identification of a general antiimpunity drive. The practical outcome of this approach is that there will be increasing numbers of international and domestic criminal trials running concurrently. Such an outcome has most recently been seen in Libya where the case brought against Saif Al-Islam Gaddafi was held to be admissible at the international level because the conduct covered in the national proceeding against him were not sufficiently similar to the icc’s case against him.13 Meanwhile, the case against his co-accused Abdullah Al-Senussi was found to address sufficiently similar conduct, leaving it within the domestic jurisdiction.14 As a result,

9 Art. 17(a) icc Statute. 10 Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge: cup, 2013) 70. 11 Ibid. 12 Robinson, ‘Three Theories of Complementarity: Charge, Sentence, or Process’ (2012) supra n 6 at 179. 13 icc, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Judgment on the appeal of Libya against the decision of Pre-Trial Chamber i of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi” (2014) supra n 8 at para 72. 14 Following the Chambers reasoning on the same person/same conduct test, it then went on to find that, in line with the second stage of a complementarity assessment, Libya was neither ‘unwilling nor unable’ to genuine undertake the trial.

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concurrent cases relating to overlapping factual incidents were envisaged as to proceeding at both the national and international levels. This brings the issue of cooperation between international and domestic proceedings increasingly to the fore. Although often examined in isolation, the systems of complementarity and cooperation have important points of intersection and overlap. In its foundational structure, international criminal law is distinct from traditional approaches to public international law as it shifts the focus from State responsibility to determining individual criminal responsibility. However, the State is not completely circumvented in the structure of the icc or in the practice of international criminal law more broadly. Like the ad hoc Tribunals for Rwanda and the former Yugoslavia that came before it,15 the icc remains heavily dependent on State cooperation for the surrender of suspects and for the enabling of effective criminal investigations. As a result, Part ix icc Statute establishes the obligations of States to cooperate with the icc. The general obligation to cooperate, detailed in Art. 86 icc Statute reads: States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigations and prosecution of crimes within the jurisdiction of the Court. The first point to note is that technically this general obligation is restricted to States that are signatories to the icc Statute. However, State cooperation may still be needed from non-State Parties particularly when, as is evidenced in the current proceedings against both Sudanese and Libyan suspects, the jurisdiction of the Court has been established through unsc referral. In a detailed and illuminating discussion of differences that may arise in instances of unsc referral, Akande argues that for referrals the obligation to cooperate comes from the unsc resolution itself. This is a un Charter obligation and, as a result, ‘will prevail over any other treaty obligation, thus making it a stronger obligation than the obligations which icc states parties ordinarily have under the  Statute’.16 Consequently, the unsc has the power to impose additional obligations of cooperation beyond those of the icc Statute on referral 15 The icty and the ictr while established through unsc Res 827, 25 May 1993, S/res/827 (1993) and unsc Res 955, 8 November 1994, S/res/955 (1994) respectively, were adopted pursuant to the unsc’s Powers under Chapter vii United Nations Charter, and thus find their binding force in Art. 25 un Charter, a multi-lateral treaty. 16 Akande, ‘The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the icc’ (2012) 10 Journal of International Criminal Justice 299 at 306.

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countries. However, Akande goes on to argue that ‘it has not done so with regard to Sudan and Libya’.17 While the relevant unsc resolutions themselves only make very broad reference to the obligation to ‘co-operate fully’,18 Akande suggests that the ‘the better view is that Council has implicitly adopted the regime of the Statute into the relevant Security Council resolutions’.19 This means that for all of the current cases being tried and investigated by the icc, the cooperation clauses included in Part ix icc Statute apply. As discussed above, concurrent and overlapping international and domestic criminal cases are one clear outcome of the same person/same conduct approach to complementarity. Such concurrence brings cooperation to the fore, both with regard to the arrest and surrender of suspects and the undertaking of criminal investigations by the icc. For the current situations under icc investigation, the obligations of cooperation apply to both States that are Party to the icc Statute and those that are not. The increasing prevalence of concurrence and the reach of these obligations beyond State Parties means that increasingly the icc has to grapple with how to resolve tensions between the domestic and international proceedings when they arise. As will be discussed in the next section, one area of potential tension arises if the national courts want to pursue domestic cases that do not meet the admissibility threshold of dealing with the same person and the same conduct as those before the international court, but nonetheless concern the same individual who may in fact still be charged with international crimes. This raises an important issue for the cooperation regime and may also highlight valuable avenues in the icc Statute to actively foster equal and effective cooperation between international and domestic criminal legal proceedings. 3

Prosecutorial Discretion and Consultation

While the need for cooperation is central to the effective functioning of the icc, it is also crucial for the States themselves, particularly if they want to retain some level of domestic prosecutorial discretion. In line with the same person/same conduct approach to complementarity, if a situation is being investigated by the Court and the State subject to such investigations wishes to 17 18 19

Ibid at 312. unsc Res 1593, 31 March 2005, S/res/1593 (2005) at para 2 (on Sudan) and unsc Res 1970, 26 February 2011, S/res/1970 (2011) at para 5 (on Libya). Akande, ‘The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the icc’ (2012) supra n 16 at 309.

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avoid international proceedings, the national prosecutor will need to pursue prosecutions against the same individual for the same conduct. In trying to meet the requirement that, to quote the Gaddafi admissibility appeal, ‘the case that the State is investigating sufficiently mirrors the one that the Prosecutor is investigating’,20 a State that wants to retain jurisdiction may drag its feet on submitting an admissibility challenge despite the requirement that such a challenge is filed ‘at the earliest opportunity’.21 This may explain why it took eleven months for the Libyan Government to lodge an admissibility challenge in the case concerning Abdullah Al-Senussi, allowing Libya an opportunity to ensure that its charges against Al-Senussi reflected in its submissions to the icc sufficiently mirrored the international institution’s work.22 In supporting the Court’s current reading of complementarity, Robinson suggests that multiple trials of a single individual, if undesirable, could be dealt with through a three-stage process. An examination of this process shows the important links between complementarity and cooperation. Robinson proposes that any conflict between the Court and the relevant State can first be resolved through information sharing in line with Arts. 89 and 94 icc Statute; second, any disagreement could be addressed through the general consultation provision in Art. 97 icc Statute; and, finally, if this consultation is deemed to leave too much discretion in the hands of the icc, State Parties could amend the icc rpe to establish guidelines for consultation and sequencing decisions.23 It is important to look carefully at these Articles and their potential for realising equal and effective cooperation between international and national criminal proceedings. Art. 89 icc Statute generally concerns the surrender of persons to the Court and sub-section (4) reads: If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court. (emphasis added). 20

21 22

23

icc, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Judgment on the appeal of Libya against the decision of Pre-Trial Chamber i of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi” icc-01/11-01/11 (2014) supra n 8 at para 2 and 73. Art. 19(5) icc Statute. Heller, ‘The ptc’s Erroneous Decision Regarding the Surrender of Al-Senussi’, Opinio Juris, 15 June 2013, available at: www.opiniojuris.org/2013/06/15/the-ptcs-terrible-decision -regarding-the-surrender-of-al-senussi/ (last accessed 31 August 2014). Robinson, ‘Three Theories of Complementarity: Charge, Sentence, or Process’ (2012) supra n 6 at 181–182.

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The use of the word crime in this sub-section is slightly at odds with the wording employed with regard to cooperation and complementarity more generally as it refers to a different crime rather than a different case. In the current interpretation of admissibility before the icc, it is not required that the charges are brought as international crimes but rather that, as discussed above, they relate to the same person and substantially the same conduct. Nonetheless, it is clear from this Article that the State is obliged to grant the request but that there may be flexibility with regard to the sequencing of executing the request and the completion of the domestic proceedings or punishment. Crucially, under the icc Statute the realisation of this flexibility will have to come through a process of consultation. Art. 94 icc Statute is similarly amenable to enabling consultation on the sequencing of international and domestic trials. It reads: If the immediate execution of a request would interfere with an on-going investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon by the Court. While enabling some level of consultation that could allow domestic trials or resultant punishment to conclude, these Articles appear to still require surrender of the suspect to the icc. For Akande, ‘Article 94 ought not to be interpreted as permitting suspension of the obligation to surrender to the icc’.24 The icc proceedings are not frozen as they would be under Art. 95 icc Statute when there is an on-going admissibility challenge and ‘[i]n that context, there seems to be no reason to allow the state to suspend its obligation of surrender, especially where the national investigation is for a lesser crime’.25 Following this reading, it is really only in Art. 97 icc Statute that consultations may enable an exclusive domestic trial. The general consultation provision under Art. 97 icc Statute establishes that if a State Party ‘identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court’. The Article then goes on to provide a non-exhaustive set of examples of when such problems might arise. As Robinson suggests, this consultation clause could be used by both States and the icc to agree on the sequencing of trials and could also take into account domestic prosecutorial decisions that have already been made. It is important to note that, within this structure, the legal power rests mostly with 24 25

Akande, ‘The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the icc’ (2012) supra n 16 at 322. Ibid at 323.

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the Court, although, as noted, the Court itself depends on State cooperation and so in practice the negotiating power of the State is significantly bolstered. In short, under the ICC Statute, States can negotiate with the Court if they want to prosecute an individual for different conduct or elect not to try an individual after an initial investigation, as an exercise of prosecutorial discretion. What becomes increasingly clear is that despite a shift from the primacy of the ictr and the icty to complementarity under the icc, responses to international crime continue to concern overlapping criminal trials conducted at both a domestic and international level, driven most strongly by the exercise of prosecutorial discretion at the international level. Continued contact between multiple institutions is a necessary and on-going reality that has been given legal effect. In the current literature, consultation between the icc and the State is identified as the major mechanism through which to resolve points of conflict. However, as discussed in the next section, an examination of the Rwandan post-genocide courts suggests that, once inside the institutions, the work of the courts is often driven by different objectives, heightening the possibility of misunderstanding and failures in effective cooperation. The national courts may ascribe a different set of values and meaning to the cases they are investigating from those ascribed to the international proceedings and, based on the present author’s examination of the interactions between the ictr and the Rwandan domestic proceedings, this will fundamentally shape how these consultations will proceed. The following section argues that consultation will best serve both parties if it is used to open an avenue through which the Court may more effectively engage with the objectives driving the domestic courts. A willingness inside the icc to seek to understand, accommodate or take account of different objectives underpinning the State’s prosecutorial decisions will aid these consultations, however this requires openness within the Court to engage with the plural legal cultures that operate in domestic environments. 4

Pluralism, Legal Culture and the Process of Consultation

In 1999 Sally Falk Moore wrote a seminal article in which she argued that pluralism was the future of legal anthropology. Moving away from the field’s early roots in ‘rationalizing’ indigenous practice and going beyond understanding law as culture or as a form of domination, pluralism enabled an examination of the interactions among ‘semi-autonomous social fields’.26 This notion of 26

Falk Moore, ‘Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949–1999’ (2001) 7 The Journal of the Royal Anthropological Institute 95 at 110.

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pluralism offers a unique and increasingly supported methodology27 to look at criminal law as it is practised above, below and by the State. In earlier work, the present author examined the interactions among the international, national and localised criminal courts in post-genocide Rwanda.28 These post-genocide courts, in pursuing concurrent domestic and international criminal trials, provide a useful point of reference for the on-going practice of the icc. It was argued that although the post-genocide courts are compatible in law, an interpretive cultural analysis,29 in line with the sociological work of David Garland,30 shows how and why they have often conflicted in practice. The research draws on 182 interviews with Judges, lawyers and a group of witnesses and suspects within the ictr, the national Rwandan courts and the gacaca community courts. This empirical material shows that the Judges and lawyers in the three institutions offer notably different interpretations of their work, illuminating divergent legal cultures that help explain the courts’ failures in effective cooperation and evidence gathering. This empirical work showed that the ictr has been principally concerned with the development of international criminal case law, while, inside Rwanda, the national courts purport to have focused on internal judicial reform and improvements in legal educational standards and the personnel inside gacaca see their central contribution as having been towards obtaining a better local understanding of the conflict. It is arguable that the three courts could still have a complementary impact on justice with the ictr contributing to a global legal order, the national courts to the development of domestic judicial capacity and gacaca to providing a local mechanism of truth-telling and accountability. However, once inside the courts, it becomes apparent that how one process is justified affects how the others are viewed and understood. How the courts understand their own work elucidates aspects of each institution’s legal culture. It is within this specific legal culture that the work of the other courts is assessed, impacting the way in which all three of institutions interact with one another. These instances of interaction were numerous and included the

27

See e.g. van Sliedregt and Vasiliev (eds), Pluralism in International Criminal Law (Oxford: oup, 2014). 28 Palmer, Courts in Conflict: Interpreting the layers of justice in post-genocide Rwanda (Oxford: oup, 2015). 29 The method deployed drew strongly on Clifford Geertz’ writing on culture and interpretation; Geertz, ‘Thick Description: Toward an Interpretive Theory of Culture’ in Geertz (ed), The Interpretation of Cultures: Selected Essays (London: Fontana Press, 1993) 3. 30 Garland, Punishment and Modern Society: A Study in Social Theory (Oxford: oup, 1990).

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transfer of suspects between jurisdictions and the use of evidence brought before one court that was then introduced in the proceedings of another. A brief discussion of the transfer of suspects from the ictr to the Rwandan national courts offers a useful means of illustrating how consultation between international and domestic courts could be enhanced if there is the will within international courts to understand how domestic court practitioners are making sense of their own legal practice. In an effort to accelerate the ictr’s completion strategy while ensuring that the domestic courts had an adequate legal framework to prosecute international crimes and the capacity to provide suitable fair trial guarantees, Rule 11 bis ictr rpe was amended. The goal was to enable the transfer of the cases of individuals already indicted by the ictr ‘to competent national jurisdictions, as appropriate, including Rwanda’.31 While inside the ictr the Rule 11 bis ictr rpe decisions were seen as an opportunity to foster the domestic application of international criminal law, from interviews inside of the national courts, it became increasingly clear that for the Rwandan prosecutors, the pursuit of the transfer of cases to Rwanda was driven by their aim of affirming, to an external audience, their domestic legal capacity. The national prosecutors saw judicial reform and improved legal education standards as their major contribution to the post-genocide period. Consistent with this ascription of meaning to their work, they did not pursue the transfer of cases because it would enable them to apply the procedural standards, including those relating to witness protection and legal definitions of international crimes developed through the ictr’s case law. The Rwandan prosecutor’s approach to the request for the transfer of cases clearly showed a strong assumption held among the Rwandan Judges and lawyers that the ictr both should and would support domestic capacity building. In the words of one of the prosecutors interviewed: The ictr has attempted to play a supervisory role. If you can go on the record to say that Rwanda cannot be trusted, it is your biggest failure. It was their role to build the system. If they did not meaningfully engage with Rwanda and help our system to grow, then their legacy is meaningless.32 This influenced both how Rwanda engaged with the Rule 11 bis ictr rpe proceedings and some of the major challenges now facing those domestic trials. The initial transfer requests were refused, with the decisions centring on 31 32

unsc Res 1503, 28 August 2003, S/res/1503 (2003) at 2. Interview with National Prosecutor (Participant 9) Parquet Général (Kigali, Rwanda 5 September 2008), notes on file with author.

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concerns about the statutory periods of detention and the conditions of incarceration and the finding that defence witnesses would be too frightened to testify in domestic proceedings.33 After changes to the law and an introduction of a witness protection scheme designed to enable the anonymous testimony,34 the next set of transfer requests was upheld and Jean Uwinkindi was the first ictr suspect to be sent to Rwanda to stand trial in the High Court in Kigali.35 In this domestic sphere the issues of witness protection, to which such careful attention had been drawn, played out in unexpected ways. According to the ictr monitoring reports during Uwinkindi’s trial, the accused’s counsel has argued that prosecution witnesses should not automatically be able to testify under a pseudonym, stressing that ‘as a principle, all hearings should be public’36 and that ‘[b]ecause public hearings are the rule and protective measure the exception, the witnesses should be required to show why they fear testifying in public’.37 This is consistent with the emphasis on open testimony in gacaca but is inconsistent with the argumentation in the Rule 11 bis ictr rpe decisions, which centred on ensuring that witnesses

33

34

35 36 37

ictr, Prosecutor v Yussuf Munyakazi Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11 bis, ictr-97-36-R11bis (8 October 2008); ictr, Prosecutor v Jean-Baptiste Gatete Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, ictr-2000-61-R11bis (17 November 2008); ictr, Prosecutor v Ildephonse Hategekimana Decision on the Prosecutor’s Request for the Referral of the case of Ildephonse Hategekimana to Rwanda, ictr-00-55B-R11bis-T (19 June 2008); ictr, Prosecutor v Ildephonse Hategekimana Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11 bis, ictr-00-55B-R11bis (4 December 2008); ictr, Prosecutor v Gaspard Kanyarukiga Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11 bis, ictr-2002-78-R11bis (30 October 2008) and ictr, Prosecutor v Fulgence Kayishema Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, ictr-01-67-R11bis (22 February 2012). Rwanda, Organic Law No. 66/2008 of 21 November 2008 modifying and complementing Organic Law No. 31/2007 of 25 July 2007 relating to the Abolition of the Death Penalty. This law had been passed before Hategekimana’s appeal hearing, however it was not yet in force. The Appeals Chamber held that, ‘should this new law enter into force in its current form, the ambiguity as to the applicable punishment for transfer cases […] would be resolved’. Ibid, ictr, Prosecutor v Ildephonse Hategekimana Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11 bis (2008) at para 38. ictr, Prosecutor v Jean Uwinkindi Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, ictr-2001-75-R11bis (28 June 2011). un Mechanism for International Criminal Tribunals, Prosecutor v Jean Uwinkindi Monitoring Report June 2014, mict-12-25 (16 July 2014) at para 11. Ibid at para 20.

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would be able to testify under pseudonyms, in line with ictr practice.38 The Rule 11 bis ictr rpe decisions can be coherently read in light of the ictr’s interpretations of its own work. However, the decisions sit less comfortably with the understood objectives of the transferred cases as interpreted inside of the national courts. A closer engagement, through consultation, with the Judges, lawyers and lay-Judges involved in both the Rwandan national courts and the gacaca courts on what the courts were trying to achieve would have led to better informed legal decision-making and more effective domestic legal practices. The potential for similar competition between domestic and international justice processes is possible under the current practice of complementarity and cooperation under the icc. However, this competition can be mitigated through increased communication between different justice systems and one of the legal avenues through which such communication could be realised is through the consultation provisions discussed in this chapter. A return to the Libyan cases further highlights why this is beneficial and, in practical terms, absolutely necessary for the on-going practice of the icc. Libya is currently in a state of crisis and civil war. There has been a collapse of central government authority with increasingly violent militia engaged in direct combat. The result has been a large numbers of civilian casualties, huge levels of displacement contributing to a rise in migrant boats departing for Europe alongside damaged medical facilities and civilian infrastructure. icc involvement in the country remains fraught with the country’s continual refusal or indeed inability to surrender Saif Al-Islam Gaddafi despite the unsc resolution requiring cooperation and an outstanding icc request to hand him over. This has been coupled with repeated calls from hrw to extend icc investigations to look at allegations of on-going war crimes in the country.39 Most recently there has been widespread criticism of the death sentences handed down to both Gaddafi and Al-Senussi by a Tripoli court. These domestic sentences were rendered subsequent to the outbreak of civil war in July 2014, at a  time when the Libya Dawn militias were in control of the trial process following their capture of the capital city resulting in the internationally recog-

38

39

For a discussion of the use of anonymity as the major mechanisms of witness protection see Sluiter, ‘The ictr and the Protection of Witnesses’ (2005) 3 Journal of International Criminal Justice 962. hrw, ‘Libya: New icc Investigations Needed Amid Crisis’, hrw, 11 May 2015, available at: www .hrw.org/news/2015/05/11/libya-new-icc-investigation-needed-amid-crisis (last accessed 14 May 2015).

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nised government fleeing to eastern Libya.40 However, in the initial wake of Muammar Gaddafi’s regime there was some support for the icc to defer to the Libyan domestic proceedings. These claims were generally framed very broadly and would have benefitted from more specificity. Mégret, in discussing the Libyan case and arguing that due process consideration should only come into admissibility determinations when the process is ‘so flawed as to not be a trial at all’,41 claimed that ‘there is an inherent value in local trials, particularly in a transitional context […] Local trials maximise deterrence, encourage a sense of ownership about transitional justice, and greatly facilitate the administration of justice’.42 These are broad assertions that may or may not apply in a specific country context. In Libya, the initial trials could equally have been understood as a way for the new government that came to power in late 2011 to engage in claims to statehood, in their efforts to assert that they had effectively established territorial control – a crucial claim to future stability that, as the violence continues to escalate, becomes harder if not impossible to sustain. Taking seriously the consultation provisions already available in the icc Statute can enable a more informed and country-specific engagement with what the national courts may be trying to achieve, facilitating a more equal exchange with the icc that is responsive to the rapid changes in the domestic environment. With a longer timeframe in mind, placing emphasis on these consultations when arranging the surrender of suspects, the sequencing of trials and, at the extreme, determining whether only a domestic trial will proceed despite a case being admissible before the icc, will have enormous benefits for how the Court is then able to have on-going cooperation with the States in which international crimes are committed. 5 Conclusion For several years now, scholars have proposed that the future of international criminal law lies in its domestic application.43 The practice of the icc and 40

41 42 43

Stephen, ‘Gaddafi’s son Saif al-Islam sentenced to death by court in Libya’, The Guardian, 28 July 2015, available at: www.theguardian.com/world/2015/jul/28/saif-al-islam-sentenced -death-by-court-in-libya-gaddafi-son (last accessed 17 August 2015). Mégret, ‘Holding the Line on Complementarity in Libya: The case for tolerating flawed domestic trials’ (2013) 11 Journal of International Criminal Justice 571 at 573. Ibid at 577. See e.g. Nollkaemper, National courts and the international rule of law (Oxford: oup, 2012) and Bekou, ‘Crimes at Crossroads: Incorporating International Crimes at the National Level’ (2012) 10 Journal of International Criminal Justice 677.

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specifically the Court’s current approach to complementarity means that international trials are likely to be accompanied by domestic trials for overlapping incidents of violence. This chapter argues that consultation, as included in the current cooperation clauses of the icc Statute, offers the potential for domestic and international courts to reach shared understandings. In drawing on empirical work conducted inside of Rwanda’s post-genocide courts, this chapter shows that these consultations will best be realised if the icc is willing and able to take seriously and fully appreciate the variety of objectives the domestic courts may be trying to achieve. List of References Books and Journals

Akande, ‘The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC’ (2012) 10 Journal of International Criminal Justice 299. Bekou, ‘Crimes at Crossroads: Incorporating International Crimes at the National Level’ (2012) 10 Journal of International Criminal Justice 677. Cassese, Cassese’s International Criminal Law (Oxford: OUP, 2003). Falk Moore, ‘Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949– 1999’ (2001) 7 The Journal of the Royal Anthropological Institute 95. Garland, Punishment and Modern Society: A Study in Social Theory (Oxford: OUP, 1990). Geertz, ‘Thick Description: Toward an Interpretive Theory of Culture’ in Geertz (ed), The Interpretation of Cultures: Selected Essays (London: Fontana Press, 1993) 3. Mégret, ‘Holding the Line on Complementarity in Libya: The case for tolerating flawed domestic trials’ (2013) 11 Journal of International Criminal Justice 571. Nollkaemper, National courts and the international rule of law (Oxford: OUP, 2012). Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge: CUP, 2013). Palmer, Courts in Conflict: Interpreting the layers of justice in post-genocide Rwanda (Oxford: OUP, 2015). Robinson, ‘Three Theories of Complementarity: Charge, Sentence, or Process’ (2012) 53 Harvard International Law Journal Online 166. Schabas, An Introduction to the International Criminal Court (Cambridge: CUP, 2007). Sluiter, ‘The ICTR and the Protection of Witnesses’ (2005) 3 Journal of International Criminal Justice 962. van Sliedregt and Vasiliev (eds), Pluralism in International Criminal Law (Oxford: OUP, 2014).

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Legal Cases and United Nations Documents

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ICC, Prosecutor v William Samoei Ruto Henry Kiprono Kosgey and Joshua Arap Sang Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, ICC-01/09-01/11-307 (30 August 2011). ICC, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”, ICC-01/1101/11-547-Red (21 May 2014). ICC, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Judgment on the Appeal of Mr. Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled, “Decision on the admissibility of the case against Abdullah Al-Senussi”, ICC-01/11-01/11-565 (24 July 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, ICC-01/09-02/11-983 (5 December 2014). ICC, Prosecutor v Simone Gbagbo Decision on the Presiding Judge of the Appeals Chamber in the appeal of the Republic of Côte d’Ivoire against the decision of PreTrial Chamber I entitled “Decision on Côte d’lvoire’s challenge to the admissibility of the case against Simone Gbagbo”, ICC-02/11-01/12-72 (26 March 2015). ICTR, Prosecutor v Gaspard Kanyarukiga Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11 bis, ICTR-2002-78-R11bis (30 October 2008a). ICTR, Prosecutor v Ildephonse Hategekimana Decision on the Prosecutor’s Request for the Referral of the case of Ildephonse Hategekimana to Rwanda, ICTR-00-55BR11bis-T (19 June 2008). ICTR, Prosecutor v Ildephonse Hategekimana Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11 bis, ICTR-00-55B-R11bis (4 December 2008). ICTR, Prosecutor v Jean-Baptiste Gatete Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, ICTR-2000-61-R11bis (17 November 2008). ICTR, Prosecutor v Yussuf Munyakazi Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11 bis, ICTR-97-36-R11bis (8 October 2008). ICTR, Prosecutor v Jean Uwinkindi Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, ICTR-2001-75-R11bis (28 June 2011). ICTR, Prosecutor v Fulgence Kayishema Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, ICTR-01-67-R11bis (22 February 2012). UN Mechanism for International Criminal Tribunals, Prosecutor v Jean Uwinkindi Monitoring Report June 2014, MICT-12-25 (16 July 2014). UNSC Res 827, 25 May 1993, S/RES/827 (1993). UNSC Res 955, 8 November 1994, S/RES/955 (1994).

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UNSC Res 1503, 28 August 2003, S/RES/1503 (2003). UNSC Res 1593, 31 March 2005, S/RES/1593 (2005). UNSC Res 1970, 26 February 2011, S/RES/1970 (2011).



Other Documents



Online Materials

Interview with National Prosecutor (Participant 9) Parquet Général (Kigali, Rwanda 5 September 2008) notes on file with author. Rwanda, Organic Law No. 66/2008 of 21 November 2008 modifying and complementing Organic Law No. 31/2007 of 25 July 2007 relating to the Abolition of the Death Penalty.

Heller, ‘The PTC’s Erroneous Decision Regarding the Surrender of Al-Senussi’, Opinio Juris, 15 June 2013, available at: www.opiniojuris.org/2013/06/15/the-ptcs-terrible -decision-regarding-the-surrender-of-al-senussi/ (last accessed 31 August 2014). HRW, ‘Libya: New ICC Investigations Needed Amid Crisis’, HRW, 11 May 2015, available at: www.hrw.org/news/2015/05/11/libya-new-icc-investigation-needed-amid-crisis (last accessed 14 May 2015). Stephen, ‘Gaddafi’s son Saif al-Islam sentenced to death by court in Libya’, The Guardian, 28 July 2015, available at: www.theguardian.com/world/2015/jul/28/saif-al -islam-sentenced-death-by-court-in-libya-gaddafi-son (last accessed 17 August 2015).

Cooperation and the International Criminal Court: The Freezing, Seizing and Transfer of Assets for the Purpose of Reparations Carla Ferstman 1 Introduction Reparation to victims is an important innovation of the icc Statute. Art. 75 icc Statute enables the icc to award reparations to victims who suffered harm as a result of the acts of a convicted perpetrator. Reparations can be individual or collective or both, and may take the form of, inter alia, restitution, compensation and/or rehabilitation.1 At the time of writing, the icc has awarded reparations in respect of victims following the conviction of Thomas Lubanga Dyilo. The Trial Chamber issued a decision on the principles and the process to be implemented for reparations to victims in that case in 2012,2 and in March 2015, the Appeals Chamber issued its judgment on the appeals against that decision.3 A second reparations process was also underway in the Germain Katanga case, following his conviction on 7 March 20144 and sentence on 23 May 2014.5 On 15 December 2014, the Registry filed a report on the applications for reparations that had been received in the Katanga case.6 Subsequently, the Trial Chamber set a deadline for interested States or other interested persons

1 Art. 75(1) icc Statute. 2 icc, Prosecutor v Thomas Lubanga Dyilo Decision establishing the principles and procedures to be applied to reparations, icc-01/04-01/06 (7 August 2012). 3 icc, Prosecutor v Thomas Lubanga Dyilo Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with amended order for reparations (Annex A) and public annexes 1 and 2, icc-01/04-01/06-3129 (3 March 2015). 4 icc, Prosecutor v Germain Katanga Jugement rendu en application de l’article 74 du Statut, icc-01/04-01/07-3436 (7 March 2014). 5 icc, Prosecutor v Germain Katanga Décision relative à la peine (article 76 du Statut), icc01/04-01/07-3484 (23 May 2014). 6 icc, Prosecutor v Germain Katanga Registry Report on Applications for Reparations in accordance with Trial Chamber ii’s Order of 27 August 2014, icc-01/04-01/07-3512 (15 December 2014).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_010

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to apply for leave to file submissions relating to reparations,7 which was thereafter extended.8 The icc Appeals Chamber has made clear: A convicted person’s liability for reparations must be proportionate to the harm caused and, inter alia, his or her participation in the commission of the crimes for which he or she was found guilty, in the specific circumstances of the case.9 The Appeals Chamber also determined that indigence is not an obstacle to the imposition of liability for reparations on the convicted person, because the assets of the convicted perpetrator may in principle be located and seized at some future date.10 These are important statements of principle, and make clear that, to the extent possible, the icc understands its role as far more than symbolic; the obligation of a convicted perpetrator to afford reparations to victims is understood in much the same way as States’ obligations to make reparations for the injury caused by internationally wrongful acts including violations of human rights. The jurisprudence and relevant international principles concerning State responsibility affirm that the quantum and/or quality of reparations must reflect the harm caused and adequately redress the suffering of victims.11 The icc Appeals Chamber’s holding that reparations need to be proportionate to the harm is perhaps both a blessing and a curse. It makes clear that the icc understands its role in reparations as larger, or more significant, than

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icc, Prosecutor v Germain Katanga Scheduling order for interested States or other interested persons to apply for leave to file submissions pursuant to Article 75 of the Statute, icc-01/04-01/07-3516 (21 January 2015). icc, Prosecutor v Germain Katanga Order extending the deadline for interested States and other interested persons to apply for leave to file submissions pursuant to Article 75 of the Statute, icc-01/04-01/07-3518 (2 February 2015). icc, Prosecutor v Thomas Lubanga Dyilo Appeals Chamber Judgment (2015) supra n 3 at para 118. Ibid at paras 102–105. See e.g. Permanent Court of International Justice, The Factory at Chorzow (Claim for Indemnity) (The Merits) (Germany v Poland), Judgment, 13 September 1928 at para 73; unga, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (un Basic Principles and Guidelines) adopted by ga Res 60/147, 21 March 2006, A/res/60/147.

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merely providing symbolic gestures or charity to eligible victims.12 But at the same time, it underscores the importance of the icc’s cooperation regime for the tracing, freezing, seizing and eventual transfer of assets for the benefit of reparations. If that cooperation regime works, then the icc’s proportionate reparations awards have a chance of being enforced, at least in those instances when there are assets to be had and the perpetrators are not impecunious. If the cooperation regime fails, then the ambitions of the icc in regards to reparations risk being incapable of realising their full potential.13 Reparations awards might end up being another form of ‘lip-service’ to victims. The asp noted in its Resolution on Victims and affected communities, reparations and Trust Fund for Victims adopted in December 2014, that as ‘the identification, tracing and freezing or seizure of any assets of the convicted person are indispensable for reparations, it is of paramount importance that all necessary measures are taken to that end’.14 This is further underscored in its Resolution on cooperation adopted at the same time.15 This chapter outlines what the cooperation regime for the recovery of property and assets looks like, how it is supposed to work and how it works in practice. With respect to the Court’s practice, some of the filings and orders issued by the Court remain confidential. As such, it can be difficult to piece together a clear picture of what has happened and why. However, increasingly, there is a practice of de-classifying documents once the need for their confidentiality ceases. Thus, albeit with some delay, the Court’s approach to assets and related orders is slowly becoming more apparent. To date, it is probably fair to say that the regime has under-performed, for a combination of reasons. Sometimes, property or assets of accused persons have simply not been located because the persons are impecunious; there are no assets to be found. This has been the case with respect to Thomas Lubanga 12

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See, in contrast, the approach taken by the Trial Chamber in the Lubanga case, which took a much more restricted approach to reparations. icc, Prosecutor v Thomas Lubanga Dyilo Decision establishing the principles and procedures to be applied to reparations (2012) supra n 2. Certainly, the icc’s Trust Fund for Victims in the exercise of its full discretion may apply its voluntary resources to aid in the implementation of a reparations award, particularly where a convicted perpetrator is indigent. However, as has been determined by the Appeals Chamber in the Lubanga case, the trust fund is not obliged to use its funds in this way. See, icc, Prosecutor v Thomas Lubanga Dyilo Appeals Chamber Judgment (2015) supra n 3 at paras 111–114. asp, Resolution on “Victims and affected communities, reparations and Trust Fund for Victims”, 17 December 2014, icc-asp/13/Res.4 at para 10. asp, Resolution on cooperation, adopted 17 December 2014, icc-asp/13/Res.3 at para 22.

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Dyilo, the first person to be convicted by the Court, and, as argued by the Registry, is likely to be the norm:16 ‘[t]he situation where the accused had no assets for reparations [is] considered the normal situation; the situation where he had sufficient funds available, the exception’.17 However, in many other instances, assets have not been successfully located for arguably other reasons that the Court can progressively work to address and/or States have not adequately or sufficiently cooperated with requests for the location and freezing of assets, as they are required to do. The reasons for these latter failings stem from: i) ii)

The weak statutory framework with vaguely articulated State obligations, particularly in respect of pre-conviction precautionary measures. Inadequate cooperation by States. Many State Parties have failed to set up the necessary domestic structures, appoint focal points to deal with eventual requests and remove legal or procedural barriers to cooperation, including restrictive banking secrecy laws which might operate at the domestic or inter-State level. The failure to adequately and proactively address these areas has meant that the ground is not prepared for States to comply with cooperation requests that concern assets if and when those requests are made. Also, States’ responses to actual requests that have been made to date have invariably, though with some notable exceptions, been weak, too slow or ineffectual. The asp has underscored the importance of, and called on all State Parties to put in place and further improve, ‘effective procedures and mechanisms that enable States Parties and other States to cooperate with the Court in relation to the identification, tracing and freezing or seizure of proceeds, property and assets as expeditiously as possible’.18 In the Lubanga case, the Pre-Trial Chamber highlighted: [E]xisting technology makes it possible for a person to place most of his assets and moveable property beyond the Court’s reach in only a few days. Therefore, if assets and property are not seized or frozen at the time of the execution of a

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icc, Prosecutor v Thomas Lubanga Dyilo Second Report of the Registry on Reparations, icc‐01/04‐01/06‐2806 (1 September 2011) at paras 10 and 21. Ibid at para 128. asp, Resolution on cooperation (2014) supra n 15 at para 23.

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cooperation request for arrest and surrender, or very soon thereafter, it is likely that the subsequent efforts of the PreTrial Chamber, the Prosecution or the victims participating in the case will be fruitless.19 iii) Inadequate attention and resources deployed to advance the issue and promote State cooperation by those Court organs with the mandate to so engage – the OTP, the Registry and the Presidency. There is some indication that these areas are being increasingly prioritised; however, to date, this has only produced minimal and piecemeal results. There is also a cyclical problem of cross-blaming, with a tendency for certain States to disparage the Court for imprecise or inadequately-worded cooperation requests, which then impede them from cooperating effectively and for Court organs to place emphasis on States’ failures to progress national or transnational investigations, which arguably States are better placed to undertake. For instance, in 2011, the Court reminded: [I]n some instances, the Court is not in possession of such required specific information regarding assets allegedly held by suspects on their territory and urges States Parties to complete to the extent possible the information contained in these requests which they may be able to access through national investigations.20 In 2012, a workshop was organised by the Bureau of the asp Facilitator for Cooperation, in collaboration with the Court, on the subject of cooperation between the Court and States with a special focus on requests for assistance in identification, freezing and seizing of assets and property. This workshop produced a number of practical recommendations to the Court as well as States to improve the prospects for the enforcement of cooperation requests.21 19

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icc, Prosecutor v Thomas Lubanga Dyilo Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58, Annex ii, icc-01/04-520-Anx2 (10 February 2006) at para 151. asp, Report of the Court on cooperation, 18 November 2011, icc-asp/10/40 at para 34. icc, Summary of the 1 October 2012 workshop on cooperation, including proposals and suggestions from the participants in asp, Report of the Bureau on cooperation, 23 October 2012, icc-asp/11/28, Annex 2.

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iv) Art. 87(7) icc Statute provides: Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council. In the Kenyatta case, the Court has determined: [N]on-compliance arising from, inter alia, unjustified inaction or delay, or a clear failure to have in place appropriate procedures for effecting the cooperation, as required under Article 88 of the Statute, constitutes failure to comply under Article 87(7) of the Statute which may, depending upon the circumstances, warrant a finding of non-compliance and concomitant referral under the same article. The approach of the relevant State during the cooperation process, as well as of the party seeking a finding under Article 87(7) of the Statute, may be of particular importance in finding whether there has been the standard of good faith cooperation required from State Parties.22 However, because of the vaguely worded State obligations in respect of the recovery of property and assets, it has been difficult to identify clear instances in which a State Party has objectively failed to cooperate, and thus neither have icc Chambers identified nor has the asp deployed any political tools to respond to instances of non-cooperation in respect of requests pertaining to assets (unlike the actions, albeit limited, that have been taken to address the problem of States’ failure to cooperate with the Court on the enforcement of arrest warrants and surrenders to the Court of accused persons).23

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icc, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, icc-01/09-02/11-982 (3 December 2014) at para 42. See e.g. asp, Report of the Bureau on non-cooperation, 5 December 2014, icc-asp/13/40, which deals exclusively with cases of non-surrender.

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Far too limited engagement by most victims’ legal representatives to pursue assets. Under the statutory framework it is the otp that is tasked with the investigation of the property and assets of accused persons. Nonetheless, legal representatives for victims could do more to press the Prosecutor to act or to encourage the relevant chamber to issue cooperation requests on its motion.

The chapter considers some of these failings and also sets out the possible ways in which to strengthen the asset recovery regime, taking into account the many constraints. 2

International Criminal Court Statute Framework

The icc Statute and the associated icc rpe outline a framework for the recovery of assets and property for the purposes of reparations to victims. State Parties are obligated to cooperate in the ‘identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture’.24 As will be described, this framework lacks clarity in many areas, which can impact on the effectiveness of requests to States and the capacity for their enforcement. A Precautionary Measures The ability for courts themselves, or States collaborating with them, to locate, freeze and seize assets of accused persons on a precautionary or provisional basis is a vital opportunity to safeguard assets for eventual reparations proceedings. Sometimes, such procedures are designed to help secure custody over suspects who remain at large on the basis that curtailing them from accessing their own funds will force them into the open or encourage them to surrender. The property and assets that are frozen might eventually be used to contribute to the costs of defence, property may be returned to the rightful owners and in some instances the assets may be used to fund reparations to victims. Art. 57(3)(e) icc Statute enables the Court to issue a request to States to take protective measures including freezing an accused person’s assets for the purpose of forfeiture, in particular for the ultimate benefit of victims. The provision makes specific reference to Art. 93(1)(k) icc Statute, indicating that 24

Art. 93(1)(k) icc Statute.

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protective measures under Art. 57(3)(e) icc Statute are made ‘pursuant to’ Art. 93(1)(k) icc Statute. Rule 99(1) icc rpe specifies: The Pre-Trial Chamber, pursuant to article 57, paragraph 3(e), or the Trial Chamber, pursuant to article 75, paragraph 4, may, on its own motion or on the application of the Prosecutor or at the request of the victims or their legal representatives who have made a request for reparations or who have given a written undertaking to do so, determine whether measures should be requested. These provisions are of critical importance to the realisation of reparations awards, in those instances where there are assets and they are traceable. However, the wording of Art. 93(1)(k) icc Statute refers to ‘[t]he identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties’. This would at first sight suggest that, different from the clearer framework for post-conviction enforcement,25 the precautionary measures are aimed at proceeds of crime, not simply assets for eventual victims. To interpret Art. 93(1)(k) icc Statute as requiring a link to proceeds of crime is to place a heavy evidential burden, which must be met before any assets will be frozen. In order for assets to be considered proceeds of crime, there would normally need to be evidence that the assets are ‘ill-gotten gains’ that were procured through the criminal activity of the accused person. This is a usual evidential burden for forfeiture proceedings, given that, if convicted, perpetrators would not be able to keep the ill-gotten gains; the assets would be confiscated. But arguably it is an overly onerous burden for the freezing of assets for the ultimate benefit of victims, given that an order for reparations is akin to a civil debt against a convicted perpetrator – there is no need for the convicted perpetrator to satisfy that judgment through ill-gotten gains; the judgment can be satisfied by any assets belonging to the perpetrator. Despite the wording of Art. 93(1)(k) icc Statute, so far Chambers have taken an expansive view of the meaning of the provision. Chambers have included in, referred to, or annexed to arrest warrants, requests to States that they trace, freeze or seize the assets of persons named in those warrants,26 without 25

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Art. 75(4) icc Statute. See also Donat-Cattin, ‘Article 75’ in Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court. Observers’ notes, Article by Article (Baden-Baden: Nomos, 1999) 966. See e.g. icc, Prosecutor v Thomas Lubanga Dyilo Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58 (2006) supra n 19; icc, Prosecutor v Germain Katanga

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requiring a link to the proceeds or instrumentalities of crimes. In addition, Chambers have issued separate requests to States to trace or freeze assets,27 also without requiring such a restrictive nexus. However the issue is not free from debate. The interpretation of Art. 57(3)(e) icc Statute arose in a number of cases, including in the Lubanga28 and Kenyatta29 cases. In the Lubanga case, when determining whether it could seek the cooperation of State Parties to take protective measures for the purpose of securing the enforcement of a future reparation award pursuant to Art. 57(3)(e) icc Statute, the Pre-Trial Chamber noted: [A]lthough a first reading of article 57 (3) (e) of the Statute might lead to the conclusion that cooperation requests for the taking of protective measures under such a provision can be aimed only at guaranteeing the enforcement of a future penalty of forfeiture under article 77 (2) of the Statute, the literal interpretation of the scope of such provision is not clear, because of the reference to the ‘ultimate benefit of the victims’.30 Not only does the Pre-Trial Chamber affirm the importance of making swift requests in order to avoid the dissipation of property or assets, nowhere in the decision does the Pre-Trial Chamber limit the subject matter to the proceeds or instrumentalities of crime.

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Order on the execution of the warrant of arrest against Germain Katanga, icc-01/0401/07-54-tENG (5 November 2007). See, e.g. icc, Prosecutor v Thomas Lubanga Dyilo Request to States Parties to the Rome Statute for the Identification, Tracing and Freezing or Seizure of the Property and Assets of Mr Thomas Lubanga Dyilo, icc-01/04-01/06-62-tEN (31 March 2006); icc, Prosecutor v Germain Katanga Request to the Democratic Republic of the Congo for the Purpose of Obtaining the Identification, Tracing, Freezing and Seizure of the Property and Assets of Germain Katanga, icc-01/04-01/07-7-tENG 07-11-2007 (6 July 2007); icc, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision Ordering the Registrar to Prepare and Transmit a Request for Cooperation to the Republic of Kenya for the Purpose of Securing the Identification, Tracing and Freezing or Seizure of Property and Assets of Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, icc-01/09-02/11-42 (5 April 2011). icc, Prosecutor v Thomas Lubanga Dyilo Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58, Annex ii (2006) supra n 19. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on the implementation of the request to freeze assets, Trial Chamber v(B), icc-01/09-02/11 (8 July 2014). icc, Prosecutor v Thomas Lubanga Dyilo Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58 (2006) supra n 19 at para 146.

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In the Kenyatta case, in 2011, Pre-Trial Chamber i had ordered the Registrar to prepare and transmit a request for cooperation to the competent authorities of the Republic of Kenya for purposes of identifying, tracing and freezing or seizing the property and assets belonging to or under the control of Kenyatta. At a much later stage before the Trial Chamber, the Registry brought to the attention of the Chamber the Kenyan Government’s refusal to execute the PreTrial Chamber’s request on the basis that Art. 93(1)(k) icc Statute only applies at the post-conviction phase and then only to assets that could be considered to be the proceeds or instrumentalities of the crime. The Trial Chamber held that the statutory framework does not require a nexus to be established with the proceeds or instrumentalities of the crime when ordering protective measures under Art. 57(3)(e) icc Statute. It held that the term ‘forfeiture’ may carry a broader meaning which encompasses an award for reparations. Referring to a teleological interpretation of Art. 57(3)(e) icc Statute, and to ensure that the relevant Trial Chamber will have recourse to such assets for the purpose of an eventual order for reparations, the Trial Chamber held that it is necessary that protective measures are implemented at the earliest opportunity prior to the commencement of trial, after the issuance of a warrant of arrest or a summons to appear. Judge Henderson, in his dissent, took the view that Art. 57(3)(e) icc Statute and Rule 99(1) icc rpe do not authorise a Chamber to request a State to take protective measures under Art. 93(1) icc Statute for the purpose of an order for reparations. In his view, protective measures can be taken for the purposes of eventual forfeiture, which in appropriate circumstances can be transferred to the Trust Fund and thereafter used for the benefit of the victims in an award for reparations. Under Judge Henderson’s analysis therefore, the forfeiture requirements (of the assets being linked to the proceeds and instrumentalities of crime) would appear to apply to protective measures. It is unclear how other Trial Chambers will interpret Art. 57(3)(e) icc Statute or whether the issue will in future be decided resolutely by the Appeals Chamber. The decision of the majority in the Kenyatta case, if it holds, is a progressive interpretation of the statutory framework which should encourage legal representatives for victims to actively engage with the OTP and the relevant Chambers on the issue of asset orders, for the ultimate benefit of victims.31 However, regardless of the interpretation of Art. 93(1)(k) icc Statute by different icc Chambers to date, the vagueness of the statutory framework has 31

See e.g. the similar approach taken in icc, Prosecutor v Germain Katanga Order on the execution of the warrant of arrest against Germain Katanga, icc-01/04-01/07-54-tENG (5 November 2007).

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meant that the procedures put in place by certain State Parties to cooperate with such requests have narrowly focused on the proceeds and instrumentalities of crime.32 This has been the argument of Kenya in the Kenyatta case, though as indicated, the Trial Chamber majority rejected these arguments. In so doing, it reminded that State Parties are: [U]nder an obligation to ‘promptly’, pursuant to Article 93(3) of the Statute, or ‘without delay’, pursuant to Article 97 of the Statute, engage in consultations with a view to resolving the matter […] In the case of a genuine dispute regarding the legality of a request for cooperation, a State is directed by Regulation 108(1) of the Regulations of the Court […] to apply for a ruling from the competent Chamber.33 B Post-conviction Cooperation State Parties are obliged to give effect to fines and forfeitures ordered by the Court following a conviction, as well as reparations orders. Rule 217 icc rpe provides: [T]he Presidency shall, as appropriate, seek cooperation and measures for enforcement […] as well as transmit copies of relevant orders to any State with which the sentenced person appears to have direct connection by reason of either nationality, domicile or habitual residence or by virtue of the location of the sentenced person’s assets and property or with which the victim has such connection. Rule 218(3) icc rpe provides further: In order to enable States to give effect to an order for reparations, the order shall specify: (a) The identity of the person against whom the order has been issued; (b) In respect of reparations of a financial nature, the identity of the victims to whom individual reparations have been granted, and, where the award for reparations shall be deposited with the Trust Fund, the particulars of the Trust Fund for the deposit of the award; and 32

33

See e.g. Oosterveld, Perry and McManus, ‘The Cooperation of States with the International Criminal Court’ (2001–2) 25 Fordham International Law Journal 767, which analyses certain domestic implementing legislation. icc, Prosecutor v Uhuru Muigai Kenyatta Decision on the implementation of the request to freeze assets (2014) supra n 29 at paras 25–26.

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(c) The scope and nature of the reparations ordered by the Court, including, where applicable, the property and assets for which restitution has been ordered. States would not have the ability to modify the reparations orders specified by the Court.34 The correct procedure is instead for persons affected by reparations orders to appeal the Court’s reparations decision. In accordance with these provisions, it is envisioned, at least as a matter of principle, that a Trial Chamber may order reparations without having previously identified the assets. The express reference by the Appeals Chamber in the Lubanga case to Regulation 117 RoC, which gives the Presidency the role of monitoring the financial situation of the sentenced person on an ongoing basis, even following completion of a sentence,35 underscores this interpretation. Clearly however, it is most advantageous for assets to be identified much earlier in the process so that there is less chance of dissipation and they can be frozen and made available to enforce reparations orders following a conviction. The Appeals Chamber did not address the issue as to what will happen to assets which come into the Court’s possession after the closure of the reparations phase of a case. The icc Statute does not provide a clear avenue for victims’ legal representatives to seek to re-open reparations proceedings after the close of a case. Presumably, the Chamber assigned with overseeing the implementation of reparations orders would be capable of being seized if the assets are located during the enforcement process. If property or assets are located after the implementation of the reparations order is completed, the Presidency would arguably have the authority to constitute a new chamber for the purpose of determining what should transpire with those assets. 3

Particular Problem Areas in the Context of Application

A Implementing Legislation As the Court has itself set out: The first obligation of States with respect to cooperation is to implement the Rome Statute in their domestic legislation and thereby provide, in particular, pursuant to article 88 procedures for ‘all of the forms of 34 35

Rule 219 icc rpe. icc, Prosecutor v Thomas Lubanga Dyilo Appeals Chamber Judgment (2015) supra n 3 at para 104.

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cooperation’ specified in Part ix. Fulfilling this obligation constitutes a first step in order to ensure full cooperation with the Court. Without such implementing legislation, cooperation requests may encounter domestic legal hurdles in practice, since the legal and judicial authorities in charge of undertaking the requested measures may lack jurisdiction and power to proceed. Such implementing legislation is also likely to be necessary to set appropriate detailed procedural mechanisms.36 Yet, the vague provisions of the icc Statute and icc rpe regarding assets and property recovery impede the practical results of such endeavours. This is compounded by the fact that the obligations of State Parties to cooperate with the Court and aid in the process of uncovering and transferring assets and property are to be implemented in accordance with the ‘procedures of national law’.37 State Parties must ensure that the necessary procedures are in place at the national level in order to be able to execute a request from the Court to this end. While the icc Statute makes clear that the absence of adequate domestic laws and procedures does not justify non-compliance,38 in reality however, few States have sufficiently robust procedures to respond to asset and property requests emanating from the Court. States’ implementing legislation and the associated procedures put in place by States to foster cooperation are often insufficiently robust, clear or sufficient to do the job. Inevitably, gaps result in delays and inefficiencies when faced with a cooperation request which allows for funds and property to be transferred out of a jurisdiction or dissipated with relative ease. In the case of non-State Parties, there is no overriding obligation to cooperate with the Court though those non-State Parties who wish to cooperate with the Court may do so, ‘on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis’.39 If assets are located on the territory or in the control of non-State Parties, the Court, or the individual recipients of reparations orders, would need to advocate for the recognition of the icc order in that jurisdiction. If a non-State Party has entered into an ad hoc arrangement or an agreement with the Court, and thereafter fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the asp or, where the unsc 36 37 38 39

icc, Report of the Court on International Cooperation and Assistance, in asp, Report of the Bureau on cooperation, 15 November 2009, icc-asp/8/44, Annex 1 at para 15. Art. 93(1) icc Statute. Art. 88 icc Statute. Art. 87(5)(a) icc Statute.

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referred the matter to the Court, the unsc.40 The icc Statute does not specify whether arrangements or agreements the Court enters into can be revoked or altered by non-State Parties or the terms by which any such alterations may be made. The ability for the Court to ensure the enforcement of such agreements in the absence of the good faith will of the State to comply seems minimal at best. The Disposition of Assets Subject to Sanctions Regimes and Other Parallel Freezing Orders In certain cases, assets belonging to perpetrators may have been frozen pursuant to unsc or other sanctions regimes, and the ability of the icc to obtain control of those assets for the purposes of reparations is untested. A number of situation countries have been the subject of unsc sanctions regimes, with several defendants featuring directly on lists of persons whose property or assets should be frozen. The relationship between those sanctions regimes and the icc’s cooperation regime is untested. As a matter of principle, obligations pursuant to Art. 103 un Charter would trump any obligations State Parties have to cooperate with the Court.41 Thus, State Parties faced with competing requests from the icc and from the unsc may be compelled to act first and foremost on the unsc requests. This challenge of dealing with such competing obligations has been noted by the Bureau of the asp Facilitator for Cooperation, and State Parties have been encouraged to ‘handle such requests on the basis of article 93, paragraph 9(b), of the Rome Statute, respectful of Article 103 of the United Nations Charter’42 and: B

[C]ontinue to provide political and diplomatic support to the Court, and, where possible, consider approaching the United Nations Security Council […] and/or the sanctions committees, with a view to finding arrangements that would allow the unsc and sanctions committees to share more information with the Court with regard to assets.43 Further, State Parties have been requested to: 40 41 42 43

Art. 87(5)(b) icc Statute. See McCarthy, Reparations and Victim Support in the International Criminal Court (Cambridge: Cambridge University Press, 2012) 307–308. icc, Summary of the 1 October 2012 workshop on cooperation (2012) supra n 21 at para B(11). Ibid at para B(9).

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[B]e mindful of how the wording of unsc resolutions may affect the Court’s execution of its mandate, and, where possible, try to influence the wording of such resolutions to take into account the operational needs of the Court. The possibility of adding provisions to resolutions allowing for (partial) unfreezing of frozen assets to allow for payment of Court-related legal fees could be explored.44 However, the ability of the unsc to order the transfer of assets to the Court is untested. The Relationship Agreement between the International Criminal Court and the United Nations45 provides no guidance. It has been recommended: [W]hen cognisant that the same assets could be requested to be frozen or identified by the Court, [States should] take necessary measures on the national level so that information gathered in connection with the implementation of the unsc resolution could be shared with the national focal point or the relevant national authority for Court cooperation.46 Yet arguably, the Court should be engaging the unsc directly, and negotiating further provisions to outline the modalities for sharing of information regarding competing requests and, where possible, ensuring that funds frozen pursuant to unsc Resolutions can, as appropriate, contribute to the fulfilment of the Court’s reparations orders. Importantly, in 2012, the Prosecutor noted: Since the opening of the situation, the Office has been in contact with the un Sanctions Committee, which is assisted by a Panel of Experts and with Interpol to coordinate its investigative efforts in relation to the assets of the suspects. The Court has sent at the end of September requests for assistance to Libya, State Parties, and five un Security Council non-State Parties to identify, trace, seize and freeze all the personal assets belonging to the suspects. The Office strongly encourages the Security Council and States to assist the Court in identifying and isolating these assets.47 These are crucial steps.

44 45 46 47

Ibid at para B(10). Concluded on 4 October 2004. icc, Summary of the 1 October 2012 workshop on cooperation (2012) supra n 21 at para B(12). icc Prosecutor, Statement to the United Nations Security Council on the situation in Libya pursuant to unscr 1970 (2011), 2 November 2011 at para 13.

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There are several instances in which property or other assets frozen pursuant to unsc procedures have subsequently been unfrozen, however the icc’s outstanding requests are not known to have featured in the analysis of whether or how these should be unfrozen and who should ultimately benefit. For instance, some of the Libyan frozen assets have progressively been unfrozen ‘for the benefit’ of the Libyan people’,48 even though the icc still had an open case against Saif Al-Islam Gaddafi.49 C Competing Claims for Assets In the event that property or assets are located and frozen, a question arises as to the circumstances and modalities in which they will be made accessible for the purposes of reparations. The icc will have a number of uses for the assets which go beyond reparations, such as, for instance, the payment of defendants’ legal costs that had, prior to the location of the assets, been covered by legal aid. Rule 21(5) icc rpe provides: Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at that time may make an order of contribution to recover the cost of providing counsel. However, in accordance with Rule 221(2) icc rpe, the Presidency, which is mandated to decide on the disposition or allocation of such assets, ‘shall give priority to the enforcement of measures concerning reparations to victims’. 48 The un sanctions against the Libyan State and officials associated with the Gaddafi regime were progressively modified, reducing the scope of their application as the conflict against the Gaddafi regime came to a conclusion. For instance, on 16 September 2011 the unsc adopted Resolution 2009 which inter alia lifted the asset freeze against certain State institutions. The unsc recalled ‘its determination to ensure that asset frozen pursuant to resolutions 1970 (2011) and 1973 (2011) shall as soon as possible be made available to and for the benefit of the people of Libya’ and underscored ‘the importance of making these assets available in a transparent and responsible manner in conformity with the needs and wishes of the Libyan people’. 49 icc, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Judgment on the appeal of Libya against the decision of Pre-Trial Chamber i of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”, icc-01/11-01/11-547-Red (21 May 2014). Note, however that Saif Al-Islam Gaddafi has not been transferred to the icc. On 28 July 2015 Saif Al-Islam Gaddafi was sentenced to death in a mass trial in Tripoli, Libya. See Stephen, ‘Gaddafi’s son Saif al-Islam sentenced to death by court in Libya’, The Guardian, 28 July 2015, available at: www.theguardian.com/world/2015/jul/28/saif-al -islam-sentenced-death-by-court-in-libya-gaddafi-son (last accessed 8 August 2015).

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While in principle Rule 221 icc rpe clarifies that reparations will trump other claims emanating from the Court, and the importance of this prioritisation has been underscored by the asp,50 it is nonetheless possible that the timing of the operation of the different procedures may inhibit the operation of the Rule. Rule 221 icc rpe arguably operates after conviction, whereas Rule 21(5) icc rpe may operate at an earlier stage. Thus, it is possible that there will be a dissipation of assets through the operation of Rule 21(5) icc rpe prior to the end of the trial, which will work against the ultimate benefit of victims. For instance, the Pre-Trial Chamber partially allowed some of Jean-Pierre Bemba Gombo’s assets that had been frozen by Portugal to be unfrozen, in order to allow for him to pay for his defence and to provide the minimum upkeep to his family.51 Further, it is not evident how national courts will deal with the competing claims for assets, or how they will assign priorities in order to adjudicate between these claims. For instance, reparations orders against former Heads of State or senior officials may give rise to competing claims against the perpetrator for corruption or misappropriation of State funds. There may also be additional creditors and/or victims who did not apply through the icc reparations process, whose claims would need to be adjudicated by national courts. The icc Statute deals with competing surrender or extradition requests,52 but not competing requests for other forms of cooperation such as assets. When there are competing surrender or extradition requests, there is an obligation on the State with the competing requests to notify the Court and the requesting State of that fact, and if the requesting State is a State Party and the case is determined to be admissible before the Court, the icc Statute determines that the Court has priority.53 In contrast, the icc Statute provides no real answer in relation to competing asset requests. There is simply the obligation on State Parties, pursuant to Arts. 93(3) and 97 icc Statute, to engage in consultations with a view to resolving the matter, and/or to apply for a ruling from the competent Chamber. Art. 93(1)(k) icc Statute underscores that measures can be taken ‘without prejudice to the rights of bona fide third parties’. Yet, if there are indeed bona 50 51

52 53

asp, Resolution on “Victims and affected communities, reparations and Trust Fund for Victims”, 17 December 2014, icc-asp/13/Res.4 at para 12. icc, Prosecutor v Jean Pierre Bemba Gombo Decision on the Defence’s Application for Lifting the Seizure of Assets and Request for Cooperation to the Competent Authorities of Portugal, icc-01/05-01/08-251-Anx (10 October 2008). Art. 90 icc Statute. Arts. 90(2) and (3) icc Statute.

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fide third parties, it is unclear how these would be dealt with. It is unclear whether the Court would take upon itself the task of determining whether the claims of third parties are bona fide. Rule 99(3) icc rpe indicates: If an order is made without prior notification, the relevant Chamber shall request the Registrar, as soon as is consistent with the effectiveness of the measures requested, to notify those against whom a request is made and, to the extent possible, to any interested persons or any interested States and invite them to make observations as to whether the order should be revoked or otherwise modified. But it is unclear how this provision would operate in practice. Presumably the victims before the icc will be just as bona fide as any other bona fide third party. On one reading, the beneficiaries of an icc reparations awards may only benefit from assets if there are no other parties with a claim to those assets. There are frameworks in anti-corruption and money laundering treaties that may be useful to peruse for ideas but they do not apply as such. The closest example is perhaps the Swiss attempts to broker an equitable solution when Filipino recipients of an American Alien Tort Claims Act judgment in Hawaii sought to enforce their award against assets frozen in Switzerland, and at the same time the Philippines Government was seeking return of the Marcos’ illgotten gains – misappropriation of State funds.54 But this brokering of a solution was not perfect, nor can it be easily replicated in the context of the icc. In the Swiss case, Switzerland was in possession of the disputed assets and was faced with the decision as to how best to equitably allocate those assets. In the case of the icc, invariably the Court will not be in possession of the assets. 4 Conclusion Clearly there remain a lot of unanswered questions and several important gaps in the applicable legal and procedural frameworks which combine to make the 54

See Van Dyke, ‘The Fundamental Right of the Marcos Human Rights Victims to Compensation’ (2001) 76 Philippine Law Journal 169 at 184 et seq. See also, Republic of the Philippines v Estate of Ferdinand Marcos, Supreme Court of the Philippines, g.r. No. 152154 (15 July 2003). The Government of the Philippines has subsequently established a Human Rights Victims’ Claims Board. See Republic of the Philippines; Human Rights Victims’ Claims Board, ‘Historical Background About the Human Rights Victims’ Claims Board’, Republic of the Philippines: Human Rights Victims’ Claims Board, available at: www .hrvclaimsboard.gov.ph/index.php/about/history (last accessed 8 August 2015).

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prospects of asset recovery both daunting and remote. Given victims’ limited procedural rights before the icc, their lack of standing before the sanctions committees of the un and the extreme difficulties if not impossibility they will encounter to access courts in the countries where property and other assets may be located, the Court must work with State Parties and non-State Parties alike, and intergovernmental organisations in order to resolve the many remaining uncertainties. This must be done at the earliest possible opportunity if the reparations regime of the icc is to live up to its promise.

List of References Books and Journals:

Donat-Cattin, ‘Article 75’ in Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court. Observers’ notes, Article by Article (Baden-Baden: Nomos, 1999) 966. McCarthy, Reparations and Victim Support in the International Criminal Court (Cambridge: Cambridge University Press, 2012). Oosterveld, Perry and McManus, ‘The Cooperation of States with the International Criminal Court’ (2001–2) 25 Fordham International Law Journal 767. Van Dyke, ‘The Fundamental Right of the Marcos Human Rights Victims to Compensation’ (2001) 76 Philippine Law Journal 169.



Legal Cases and United Nations Documents

ICC, Prosecutor v Thomas Lubanga Dyilo Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58, Annex II, ICC-01/04-520-Anx2 (10 February 2006). ICC, Prosecutor v Thomas Lubanga Dyilo Request to States Parties to the Rome Statute for the Identification, Tracing and Freezing or Seizure of the Property and Assets of Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-62-tEN (31 March 2006). ICC, Prosecutor v Germain Katanga Request to the Democratic Republic of the Congo for the Purpose of Obtaining the Identification, Tracing, Freezing and Seizure of the Property and Assets of Germain Katanga, ICC-01/04-01/07-7-tENG 07-11-2007 (6 July 2007). ICC, Prosecutor v Germain Katanga Order on the execution of the warrant of arrest against Germain Katanga, ICC-01/04-01/07-54-tENG (5 November 2007). ICC, Prosecutor v Jean Pierre Bemba Gombo Decision on the Defence’s Application for Lifting the Seizure of Assets and Request for Cooperation to the Competent Authorities of Portugal, ICC-01/05-01/08-251-Anx (10 October 2008). ICC, Report of the Court on International Cooperation and Assistance, in ASP, Report of the Bureau on cooperation, 15 November 2009, ICC-ASP/8/44, Annex 1.

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ICC, Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision Ordering the Registrar to Prepare and Transmit a Request for Cooperation to the Republic of Kenya for the Purpose of Securing the Identification, Tracing and Freezing or Seizure of Property and Assets of Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-42 (5 April 2011). ICC, Prosecutor v Thomas Lubanga Dyilo Second Report of the Registry on Reparations, ICC‐01/04‐01/06‐2806 (1 September 2011). ICC Prosecutor, Statement to the United Nations Security Council on the situation in Libya pursuant to UNSCR 1970 (2011), (2 November 2011). ICC, Prosecutor v Thomas Lubanga Dyilo Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06 (7 August 2012). ICC, Summary of the 1 October 2012 workshop on cooperation, including proposals and suggestions from the participants in ASP, Report of the Bureau on cooperation, 23 October 2012, ICC-ASP/11/28, Annex 2. ICC, Prosecutor v Germain Katanga Jugement rendu en application de l’article 74 du Statut, ICC-01/04-01/07-3436 (7 March 2014). ICC, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi Judgment on the appeal of Libya against the decision of Pre-Trial Chamber i of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”, ICC-01/ 11-01/11-547-Red (21 May 2014). ICC, Prosecutor v Germain Katanga Décision relative à la peine (article 76 du Statut), ICC-01/04-01/07-3484 (23 May 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on the implementation of the request to freeze assets, Trial Chamber V(B), ICC-01/09-02/11 (8 July 2014). ICC, Prosecutor v Uhuru Muigai Kenyatta Decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, ICC-01/09-02/11-982 (3 December 2014). ICC, Prosecutor v Germain Katanga Registry Report on Applications for Reparations in accordance with Trial Chamber II’s Order of 27 August 2014, ICC-01/04-01/07-3512 (15 December 2014). ICC, Prosecutor v Germain Katanga Scheduling order for interested States or other interested persons to apply for leave to file submissions pursuant to Article 75 of the Statute, ICC-01/04-01/07-3516 (21 January 2015). ICC, Prosecutor v Germain Katanga Order extending the deadline for interested States and other interested persons to apply for leave to file submissions pursuant to Article 75 of the Statute, ICC-01/04-01/07-3518 (2 February 2015). ICC, Prosecutor v Thomas Lubanga Dyilo Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations”

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of 7 August 2012 with AMENDED order for reparations (Annex A) and public annexes 1 and 2, ICC-01/04-01/06-3129 (3 March 2015). Permanent Court of International Justice, The Factory at Chorzow (Claim for Indemnity) (The Merits) (Germany v Poland), Judgment, 13 September 1928. Republic of the Philippines v Estate of Ferdinand Marcos, Supreme Court of the Philippines, G.R. No. 152154 (15 July 2003). UNGA, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Viola­ tions of International Humanitarian Law (UN Basic Principles and Guidelines) adopted by GA Res 60/147, 21 March 2006, A/RES/60/147.



Other Documents



Online Materials

ASP, Report of the Court on cooperation, 18 November 2011, ICC-ASP/10/40. ASP, Report of the Bureau on non-cooperation, 5 December 2014a, ICC-ASP/13/40. ASP, Resolution on “Victims and affected communities, reparations and Trust Fund for Victims”, 17 December 2014b, ICC-ASP/13/Res.4. ASP, Resolution on cooperation, adopted 17 December 2014c, ICC-ASP/13/Res.3.

Republic of the Philippines: Human Rights Victims’ Claims Board, ‘Historical Back­ ground About the Human Rights Victims’ Claims Board’, Republic of the Philippines: Human Rights Victims’ Claims Board, available at: www.hrvclaimsboard.gov.ph/ index.php/about/history (last accessed 8 August 2015). Stephen, ‘Gaddafi’s son Saif al-Islam sentenced to death by court in Libya’, The Guardian, 28 July 2015, available at: www.theguardian.com/world/2015/jul/28/saifal-islam-sentenced-death-by-court-in-libya-gaddafi-son (last accessed 8 August 2015).

Reflections of the Facilitator for Cooperation in the Hague Working Group, 2012–2015 Anniken Ramberg Krutnes 1

Point of Departure

The present author was appointed Facilitator for Cooperation in The Hague Working Group in February 2012, holding the position for close to three years. Those were three rewarding years, and the fruitful working relationship enjoyed with representatives of State Parties, the Court and civil society during this period as Facilitator is highly appreciated. From the outset, a clear distinction was made between cooperation and non-cooperation. The distinction was cooperation being the universal obligation to cooperate with the Court, as defined in the icc Statute,1 whereas noncooperation occurs when there is an actual breach of the duty to cooperate.2 The scope of discussions in the Working Group would hence be all the different aspects of cooperation, but not the cases of non-cooperation. This was a very useful clarification of the mandate, which helped to keep a positive approach in the Working Group and avoid the most political cases. There was also a clear idea that cooperation must be seen as a two way process between the Court and State Parties and that the task of the Working Group was to see how this relationship could be improved. In order for the State Parties to cooperate fully, the Court needed to understand the legal and political specificities of States and to better explain the functioning of the Court both in general terms and when pursuing specific issues. Moreover, the Working Group always proceeded with the assumption that there was a will to cooperate (again it was useful to have clearly defined that it did not look into non-cooperation). Cooperation is a huge folder in the Working Group, and there was no intention to cover all of it. In order to identify the most relevant issues, to achieve concrete results and to create ownership among the various actors, the present author decided not to present a preconceived proposal for a work programme. The Court and the State Parties were asked where they saw that cooperation needed to be improved and where they thought results could actually be achieved. As a result of this, the focus during the first year was on identification, 1 Art. 86 icc Statute. 2 Arts. 87(5) and 7 icc Statute.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_011

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freezing and seizing of assets, communication with the Court, sharing of best practices and developing databases for implementing legislation.3 In other words, an approach related to practical, technical issues. The following two years, as a result of the same approach of listening to the Court and to State Parties, and as a result of events that occurred, the Working Group discussed the issue of non-essential contact, privileges and immunities of the Court’s staff and officials, strategies for arrests, voluntary agreements with the Court and a coordinating mechanism of national authorities.4 2

Working Methods

A Meetings of the Working Group The intention was to have few, but well prepared meetings of the Working Group. And – for the sake of good order – the chapter refers to the Working Group, but formally the correct terminology is ‘the Informal Working Group on Cooperation of The Hague Working Group’. The aim was to achieve an atmosphere of openness and transparency in the Working Group, wishing to have frank and honest discussions. In some cases, when in depth discussions on challenging subjects were held, the Chatham House Rule was applied.5 Civil society was, with a few exceptions, invited to the meetings, and always contributed in a constructive manner. The first meeting of the year was spent discussing the working programme. The following meetings were in-depth discussions on specific subjects, often based on a discussion paper that had been distributed in advance, and sometimes with ‘special guests’ giving a presentation that added a new perspective or new information on the subject on the agenda. Once a year, a full day meeting was held, which made it more interesting for State Parties to participate with delegates from capitals, and from Brussels for those State Parties who have their representation there. The meetings after the summer were generally used for discussing the Resolution for the asp. 3 asp, Report of the Bureau on cooperation, 23 October 2012, icc-asp/11/28 at para 4. 4 asp, Report of the Bureau on cooperation, 21 October 2013, icc-asp/12/36 at para 7 and asp, Report of the Bureau on cooperation, 21 November 2014, icc-asp/13/29 at para 4. 5 ‘When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed’. See Chatham House ‘Chatham House Rule’, Chatham House, 2014, available at: www.chathamhouse.org/about/chatham -house-rule (last accessed 1 September 2015).

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B Report of the Bureau on Cooperation The report from the Bureau should document the activities of the Working Group on Cooperation and is written by the Facilitator before it is discussed in the Informal Working Group on Cooperation, then adopted by The Hague Working Group and, finally, adopted by the Bureau as their Report. It would be useful to document not only the activities of the Working Group, but also some of the substance that came from the deliberations, such as the recommendations that came out of the full day workshop on identification, freezing and seizure of assets. This was achieved by annexing to the report summaries of the most substantial discussions held, as well as some of the discussion papers. In this way, the report was kept relatively short, while the outcomes of the discussions were also well documented and part of the official icc documents. In addition to the abovementioned subject of asset recovery,6 the following meeting outcomes were documented: discussions on non-essential contacts, arrest strategies and privileges and immunities,7 as well as an informal paper on privileges and immunities of the Court’s staff,8 a briefing paper on cooperation and defence issues,9 a study on the feasibility of the establishment of a coordinating mechanism of national authorities dealing with cooperation10 and a comprehensive report by a special rapporteur on arrest strategies.11 C Resolution The Resolution is the operative outcome of all the deliberations in the Working Group, and is the document that shows the way forward, expressing the views of the State Parties. The Resolution should have clear language and give direction to the State Parties and, as appropriate, also to the Court. It is argued that the Resolution should reflect the outcome of the discussions of the Working Group and for this reason a few new paragraphs were introduced to the resolution every year. Seeing the Resolution as a dynamic and operative document, which was always trying to move issues forward, naturally led to intense discussions over the wording of some of the paragraphs. Last-minute negotiations were therefore essential during the asp every year. State Parties’ 6 7 8 9 10 11

asp, Report of the Bureau on cooperation (2012) supra n 3 at annex ii. asp, Report of the Bureau on cooperation (2013) supra n 4 at annex ii and asp, Report of the Bureau on cooperation (2014) supra n 4 at annex iv. asp, Report of the Bureau on cooperation (2012) supra n 3 at annex iii. asp, Report of the Bureau on cooperation (2014) supra n 4 at annex iii. Ibid at annex ii. asp, Report of the Bureau on cooperation: Addendum, 21 November 2014, icc-asp/13/29/ Add.1.

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representatives deserve much gratitude for their patience and engagement in these processes. D Plenary Discussions during the Assembly of States Parties Meetings Cooperation became a separate item on the agenda for the asp in 2012, which meant that three hours of plenary discussion was dedicated to the subject. Instead of having a general discussion on the subject, or spending the time discussing the Resolution, it was decided in the Working Group to choose one or two specific subjects that were desirable to highlight and to invite a panel of distinguished speakers to introduce the discussion. The subjects of the plenary discussion on cooperation at asp 11 were arrest and identification, freezing and seizing of assets. At asp 12, the subject was witness protection and, at asp 13, sexual and gender-based violence. These discussions contributed to giving attention to specific issues. E Seminars/High Level Meetings During 2013 and 2014 five seminars or high level meetings were arranged between officials of the Court and representatives of State Parties, four of them in African countries and one in Latin America. The background for these seminars was a very simple idea. The Court was in desperate need for improving their system of witness protection, including the possibility of relocating witnesses, but they had very few agreements with States willing to relocate witnesses. As an example, only one African State had entered into such an agreement with the Court. It was thought that it would be possible to achieve more relocation agreements if the States were made aware of the need of the Court, learned more about the implications of such an agreement (for example, that there was funding available for relocating witnesses) and if the Court could learn more about what the challenges were, seen from the States’ side. The idea was well received from the Court’s side, and the first meeting was arranged at Gorée Island, in Dakar, Senegal, for French-speaking countries,12 followed by a similar event in Arusha, Tanzania, for English-speaking countries.13 The meetings were financed by Norway, Estonia, and the Netherlands. The concept was to have a two-way dialogue where the Court presented its needs, but also informed about what it could contribute, and the State Parties presented their situation, their needs and their possible contributions. The seminars were seen as very successful, so they were continued the following 12 See asp, Report of the Bureau on cooperation (2013) supra n 4 at para 5. 13 See asp, Summary of the Arusha seminar on witness protection (29–30 October 2013), 7th November 2013, icc-asp/12/36/Add.1.

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year, receiving funding from Norway, the Netherlands, and the European Commission, and this time leaning heavily on the Court for the practical organisation of the meetings. Meetings were held in Cotonou, Benin,14 and Accra, Ghana.15 A seminar was also arranged in Buenos Aires, Argentina, on cooperation issues in general.16 All five meetings were attended at high level by State Parties, while the meetings were also privileged to benefit from the very valuable participation of the relevant experts. The seminar also served a wider purpose of national capacity building, networking among relevant regional actors, as well as facilitating cooperation on witness protection issues among participating States. This is arguably a clear example of the link between cooperation and complementarity issues. 3

Cooperation Issues

In the following section, a brief overview will be provided of the subjects that were discussed in the Informal Working Group on Cooperation during three years as Facilitator, that is, in 2012, 2013 and 2014 and, consequently, where those discussions led during the asp 11, 12 and 13. A Communication between the Court and the State Parties The Working Group at the first meeting in 2012 decided to focus on technical, practical issues, the first of them being communication. Both the Court and several State Parties expressed the view that there was room for improvement in the way communication between the Court and the State Parties worked, on both sides. It was soon decided that it would be more useful to discuss this issue in connection to a practical subject instead of just a conceptual discussion of the subject, and the discussion was therefore linked to the subject of identification, freezing and seizing of assets. One of the main findings of the discussion was that in many cases requests got lost, or at least severely delayed, on their way from the Court to the correct recipient, and that it would be very helpful if State Parties could establish a national contact point for contact with the Court. This idea was also introduced in the Resolution of that year’s asp as an appeal to State Parties to establish such a contact point. The Resolution ‘Encourages States to consider the establishment of a national focal point and/or a national central authority or working group tasked with the 14 See asp, Summary on the seminar on fostering cooperation, held in Cotonou, Bénin, 28 November 2014, icc-asp/13/29/Add.2. 15 See asp, Report of the Bureau on cooperation (2014) supra n 4 at 23. 16 Ibid at 21.

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coordination and mainstreaming of Court-related issues, including requests for assistance, within and across government institutions’.17 The idea of establishing a national contact point has been reaffirmed in later Resolutions. Another finding was that it was often difficult for State Parties to respond to very general requests from the Court, and it would be helpful if the requests could be as specific and well documented as possible. The latter point was reflected in the Resolution of that year’s asp by the paragraph: Emphasizes also the ongoing efforts made by the Court in providing focused requests for cooperation and assistance which contribute to enhancing the capacity of States Parties and other States to respond expeditiously to requests from the Court, and invites the Court to also continue improving its practice in transmitting specific, complete and timely requests for cooperation and assistance.18 B Implementing Legislation of Particular Importance to Cooperation This subject was first discussed in the Working Group in a meeting in June 2012, and was also discussed in a number of the high level meetings/seminars on witness protection. There is a known fact that many State Parties have not yet implemented necessary national legislation to be able to comply with their obligations according to the icc Statute. The Resolution from asp 10 already had a paragraph on this, with a clear message to State Parties: Recalls that the ratification of the Rome Statute must be matched by national implementation of the obligations emanating therefrom, notably through implementing legislation and adopting appropriate measures at the national level and, in this regard, urges States Parties to the Rome Statute that have not yet done so to adopt such legislative and other measures so as to ensure that they can fully meet their obligations under the Rome Statute.19 In order to move this issue forward, the Working Group invited the Project Coordinator of the icc Legal Tools Project to give a presentation of this tool and how it can be useful for State Parties working on their own legislation. As a result of the meeting, it was suggested that the National Implementing Legislation Database, which forms part of the Court’s Legal Tools Database 17 18 19

asp, Resolution on Cooperation, 21 November 2012, icc-asp/11/Res.5 at para 15. Ibid at para 4. asp, Resolution on Cooperation, 20 December 2011, icc-asp/10/Res.2 at para 4.

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could be further developed to facilitate the retrieval of information about national implementing legislation relevant to States’ obligations to cooperate with the Court. This is reflected in a new paragraph of that year’s asp resolution: ‘Acknowledges efforts by States and by the Court, including through the Legal Tools Project, to facilitate exchange of information and experiences, with a view to raising awareness and facilitating the drafting of national implementing legislation’.20 The same wording was repeated in the resolutions of asp 12 and 13, and presentations of the Legal Tools Project have been given on several occasions, including at the high level meeting on cooperation and witness protection that took place in Accra, Ghana in July 2014.21 Sharing of Best Practices: Establishing a Coordinating Mechanism of National Authorities Dealing with Cooperation with the Court Sharing of best practices between State Parties is another very practical issue that was put on the agenda of the Working Group during the first year as Facilitator, at the initiative of some State Parties. The basic idea, that State Parties have much to learn from each other, makes a lot of sense, but it is surprisingly difficult to make this happen in practice. As a follow up of that first initiative, in the following year, one State Party suggested that a coordinating mechanism of national authorities dealing with cooperation with the Court be established. There was no immediate agreement in the Working Group for the idea, but there seemed to be an acceptance for looking further into the issue. The result was that the Resolution adopted at asp should ask the Working Group to continue its work on this issue and look further into the feasibility of such a mechanism. The Resolution reads, in relevant part, as follows: ‘Requests the Bureau to report to the thirteenth session of the Assembly on the feasibility of establishing of a coordinating mechanism of national authorities dealing with cooperation with the Court, for sharing knowledge and know-how, on a voluntary basis’.22 The feasibility study took place at a full day meeting of the Working Group in June 2014, based on a background paper prepared by a State Party and circulated by the Facilitator. Some of the arguments raised at the meeting were that such a mechanism would allow the sharing of knowledge, know-how and good practices among State Parties on technical and legal matters. The mechanism would also facilitate the creation of a professional network. Some State Parties voiced concern related to the possible confidential nature of the information

C

20 asp, Resolution on Cooperation (2012) supra n 17 at para 14. 21 See asp, Report of the Bureau on cooperation (2014) supra n 4 para 9. 22 asp, Resolution on Cooperation, 27 November 2013, icc-asp/12/Res.3 at para 18.

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to be shared in the coordinating mechanism. Other concerns raised related to the mandate of the mechanism in relation to the existing legal framework, the possible increase of bureaucracy, a possibility of falling into ‘naming and shaming’ practice and the freedom of States to organise themselves. According to the summary of the meeting of the feasibility study: Participants further agreed to use the framework of the fourteenth session of the asp, to be held in The Hague, to convene an event of practitioners with the aim of giving an expression of interest of national authorities and to discuss the modalities of establishing a coordinating mechanism of national authorities dealing with cooperation.23 A reference to this was made in the draft Resolution on Cooperation, but this was not accepted by the asp. The Resolution reads: Welcomes the report to the thirteenth session of the Assembly on the feasibility study of establishing a coordinating mechanism of national authorities and invites the Bureau to discuss the feasibility of establishing a coordinating mechanism of national authorities, taking into consideration the study in annex ii of the report of the Bureau on Cooperation and to report to the Assembly well in advance of the fourteenth session.24 This is a very good example of the manner in which the asp operates, and how issues develop over the years. The Working Group first discussed the issue of sharing of best practices in Spring 2012. One year later it was discussed again, this time including the idea of a coordinating mechanism. This resulted in a mandate to undertake a feasibility study, which took place the following year and which was presented to the asp in 2014. The asp was still not convinced by the idea, and has asked the Bureau to look into it again. D Identification, Freezing and Seizing of Assets The subject of identification, freezing and seizing of assets has received growing attention over the last years. This is partly driven by the thought that by recovering the assets of some of the suspects of the icc, their money can be used to pay for their defence and, later, if convicted, for reparation. The issue

23 24

asp, Report of the Bureau on cooperation (2014) supra n 4 at Annex ii at para 15. asp, Resolution on Cooperation, 17 December 2014, icc-asp/13/Res.3 at para 16.

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is, however, far from easy and, in addition to the technical challenges of identifying and freezing the assets, there is the question of competing claims. The subject was discussed at a workshop arranged by the Facilitator in cooperation with the Court in October 2012. Among the participants were experts from State Parties from all regional groups, officials of all the organs of the Court, international tribunals and international organisations. Participants were presented with a case study, and the workshop also addressed the issue of competing claims regarding the same assets. A list of recommendations to the Court and to States was prepared as a result of the workshop and annexed to the Report on cooperation to asp 11.25 The need for a proactive approach by the Court to develop strategies for facilitating cooperation with State Parties and other States to identify, freeze and seize assets and the corresponding obligation of State Parties to comply with requests from the Court was not new, and was already reflected in the Resolution on Cooperation.26 The wording was slightly changed for the Resolution of asp 11, and a new paragraph was introduced on the need for expeditious transmitting of requests, as that was identified in the workshop as one of the critical success factors for identifying and freezing assets.27 The Resolution of asp 12 introduced the aspect of the motivation for asset recovery by linking it to reparation to victims and costs of legal aid, saying asset recovery was crucial for the provision of reparation to victims and for potentially mitigating the cost of legal aid.28 The Resolution of asp 13 modified this aspect, saying it could be of value for reparation and costs of legal aid.29 It is suggested that the changing wording in every asp resolution on the subject of identification, freezing and seizing of assets is a clear signal that the subject is being developed, and that the dynamics of that process is reflected in the Resolutions. E Privileges and Immunities of the Court’s Staff This is not a typical issue of cooperation, and it was not on the agenda of the Working Group from the outset. However, after the events in June/July 2012, when four officials of the Court were detained in Libya,30 the need to clarify and raise awareness of the applicable obligations of State Parties and other 25 asp, Report of the Bureau on cooperation (2012) supra n 3 at Annex ii. 26 asp, Resolution on Cooperation (2011) supra n 19 at para 8. 27 asp, Resolution on Cooperation (2012) supra n 17 at paras 20 and 21. 28 asp, Resolution on Cooperation (2013) supra n 22 at para 23. 29 asp, Resolution on Cooperation (2014) supra n 24 at para 22. 30 See bbc News, ‘icc staff “in jail” in Libya after Saif Gaddafi visit’, bbc News, 11 June 2012, available at: www.bbc.co.uk/news/world-africa-18394191 (last accessed 2 September 2015).

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States with regard to the privileges and immunities for the Court’s staff members was highlighted. The Working Group therefore convened a meeting to discuss the topic in September the same year. An informal paper on the subject was circulated before the meeting.31 The paper outlined features of the existing regime on privileges and immunities for the Court’s staff and set out points for further discussion. The paper explains briefly the obligations of State Parties according to the icc Statute and also mentions the Agreement on the Privileges and Immunities of the Court (apic). Further, it raises a question as to whether there exists a need to clarify the situation of the legal norms regarding the immunities and privileges of the Court’s staff on missions in States that are not party to the icc Statute, when such States are under an obligation to cooperate with the Court because of a referral from the unsc. A need for clarification may also be present in cases of acceptance of the Court’s jurisdiction by a non-State Party. The Resolution of asp 11 reflects the discussions of the Working Group, first in expressing serious concern regarding the detention of the four officials of the Court,32 then by stressing the importance of respect for the privileges and immunities of the Court’s staff and officials in accordance with Art. 48 icc Statute33 and, finally, by calling upon State Parties as well as non-State Parties to become Parties to the apic.34 Parallel to the discussions in the Working Group, the Court was undertaking its own work on the development of its policy with respect to privileges and immunities. The Working Group therefore decided to keep the issue on the agenda in 2013 in order to be able to follow up the Court’s work on the subject. The Court presented a discussion paper to the Working Group in May 2013 aimed at assisting to identify the most relevant areas where State Parties’ assistance was needed to secure the respect of the privileges and immunities of the Court’s staff. The same concerns and appeals were repeated in the Resolution of that year.35 This is again an example of an issue that develops over years and of the dynamics of the interaction between the Informal Working Group, the asp and the Court. It was a subject that had not received a lot of attention but, due to events, there was a need to focus on it. The Working Group started the work, and shared its work with the Court, which approved thereof. The deliberations 31 32 33 34 35

asp, Report of the Bureau on cooperation (2012) supra n 3 at Annex iii. asp, Resolution on Cooperation (2012) supra n 17 at para 7. Ibid at para 8. Ibid at para 9. asp, Resolution on Cooperation (2013) supra n 22 at paras 9 and 10.

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of the Working Group were reflected in the report to, and in the Resolution from, the asp. The Court continued its work and shared it with the Working Group, which again reported on the issues to the asp. F Non-essential Contacts During three years as Facilitator, this is the issue that proved most contentious. It is argued that this is a clear issue of diplomatic and political support for the Court, and it might in some circumstances be seen as a strategy contributing to arrest. There were many misunderstandings around this issue. One was in relation to the obligation of arrest and surrender. The concept of non-essential contact does not in any way take away the obligation to arrest. If one has the authority to arrest a fugitive, he or she should be arrested (and contact not merely avoided). Another misunderstanding was regarding to whom this policy should apply. All the different wordings adopted on this issue were clear, however – it should apply to persons subject to a warrant of arrest issued by the Court. This means that the policy of non-essential contact should be applied to fugitives, not to persons subject to summonses to appear who are cooperating with the Court. To put this rather more bluntly – it would be OK to talk to Ruto, but not to Al Bashir. The concept of non-essential contact was introduced in the Resolution of asp 11, and was first discussed in the Working Group in the meetings leading up to asp 11, in Autumn 2012. The draft Resolution to asp 11 included a bracketed operative paragraph on non-essential contact, but consensus was not achieved on this paragraph. However, after many and long negotiations during the asp, the wording for a preambular paragraph was agreed: ‘Noting that contacts with persons in respect of whom an arrest warrant issued by the Court is outstanding should be avoided when such contacts undermine the objectives of the Rome Statute’.36 The asp also adopted an operative paragraph giving a mandate for further discussions of the issue: Requests the Bureau, through its Working Groups, to consider, in light of the further views obtained from the relevant organs of the Court, the issue of non-essential contacts, and to report thereon to the Assembly well in advance of its twelfth session.37 Pursuant to this mandate, the Working Group continued to discuss the issue at its meetings during the Spring of 2013, and it was one of the subjects of a full 36 37

asp, Resolution on Cooperation (2012) supra n 17 at preambular para 4. asp, Resolution on Cooperation (2012) supra n 17 at para 5.

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day meeting of the Working Group in May that year. As background for the discussions several documents were available, including the un guidance on contacts with persons who are the subject of arrest warrants of summonses issued by the icc38 and a background paper prepared by the Facilitator with draft proposed language for the Resolution. A representative of the un Office of Legal Affairs was invited to give a presentation on their guidelines. A summary of the discussions can be found in Annex ii of the Report of the Bureau on cooperation.39 asp 12 again started without agreement on a text on non-essential contact for the Resolution. The preambular paragraph that was introduced the year before was still there, but there was no agreement on an operative paragraph. Many different wordings had been discussed, but none reached consensus. The language was either ‘too strong’ for some State Parties or ‘too weak’ for others. While a number of delegations expressed support for an operative paragraph on the issues, some voiced concerns over language that might be construed to entail new legal obligations for State Parties. In the end, three preambular paragraphs were agreed on the subject, repeating the paragraph of the year before, introducing a reference to the arrest guidelines issued by the otp as well as a reference to the guidelines of the un Secretariat.40 There was also agreement on an operative paragraph, giving a mandate to continue discussions of the issue.41 Given the mandate of the Resolution from asp 12, the Working Group had to continue to discuss the issue. To move the discussion forward, State Parties who already had an established practice regarding non-essential contact were invited to present their policies to the Working Group. It was hoped that this practical approach would ease the discussions and answer some of the questions of what the concept would imply in practice. At a meeting of the Working Group in September 2014, one delegation shared its views on the issue and its government’s practices on what it considered as ‘essential’ contact, in order to distinguish from non-essential contact. A summary of the meeting, including key elements of the established practice of this State Party is annexed to the Report of that year.42 38 See unga, Identical letters dated 3 April 2013 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council, 8 April 2013, A/67/828–S/2013/210. 39 asp, Report of the Bureau on cooperation (2013) supra n 4 at Annex ii. 40 asp, Resolution on Cooperation (2013) supra n 22 at preambular paras 5, 6 and 7. 41 asp, Resolution on Cooperation (2013) supra n 22 at para 7. 42 asp, Report of the Bureau on cooperation (2014) supra n 4 at Annex iv.

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asp 13 started with a draft Resolution on cooperation that contained the same three preambular paragraphs on non-essential contact as the Resolution of asp 12, and a partly bracketed operative paragraph on the issue. During the asp, States were, for the first time, able to reach consensus on an operative paragraph on non-essential contact, which reads: Urges States Parties to avoid contact with persons subject to a warrant of arrest issued by the Court, unless such contact is deemed essential by the State Party, welcomes the efforts of States and international and regional organizations in this regard, and acknowledges that States Parties may, on a voluntary basis, advise the icc of their own contacts with persons subject to a warrant of arrest made as a result of such an assessment.43 G Arrest Strategies One of the biggest impediments to the Court’s functioning is the large number of fugitives. The subject of arrest is therefore very important, but also very difficult. In practice, the subject of arrest is closely linked to non-cooperation and, in several cases, the lack of arrest is not a question of lack of ability to comply with obligations, but lack of will. Arrest was not discussed by the Working Group in 2012 as it was decided to focus on more technical issues where it would be easier to gain results. Arrest was, however, chosen to be one of the two subjects for the plenary discussion on cooperation during asp 11, and the Prosecutor of the icty, Mr Serge Brammertz, was invited to give a keynote speech on the subject. His keynote, and the following comments from representatives of other ad hoc Tribunals, contributed valuable experience and sharing of best practices on the subject of arrest. This is also reflected in the Resolution: ‘Stresses the value of the lessons learned from international ad hoc and mixed tribunals on the enforcement of arrest warrants’.44 The Working Group chose to put the issue of arrest on its agenda the following year, and at a March meeting the otp presented a contribution paper on the issue. Further discussions in the Working Group led to the recommendation that a report should be prepared on lessons learnt and best practices in implementing and executing arrest warrants, based on the experiences of the ad hoc Tribunals. It was further decided to recommend that the Bureau, in consultation with relevant stakeholders, including the otp and State Parties, was mandated to prepare such a report. In practice, that would mean that the Bureau would ask the Working Group to prepare the report. A roadmap for the 43 44

asp, Resolution on Cooperation (2014) supra n 24 at para 6. asp, Resolution on Cooperation (2012) supra n 17 at para 3.

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way forward and a concept paper was prepared and annexed to the Report.45 Language was introduced in the Resolution in order to reflect the value of looking at the issue of arrest in a structured and systematic manner and to take onto account the relevance of experiences from other tribunals, as well as to give the necessary mandate for preparing a report on arrest for the following year’s asp: Acknowledges that concrete steps and measures to securing arrests need to be considered in a structured and systematic manner, based on the experience developed in national systems, the international ad hoc and mixed tribunals, as well as by the Court.46 Adopts the annex concerning a roadmap for achieving an operational tool to enhance the prospect that requests of the Court for arrest and surrender are expeditiously executed, endorses the appended concept document prepared by The Hague Working Group, and requests the Bureau to report thereon to the Assembly at its thirteenth session.47 The Bureau decided to appoint Mr Roberto Bellelli (Italy) as Rapporteur on arrest strategies, and the roadmap and concept paper adopted by the asp formed basis for his work. He conducted consultations with the Court, the ad hoc Tribunals, including officials in the field, INTERPOL and other law enforcement agencies, as well as civil society. He also addressed a questionnaire to State Parties. The work of the Rapporteur led to a comprehensive report on arrest strategies as well as a draft action plan. The Working Group did not have sufficient time for discussion of the report and the Action Plan before the asp, but it was decided to add the documents to the Report as an addendum.48 In the Resolution, language was introduced to reflect the important work that had been done and to give a mandate for further discussions of the Action Plan, with a view to be able to submit a draft action plan that could be adopted by a later asp: Takes note of the report on arrest strategies by the Rapporteur, and invites the Bureau to continue discussions on the topic, with a view to submitting a consolidated draft Action Plan on Arrest Strategies for consideration of the Assembly of States Parties.49 45 46 47 48 49

asp, Report of the Bureau on cooperation (2013) supra n 4 at Annex iv. asp, Resolution on Cooperation (2013) supra n 22 at para 4. Ibid at para 5. asp, Report of the Bureau on cooperation: Addendum (2014) supra n 11. asp, Resolution on Cooperation (2014) supra n 24 at para 4.

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At the time of writing, the Working Group is discussing the Action Plan, and it remains to be seen whether such an action plan will be adopted at the asp. Whether this happens or not, the report of the Rapporteur will still be there, as a concrete document in the field. H Cooperation and Defence Issues The issue of cooperation with the defence had never been discussed in the Working Group (to the best available knowledge), and was not reflected in the Resolution on Cooperation. The question was actualised with the detention of four staff members in Libya in June/July 2012,50 some of whom represented the defence. The Resolution of asp 12 introduced language on the importance of cooperating with defence teams, as follows: ‘Urges States Parties to cooperate with requests of the Court made in the interest of Defence teams, in order to ensure the fairness of proceedings before the Court’.51 Some State Parties felt a need to clarify the obligation of cooperation with the defence, and the Court was invited to provide a briefing paper on the issue. The paper was partly of a legal character, as it outlined several relevant provisions of the icc Statute and the icc rpe. It also stressed the vital importance of cooperation between States, international organisations and defence teams in order to safeguard the principles of fair trial and equality of arms. The Court’s paper was discussed in a meeting of the Working Group and was amended after input from some delegations. The document, which gives a very useful overview on the subject, is added to the Report on Cooperation to asp 13.52 I Voluntary Agreements The Court needs the cooperation of State Parties on several issues that are not covered by their obligations according to the icc Statute. Examples of this are to accommodate for the enforcement of sentences or to receive witnesses from other countries in order to give them protection. (i) Relocation of Witnesses When the present author took up work as Facilitator, the Court was asked what its biggest need was, and the answer was crystal clear. It needed more capacity to move witnesses from their home country to other countries where they could be safe. The Court had, at that point, witness relocation agreements with very few countries, only one of them African. As described earlier in this chapter, the 50 See bbc News, ‘icc staff “in jail” in Libya after Saif Gaddafi visit’ (2012) supra n 30. 51 asp, Resolution on Cooperation (2013) supra n 22 at para 14. 52 asp, Report of the Bureau on cooperation (2014) supra n 4 at Annex iii.

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initiative was taken to organise high level meetings in African countries to address this issue in detail with Ministers of Justice and other high ranking officials from the targeted region. The meetings/seminars allowed for a very fruitful and privileged exchange of views between African State Parties’ representatives and the Court on the system of protection in place at the Court, the challenges faced by States and the Court in ensuring the protection of witnesses, the relocation agreements and the Special Fund for relocations. During three years as Facilitator, a total of five high level meetings were held, four in Africa and one in Latin America. The specific emphasis on witness relocation agreements led to several new agreements, thanks to active follow-up from the Court’s side, and the number of agreements by the end of 2014 was 14. (ii) Enforcement of Sentences The Court had by 2014 in total signed eight agreements on the enforcement of sentences, but was concerned that three years had passed since the conclusion of the latest agreement. The Court also made the argument that they would wish to have a broad range of agreements in different geographical areas and different normative regimes, so as to be ready to determine enforcements. This would allow the Court to meet the cultural and linguistic needs for sentenced persons, including for families of the individuals concerned. An effort was therefore made by the Working Group during 2014 to highlight this issue. To better understand the issue a presentation was delivered by two Professors of Criminology from the University of Amsterdam. Moreover, at another meeting, a presentation was given by representatives of the un Office on Drugs and Crime (unodc) on the Memorandum of Understanding between the Court and unodc on enforcement and practical implications for State Parties.53 (iii) Interim Release and Final Release The Registry informed State Parties at several of the meetings of the Working Group about the need for agreements to facilitate the process for the interim release of an accused, as well as the final release in case of acquittal if the individual was unable to return to his/her home country, and in the situation where a convicted person had completed his/her sentence and was in need of resettlement. The Registry also observed that they had draft framework agreements

53

icc, Memorandum of Understanding between the International Criminal Court and the United Nations, on Building the Capacity of States to Enforce, in accordance with International Standards on the Treatment of Prisoners, Sentences of Imprisonment Pronounced by the Court, 26 September 2014, icc‐pres/15-02-14.

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on these issues, and State Parties were encouraged to engage in dialogue with the Registry in order to finalise such agreements. The appeal to State Parties to enter into voluntary agreements with the Court is always part of the Resolution on Cooperation. In the last Resolution, from asp 13, the wording is: 17. Acknowledges the importance of protective measures for victims and witnesses for the execution of the Court’s mandate, welcomes the relocation agreements concluded with the Court in 2014, and stresses the need for more such agreements or arrangements with the Court for the expeditious relocation of witnesses; 18. Calls upon all States Parties and other States, to consider strengthening their cooperation with the Court by entering into agreements or arrangements with the Court, or any other means concerning, inter alia, protective measures for victims and witnesses, their families and others who are at risk on account of testimony given by witnesses; 19. Acknowledges that, when relocation of witnesses and their families proves necessary, due account should be given to finding solutions that, while fulfilling the strict safety requirements, also minimize the humanitarian costs of geographical distance and change of linguistic and cultural environment and urges all States Parties to consider making voluntary contributions to the Special Fund for Relocations; 20. Commends and further encourages the work of the Court on framework agreements or arrangements, or any other means in areas such as interim release, final release – also in cases of acquittal – and sentence enforcement which may be essential to ensuring the rights of suspects and accused persons, in accordance with Rome Statute and guaranteeing the rights of convicted persons and urges all States Parties to consider strengthening cooperation in these areas; 21. Welcomes the conclusion of the first voluntary agreement between the Court and a State Party on interim release and requests the Bureau, through its Working Groups, to continue the discussions on voluntary framework agreements or arrangements and to report thereon to the Assembly at its fourteenth session.54 J Diplomatic and Political Support Although this subject was never on the agenda of the Working Group per se, it is maybe the most important subject and it is the underlying factor for all the 54

asp, Resolution on Cooperation (2014) supra n 24 at paras 17–21.

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other subjects. There is a very clear message to State Parties on the subject in the Resolution: Emphasizes the importance of States Parties enhancing and mainstreaming diplomatic, political and other forms of support for, as well as promoting greater awareness and understanding of the activities of the Court at the international level, and encourages States Parties to use their capacity as members of international and regional organizations to that end.55 It is essential to reflect more upon what it really means to support the Court diplomatically and politically. It is not only a question about mentioning the Court when giving a speech in an international organisation. It is about supporting the Court in good times and bad times. It is about giving the Court the necessary resources, giving it constructive criticism when appropriate, engaging and contributing where possible and remaining conscious of how one talks about the Court, helping it build credibility. One of the more important things achieved in the Working Group for contributing to the diplomatic and political support for the Court were the high level meetings/seminars in Africa. Although the purpose of the seminars was to discuss witness protection and relocation agreements, they served as a platform for informal contact at a high level between State Parties and the Court. In a time when the relationship between the Court and many African countries, and the au, was very tense, it was fruitful to be able to meet and talk in a relaxed atmosphere. Having technical issues on the agenda, and not political, contributed to the constructive atmosphere. The same applies to the seminar in Buenos Aires, Argentina. It was high time the Court visited Latin America and showed its appreciation for the support Latin American countries give to the Court. Very fruitful discussions took place on various aspects of cooperation, but the most important aspect of the seminar was that the Court showed an interest to visit State Parties and to listen to their questions and concerns. This willingness to engage in dialogue with State Parties gains a lot of political and diplomatic support. As mentioned earlier, the issue of non-essential contact can be seen as an issue of giving political and diplomatic support to the Court. Another example of how language was introduced in the Resolution to create diplomatic and political support for the Court is the paragraph on referrals from the unsc, which was introduced at asp 11, highlighting the need for adequate and clear mandate and 55

Ibid at para 10.

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the importance of following up such referrals. The text was well received at asp 11, was only slightly changed at asp 12 (the wording ‘cooperation by all un Member States’ was added) and remained unchanged at asp 13: Urges States Parties to explore possibilities for facilitating further cooperation and communication between the Court and international and regional organizations, including by securing adequate and clear mandates when the United Nations Security Council refers situations to the Court, ensuring diplomatic and financial support; cooperation by all United Nations Member States and follow–up of such referrals, as well as taking into account the Court’s mandate in the context of other areas of work of the Security Council, including the drafting of Security Council resolutions on sanctions and relevant thematic debates and resolutions.56 4

Some Final Thoughts

It is always difficult to look back and ask what was achieved, if anything. But in an attempt to try to sum up those three years, it is reasonable to believe that the Working Group contributed to raising awareness on several issues and in some cases, hopefully, helped soften some edges. A strong focus was maintained on the issue of communication, and contributed to a greater understanding of the importance of precise communication and of it being a two-way process. Attention was drawn to, and aspects clarified concerning, the privileges and immunities of Court staff and cooperation with the defence. The usefulness of learning from the experiences of the ad hoc Tribunals was emphasised, and representatives thereof were invited to several discussions of the Working Group. Language was agreed in the Resolution on non-essential contact and on securing clear and adequate mandates in case of unsc referrals. Finally, new relocation agreements for witnesses were reached, largely as a result of the efforts of the Courts’ staff, but the high level meetings of the Working Group might also have contributed thereto. It is also realistic to think that providing a platform for meetings between the Court and State Parties in Africa and Latin America had an effect on the working climate and relations between the Court and the State Parties. Documentation has been produced on various issues, and some of it has later been reflected in documents from the Court. 56

Ibid at para 11.

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The present author wishes to thank all the representatives of State Parties who tirelessly attended meetings, contributed language and engaged in discussions – always in a constructive and positive manner. Thanks to all the representatives of the Court with whom the Working Group dealt, who always shared with the Working Group from their deep knowledge and institutional memory and who were always welcoming and eager to cooperate. Thanks also to civil society, and especially the cicc. They were a good discussion partner, always full of new ideas, a critical voice, but which, at the same time, was conscious of reality and always constructive. Many thanks also to the asp Secretariat, who kept track of meetings and documents. The present author also wishes to express appreciation for the enthusiastic and valuable contributions from a number of legal trainees at the Norwegian Embassy in The Hague. Finally, thank you to Irvin Høyland, at that time Minister Counselor for Legal Affairs at the Norwegian Embassy. He was an immense supporter of the Working Group: his personal and academic skills, as well as his creativity and wisdom, are much appreciated. List of References Legal Cases and United Nations Documents

UNGA, Identical letters dated 3 April 2013 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council, 8 April 2013, A/67/828–S/2013/210.



Other Documents

ASP, Report of the Bureau on cooperation, 21 November 2014, ICC-ASP/13/29. ASP, Report of the Bureau on cooperation, 21 October 2013, ICC-ASP/12/36. ASP, Report of the Bureau on cooperation, 23 October 2012, ICC-ASP/11/28. ASP, Report of the Bureau on cooperation: Addendum, 21 November 2014, ICC-ASP/13/ 29/Add.1. ASP, Resolution on Cooperation, 17 December 2014, ICC-ASP/13/Res.3. ASP, Resolution on Cooperation, 20 December 2011, ICC-ASP/10/Res.2. ASP, Resolution on Cooperation, 21 November 2012, ICC-ASP/11/Res.5. ASP, Resolution on Cooperation, 27 November 2013, ICC-ASP/12/Res.3. ASP, Summary of the Arusha seminar on witness protection (29–30 October 2013), 7th November 2013, ICC-ASP/12/36/Add.1. ASP, Summary on the seminar on fostering cooperation, held in Cotonou, Bénin, 28 November 2014, ICC-ASP/13/29/Add.2.

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ICC, Memorandum of Understanding between the International Criminal Court and the United Nations, on Building the Capacity of States to Enforce, in accordance with International Standards on the Treatment of Prisoners, Sentences of Imprisonment Pronounced by the Court, 26 September 2014, ICC‐PRES/15-02-14.



Online Materials

BBC News, ‘ICC staff “in jail” in Libya after Saif Gaddafi visit’, BBC News, 11 June 2012, available at: www.bbc.co.uk/news/world-africa-18394191 (last accessed 2 September 2015). Chatham House ‘Chatham House Rule’ Chatham House, 2014, available at: www .chathamhouse.org/about/chatham-house-rule (last accessed 1 September 2015).

A State’s Experience of Cooperation with the International Criminal Court: The Case of Belgium Gérard Dive and Julie de Hults 1 Introduction The purpose of the present chapter is to share the Belgian experience and know-how relating to Belgian cooperation with the icc. In this way, the chapter aims to reach two goals: first, offering food for thought for those decisionmakers who are interested in establishing or improving their own systems of cooperation; and, second, presenting a first-hand understanding of concrete implementation by a State of the provisions relating to cooperation with the icc to a larger audience. The authors’ intent is not, however, to claim that the Belgian experience is the only, or the best, model to be followed when establishing tools for cooperation with the icc. The chapter will first explain how cooperation has been established between Belgium and the Court and the functioning of the key organ of the system, the Belgian Central Authority for Cooperation with the icc and the other Inter­ national Criminal Tribunals. It then explains how this organ interacts with the network of all other national authorities involved in the implementation of cooperation provisions. The resort by Belgian authorities to a specific tool for cooperation in response to complex requests of assistance – that is, bilateral agreements on enhanced cooperation – will then be developed. Furthermore, some details will be provided on original provisions in the Belgian legislation, which respond to very specific situations where the icc Statute itself does not impose any obligation on State Parties to establish a specific procedure at the national level. The way the Belgian legislation treats the possibility offered by the icc Statute to postpone or refuse a request for assistance will be briefly touched upon. Before concluding, the chapter proposes some suggestions for improving the cooperation between States and the icc, based on the Belgian experience. 2

The Belgian Central Authority for Cooperation with the International Criminal Court

A The Establishment of the Belgian Central Authority The idea of establishing a Central Authority for cooperation with the International Criminal Tribunals came from the early experience of cooperation © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_012

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with the ictr and the icty (the ad hoc Tribunals). Soon after the beginning of the investigations launched by the ad hoc Tribunals, it transpired that – especially for the ictr – Belgium would become a key player in the field of cooperation. Therefore, the need to have a dedicated specialised unit became necessary when the Belgian Government tabled the first draft legislation organising judicial cooperation with the two ad hoc Tribunals. Art. 5 of the 22 March 1996 legislation1 designated the Minister of Justice as the Central Authority for cooperation. After the entry into force of the icc Statute2 in July 2002, the Belgian Government prepared a new piece of legislation encompassing all specific provisions for cooperation with the icc and replaced the former 1996 legislation. The 29 March 2004 legislation (2004 Cooperation Law)3 devoted a specific title to cooperation with the icc. Art. 5 expanded the role of the Minister of Justice as the Central Authority for cooperation with the icc.4 In 2005, due to the increasing number of requests for cooperation received by the Minister of Justice, it was decided to create a specific unit within the Ministry of Justice dealing with these requests and all matters relating to international humanitarian law and international criminal justice.5 The International Humanitarian Law Unit operated on behalf of the Minister of Justice until a 1 Loi du 22 mars 1996 relative à la reconnaissance du Tribunal international pour l’ex-Yougoslavie et du Tribunal international pour le Rwanda, et à la coopération avec ces Tribunaux, Moniteur belge, 27 April 1996. (The Moniteur belge (Belgisch Staatsblad in Dutch) is Belgium’s Official Journal). 2 unga, Statute of the International Criminal Court, 17 July 1998, un Doc. A/CONF. 183/9: 37 ilm 1002 (1998): 2187 unts 90. 3 Loi du 29 mars 2004 concernant la coopération avec la Cour pénale internationale et les tribunaux pénaux internationaux, Moniteur belge, 1 April 2004. 4 In 2006, the law was twice modified to expand the scope of the legislation to the cooperation with the Special Tribunal for Sierra Leone (Loi du 1 Juillet 2006 modifiant la loi du 29 mars 2004 concernant la coopération avec la Cour pénale internationale et les tribunaux pénaux internationaux, et insérant dans cette loi un nouveau Titre v concernant le Tribunal Spécial pour la Sierra Leone, Moniteur belge, 28 July 2006) and with the Extraordinary Chambers in the Courts of Cambodia (Loi du 1er juillet 2006 insérant dans la loi du 29 mars 2004 concernant la coopération avec la Cour pénale internationale et les tribunaux pénaux internationaux un nouveau titre vi concernant les Chambres extraordinaires chargées de poursuivre les crimes commis sous le régime du Kampuchéa démocratique, Moniteur belge, 2 August 2006). In 2014, the scope of the legislation was expanded to the cooperation with the Special Tribunal for Lebanon (Arts. 37-51 Loi du 25 mars 2014 modifiant la loi du 29 mars 2004 concernant la coopération avec la Cour pénale internationale et les tribunaux pénaux internationaux, Moniteur belge, 28 March 2014. 5 Arrêté royal du 17 septembre 2005 relatif à la création d’un service de droit international humanitaire, Moniteur belge, 31 March 2006.

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new piece of legislation, adopted in 2014,6 modified the 2004 Belgian legislation in order to directly designate the Unit as the Central Authority. The purpose of such an amendment was to avoid any misunderstanding concerning possible politicisation in the treatment of judicial requests. As Federal coordinator for cooperation with the international criminal jurisdictions,7 the Head of the International Humanitarian Law Unit is the Head of the Central Authority. It is important now to turn to the basis permitting the Central Authority to act as the unique Belgian channel of communication with the icc. B A Channel of Communication Since the entry into force of the 1996 legislation, all new requests for cooperation were directed to the Ministry of Justice for execution. However, no provision was included in the Statutes of the ad hoc Tribunals to deal specifically with the channel of communication between the Tribunals and a requested State. Therefore, from the very beginning, the ad hoc Tribunals used the diplomatic channel for that purpose, slowing down the process of the transmission of all requests, including urgent requests like those demanding arrest and surrender of suspects. The icc Statute, adopted on 17 July 1998,8 has offered a solution to this difficulty through Art. 87(1)(a), which states: The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession.9 When Belgium ratified the icc Statute, it designated the Ministry of Justice as the direct channel of communication between the icc and the Belgian authorities.10 This permits the Court to directly transmit requests for cooperation to the 6

Art. 3 Loi du 26 mars 2014 modifiant la loi du 29 mars 2004 concernant la coopération avec la Cour pénale internationale et les tribunaux pénaux internationaux, Moniteur belge, 28 March 2014. 7 Arrêté royal du 23 août 2014 portant organisation de la ‘Belgian Task Force for International Criminal Justice (btf icj)’, Moniteur belge, 5 September 2014. 8 unga, Statute of the International Criminal Court (1998) supra n 2. 9 Ibid. 10 ‘With reference to article 87, paragraph 1, of the Statute, the Kingdom of Belgium declares that the Ministry of Justice is the authority competent to receive requests for cooperation’. See un Treaty Collection, ‘Belgian declaration upon ratification of the icc Statute’,

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Ministry of Justice, bypassing the transmission of the request to the Belgian Embassy in The Hague, which would have had to send the request to the Ministry of Foreign Affairs in Brussels before transmitting it to the Ministry of Justice. Even better, the icc Statute offered an immediate way of communication by permitting the transmission of requests for arrest and surrender, provisional arrest and other forms of cooperation by any medium capable of delivering a written record, provided that the request is confirmed through the channel provided for in Art. 87(1)(a) icc Statute.11 In conformity with Art. 88 icc Statute, which requires State Parties to establish procedures under their national law for all forms of cooperation specified under Part ix icc Statute, this provision has been incorporated into Belgian law by Art. 6 of the 2004 Belgian legislation.12 In order to concretely implement this provision, the Central Authority has established a generic email address to which both the Registry and the otp13 directly transmit their requests for cooperation by scanned copy. Through one simple click, requests for cooperation are sent by the Court and received by the competent authority directly in charge of their execution. It is now necessary to understand how the Central Authority operates in the process of cooperation between the icc and the national authorities in charge of executing the requests. The Execution of Requests for Cooperation from the International Criminal Court When the Central Authority receives a request for cooperation, it acknowledges its receipt by sending a scanned letter, usually on the same day the request is transmitted. This letter contains a brief reference to the subject of the request. A copy of the Central Authority’s authorisation to implement sent to the competent national authorities for its concrete execution is annexed to the acknowledgment of receipt.14 C

11 12 13 14

un Treaty Collection, 28 June 2000 available at: https://treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en#EndDec (last accessed 04 March 2016). Respectively Art. 91(1), Art. 92(1) and Art 96(1) icc Statute. Art. 6 Loi du 29 mars 2004, supra n 3. Rule 176(2) icc rpe. There are two exceptions where the Central Authority’s authorization is not attached to the acknowledgment of receipt: First, when the executing authorities are the intelligence services and second, when the execution letter is classified under Belgian national legislation (loi du 11 décembre 1998 relative à la classification et aux habilitations, attestations et avis de sécurité, Moniteur belge, 7 May 1999).

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This procedure fulfils two purposes: first, the icc is informed that the request has been received and executed by the Central Authority. Second, the icc can check if the Central Authority has properly understood what it requested and if the action demanded of the competent national authorities adequately covers the scope of the request. From time to time, the execution of requests for cooperation requires action by more than one body. For instance, a request for arrest and surrender implies action by the Federal Prosecutor, the police forces, the detention authorities, the Ministry of Foreign Affairs (for potential diplomatic impact), the intelligence services (for security reasons), etc. In such cases, in order to ensure the smooth and coordinated execution of requests, the Central Authority gathers all the competent authorities in order to coordinate their action. This role is fulfilled by the Belgian Task Force for International Criminal Justice (btf icj), which will be discussed further in Section 3, infra. Once a request is executed by the competent authorities, they inform the Central Authority and transmit to it the documents drawn up and materials collected in this context. Thereafter, the Central Authority transfers the documents and materials to the Court. However, in order to speed up the process of transmission, the documents and materials that can be conveyed by scanned copy are sent by email. Sometimes, before a request can be complied with, its content or legal basis must be clarified by the Court. This is especially the case when the request reaches a certain level of complexity. This kind of situation is dealt with through the procedure under Art. 97 icc Statute, which relates to consultations. D Consultations under Article 97 International Criminal Court Statute Art. 97 icc Statute provides for a system to hold consultations when the competent authorities for cooperation identify problems which may impede or prevent the execution of the request. In such a situation, the State must consult with the Court without delay in order to resolve the matter. Such problems may include, for instance, insufficient information or factual or formal obstacles to execute the request. Being the unique channel of communication with the icc, the Central Authority has an advantage insofar as it is able to centralise any problems and solutions in such cases. In addition, having an extended knowledge of the icc structure, the Central Authority knows, and is known by, most of the key actors in charge of cooperation requests, both within the Registry and the otp. Once again, this setup facilitates and speeds up the process for finding adequate solutions. Where difficulties arise from the fact that the request is a complex one, it is also advantageous that the Central Authority is in charge of direct contacts

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with all national authorities involved in the execution of a request within the framework of the Belgian Task Force for International Criminal Justice. 3

The Belgian Task Force for International Criminal Justice

As indicated above, the increasing number15 and complexity of requests for cooperation received by the Central Authority led the Belgian Government to create the International Humanitarian Law Unit in order to deal with them on behalf of the Minister of Justice.16 At the same time, the experience acquired with the ictr and the icty showed the need to establish and coordinate a network of national authorities which are regularly consulted for the purpose of executing requests for cooperation. In 2014, based on the success of this functioning network, a Royal Decree formalised this mechanism, establishing the Belgian Task Force for Inter­ national Criminal Justice (btf icj). This Task Force enjoys a wide scope of competences, as it ought to serve as a platform for coordination, consultation and the exchange of information regarding to international criminal justice matters involving Belgium.17 The Head of the Central Authority for cooperation with the icc and other International Criminal Tribunals is the President of the btf icj and chairs its meetings.18 The btf icj can meet in three different settings: plenary meetings, meetings on specific cases pertaining mainly to cooperation or international immunities and meetings on classified cases restricted to the competent Belgian authorities with adequate clearance.19 A Plenary Meetings Three times a year, the plenary meetings of the btf icj gather all the member authorities of the Task Force.20 These administrative and judicial authorities 15 16 17

18 19 20

As of March 2016, the Central Authority has dealt with around 1000 requests for cooperation from icc and other international tribunals. The Royal Decree creating the International Humanitarian Law Unit entered into force in April 2006. Arrêté royal du 23 août 2014, supra n 7. The Royal Decree was published in the Official Journal (Moniteur belge/Belgisch Staatsblad) on 5 September 2014 and entered into force on 15 September 2014. Art. 2, §1er, Arrêté royal du 23 août 2014, supra n 7. Loi du 11 décembre 1998, supra n 14. Art. 2, §2, Arrêté royal du 23 août 2014, supra n 7.

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include all bodies potentially involved in the execution of requests for cooperation or assistance issued by the Court. The plenary meetings aim at considering transversal issues relating to international criminal justice and, notably, to existing provisions for cooperation with the international criminal justice mechanisms. The purpose of these meetings is largely to share information among interested authorities and to exchange analyses and identify lessons learnt in order to improve the existing practice and relevant provisions. Since its creation, the list of the Task Force members is as follows: – the Directorate-General for Coordination and Legal Affairs of the Federal Public Service (fps)21 Chancellery of the Prime Minister;22 – the International Humanitarian Law Unit of the fps Justice;23 – the Directorate-General Penitentiary Institutions of the fps Justice;24 – the Houses of Justice;25 – the State Security Service;26 – the Technical and Administrative Secretariat to the Minister of Justice;27 – the Directorate-General for Legal Affairs of the fps Foreign Affairs;28 – the Directorate-General for Consular Affairs of the fps Foreign Affairs;29 – the Directorate-General for Bilateral Affairs of the fps Foreign Affairs;30 21 22 23 24

25 26

27 28

29 30

Since 1999, the name ‘Federal Public Service’ was adopted by the Belgian federal government to replace ‘Ministry’. Involved in the execution of very sensitive requests for cooperation, such as the arrest of high profile icc suspects on the Belgian territory. As explained above, the ihl Unit houses the Central Authority. Already involved in the requests relating to the two arrests of icc suspects which took place on Belgian territory, the Directorate-General for Prisons would also be a key player for a request of enforcement of sentences. They could be activated in case of provisional release under conditions of an icc accused on Belgian soil. Belgium’s civil intelligence service is a useful partner for providing information relating to the impact in Belgium of specific requests for cooperation, like a request for arrest and surrender or the protection of witnesses. This is the liaison office of the Federal Police within the Justice Department. Involved namely in any analysis of rules of international law like, for instance, rules relating to international immunities or international responsibilities; they also intervene as the Central Authority’s focal point within the Foreign Affairs Department. Involved in the execution of requests needing the activation of Belgian consular agents abroad. Involved in providing useful information and analysis in order to better prepare the execution of specific requests.

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– the Permanent Representation of Belgium to the International Institutions in The Hague;31 – the Directorate-General Legal Support and Mediation of the Ministry of Defence;32 – the General Information and Security Service;33 – the Coordination Unit for Threat Analysis;34 – the International Unit of the fps Home Affairs;35 – the Directorate-General Crisis Centre of the fps Home Affairs;36 – the Immigration Office;37 – the Office of the Commissioner General for Refugees and Stateless Persons;38 – the Specialized Unit of Humanitarian Law of the Federal Judicial Police;39 – the Witness Protection Unit of the Federal Police;40 – the Federal Police in charge of the international alerts;41 – the Aeronautical Police;42 – the Administration of the Treasury of the fps Finance;43

31 32 33 34

35 36 37 38 39

40

41 42 43

Privileged link in The Hague with the icc, namely for direct contact with officials of the Court when someone from the Central Authority cannot travel to the seat of the Court. The Central Authority’s focal point within the Defence Department. Belgium’s military intelligence service, it provides similar information to the State Security Service, but for information relating to foreign countries. Organ in charge of the analysis of threat and the level of threat alert in the country, useful to determine the impact of execution of a specific request on the territory, like arrest and surrender of icc suspects, protection of officials of the Court visiting Belgium or protection of witnesses. The Central Authority’s focal point within the Home Affairs Department. Involved with the protection of high officials and important persons on the Belgian territory. Involved in execution of requests relating namely to visas or transit in Belgium. Involved when a foreigner has to receive the right to stay in Belgium for a certain period of time at the request of the icc. Unit within the Federal Police specifically charged with the execution of ordinary judicial requests for cooperation such as the arrest of icc suspects or the hearing of icc witnesses on Belgian soil. This Unit is in charge of the protection of witnesses in Belgium, either at the request of Belgian Tribunals or at the request of the icc, based on a decision taken by the Central Authority, in consultation with the Federal Prosecutor’s Office. The Belgian Interpol Office. Involved in any request implying a transit through a Belgian airport. The Central Authority’s focal point within the Finance Department.

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– the College of General Prosecutors;44 – the Federal Prosecutor’s office.45 B Meetings on Specific Cases When necessary, the President of the btf icj convenes a meeting on one or several complex specific files, which must be dealt with by different competent member authorities of the btf icj. The meetings mainly focus on: 1. complex requests for cooperation transmitted to Belgium by the international criminal justice mechanisms and vice versa;46 2. complex requests for inter-State mutual legal assistance regarding the prosecution and judgment of the crimes referred to in Art. 5 icc Statute (the crime of genocide, crimes against humanity and war crimes); 3. cases relating to the implementation of international immunity provisions having a potential judicial impact on Belgian territory. In addition, the President of the btf icj must convene a meeting of the btf icj when a request for cooperation concerns the implementation of bilateral agreements concluded by Belgium with an international criminal jurisdiction. At this time, Belgium has concluded six agreements with the icc.47 The representatives of the authorities whose competences are relevant for the execution of the request in question, in relation to the object of the file concerned, are invited to attend these meetings.48 Following the conclusion of such meetings, the Central Authority authorises the execution of the request by the competent national authorities49 or enters into consultations under Art. 97 icc Statute.50 These meetings on specific cases are organised regularly as the overall number of requests for cooperation has significantly increased over the years.51 44 45

Gathering of prosecutors with experience on interstate mutual legal assistance. Key player in a great number of requests of assistance, the Federal Prosecutor’s Office encompasses a specific section dealing with investigations relating to international humanitarian law and icc crimes and execution of icc requests of assistance presenting a judicial character. 46 For instance: a request for arrest and surrender. 47 For further details see Section 4 infra. 48 Art. 9 § 3, Arrêté royal du 23 août 2014, supra n 7. 49 See supra Section 2(C). 50 See supra Section 2(D). 51 As stated above, the Central Authority has dealt with around 1000 requests for cooperation from icc and other International Criminal Tribunals, among which more than 550 were from the icc.

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From time to time, dealing with a specific cooperation case forces the btf icj to take into consideration or to produce classified information or documents. C Meetings on Classified Cases Within the btf icj, the Belgian Task Force for International Criminal Justice – Restricted (btf-r) is tasked52 with the coordination, management and exchange of information relating to files falling within the scope of the btf icj and which are, or could be, classified under Belgian law.53 More specifically, the btf-r mainly deals with: 1. requests for cooperation relating to information or encompassing documents which are or could be classified under Belgian national law;54 2. files regarding the protection of threatened witnesses, under the request of the icc; 3. potential spontaneous acts of cooperation by Belgium aimed at transmitting originally classified information or documents which can help the icc in its judicial activities. These documents must be declassified by the btf-r before their transmission to the Court. For that purpose they could be reclassified under Art. 72 icc Statute;55 4. any transversal issue relating to the matters dealt with under points 1 to 3 above. The participants of such btf-r meetings are representatives of the authorities responsible for dealing with the case under consideration and must enjoy the adequate level of security clearance. The principal attendees at such meetings, besides the Central Authority, are the Federal Prosecutor’s Office, the Belgian intelligence agencies, the police authorities (in particular the Witness Protection Unit) and the Ministry of Defence. As explained in this Section, the btf-icj intervenes when Belgium has to deal with complex requests for assistance. A concrete tool frequently used by

52 Art. 11 Arrêté royal du 23 août 2014, supra n 7. 53 Loi du 11 décembre 1998, supra n 14. 54 Ibid. 55 Art. 72 icc Statute foresees potential disclosure of the information or documents of a State requested by the Court. It provides for a procedure to protect national security interests. In case of spontaneous acts of cooperation dealing with classified information or documents, Belgium and the icc apply Art. 72 procedure mutatis mutandis.

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Belgium in this context is the conclusion of bilateral agreements on enhanced cooperation. 4

Bilateral Agreements on Enhanced Cooperation

The experience with the icty demonstrated the usefulness of concluding bilateral agreements on enhanced cooperation with the international criminal justice mechanisms, as the Central Authority is regularly faced with the same category of complex requests for cooperation falling outside the scope of ordinary requests for mutual legal assistance.56 Under the Belgian legal system, such agreements are considered as ‘gentlemen’s agreements’ concluded for administrative purposes. Therefore, their conclusion only requires an exchange of letters signed by the head of the competent organ of the Court (or his/her representative) and by the Head of the Central Authority, respectively. Their entry into force is dealt with in the exchange of letters and does not need any ratification bill or approval by the Parliament. This legal status does not undermine the importance of such agreements focusing on the concrete management and implementation of specific requests for cooperation. The agreements permit the establishment of standard procedures and aim to solve potential legal or practical problems encountered during the execution of the request. It is also important to underline that these documents are framework agreements; additional specific requests are necessary to implement the agreement on a case-by-case basis. In addition, in accordance with Art. 21 icc Statute, the content of these agreements must be in conformity with the icc Statute and the icc rpe. Finally, except in specific situations explained below, their scope does not fall under Part ix icc Statute. Therefore, the cooperation established through these tools forms part of what must be called ‘voluntary assistance’ by a State to the Court. 56

Accord entre l’Organisation des Nations Unies et le Gouvernement du Royaume de Belgique concernant l’exécution des peines imposées par le Tribunal pénal international pour l’ex-Yougoslavie, La Haye, 2 May 2007 and Accord entre l’Organisation des Nations Unies et le Gouvernement du Royaume de Belgique concernant la protection et la réinstallation des témoins ayant obtenu le statut de témoin protégé auprès du Tribunal pénal international pour l’ex-Yougoslavie, conclu par échange de lettres datées respectivement du 29 octobre 2004 et du 1 décembre 2004.

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As stated above, Belgium has concluded six agreements on enhanced cooperation with the icc: one on witness protection in Belgium, another on protection of witnesses abroad, a third on close cooperation with the OTP, a fourth on air transport of detained witnesses or arrested suspects under icc arrest warrant summoned to appear before the Court, a fifth on the enforcement of sentences and, finally, a sixth on provisional release. The existence of all these ‘gentlemen’s agreements’ has been made public, but their content is largely confidential. Bilateral Agreement on the Protection and Relocation of Witnesses Protected by the International Criminal Court in Belgium In 2004, an agreement on the protection and relocation to Belgium of witnesses protected by the icc was concluded between Belgium and the Court.57 The agreement takes into account the very detailed provisions on protection of witnesses already set forth under Belgian national law and the existence and practice of Belgium’s Witness Protection Unit within the Federal Police. This agreement falls under the scope of Art. 93(1)(g) icc Statute only when the witnesses are already Belgian residents at the time protection is requested by the Court. In this context, Art. 86 icc Statute applies and Belgium is under the obligation to deliver the requested protection. In any other case, the implementation of the agreement is part of the voluntary assistance provided by Belgium to the Court. All decisions by Belgium to accept a new protected witness on its territory and to offer the necessary protective measures are taken by the Central Authority, on a case-by-case basis, following a meeting of the btf-r on the relevant specific case. A

B Bilateral Agreement on Protection of Witnesses Abroad In 2009, Belgian support to the Court for the protection of witnesses expanded, by concluding a new agreement58 for a triangular system of protection. This new programme placed the Court and two States into a relationship: the first

57 58

This agreement was concluded by exchange of letters dated respectively 29 September 2004 and 29 October 2004. Accord entre la Belgique et la Cour pénale internationale en vue de la participation belge, notamment financière, à des programmes de protection sur le territoire d’un Etat tiers, d’un témoin, d’une victime qui comparait, ou d’une personne à laquelle les dépositions des témoins peuvent faire courir un risque et le cas échéant, de leurs parents proches. This Agreement was concluded by exchange of letters dated respectively 6 February 2009 and 23 February 2009.

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State, a foreign State, accepts the protected witness on its territory and Belgium provides for specific assistance, including financial contributions. This system falls per se under the scope of voluntary assistance by Belgium to the Court. Again, all decisions by Belgium to accept new requests for assistance are made by the Central Authority on a case-by-case basis. Bilateral Agreement on Close Cooperation with the Office of the Prosecutor In 2006, Belgium already faced situations in which requests from the otp required potential disclosure of classified information or documents under Belgian legislation. In order to establish a standard procedure to speed up this kind of process, a new bilateral agreement on enhanced cooperation was concluded by the Belgian Central Authority with the otp.59 Most cases covered by this agreement are part of the mandatory provisions on cooperation. The content of this agreement, as with the others, mainly deals with procedural matters. This agreement was amended in 2010 with the purpose of identifying existing capacities for forensic assistance and to facilitate the execution by the competent Belgian authorities of such requests transmitted by the otp.60

C

Bilateral Agreement on Air Transport of Detained Witnesses or Arrested Suspects under International Criminal Court Arrest Warrant Summoned to Appear before the Court Soon after initiating its first investigations, the Court anticipated the situation where suspects will potentially be arrested far from the seat of the Court in The Hague. To this end, transfer of surrendered persons under Art. 89 icc Statute would require the use of air transport. Originally, the Court depended on private air transport or on specific ad hoc agreements concluded with a State every time the Court faced the need for new air transport. Willing to offer a permanent solution to the Court in this regard and paving the way for similar agreements concluded by other States, in 2007 Belgium D

59

60

icc, Memorandum of Understanding between Belgium and the Office of the Prosecutor of the International Criminal Court on International Cooperation and Judicial Assistance, 6 February 2006. icc, Protocol to the Memorandum of Understanding between Belgium and the Office of the Prosecutor of the International Criminal Court on International Cooperation and Judicial Assistance, 21 April 2010.

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approved a new gentlemen’s agreement on air transport of detained witnesses or arrested suspects under icc arrest warrant summoned to appear before the Court.61 Here again, requests transmitted under the scope of this agreement form part of the voluntary assistance provided by Belgium to the Court. E Bilateral Agreement on Enforcement of Sentences In 2012, the Court rendered its first decision convicting a suspect for war crimes at the level of the Trial Chamber.62 This decision demonstrated the need for the icc to quickly expand the number of bilateral agreements on the enforcement of sentences concluded by the Court in accordance with Art. 103 icc Statute. Belgium had concluded such an agreement during the Review Conference held in Kampala two years earlier, in 2010.63 The content of this agreement provides for concrete procedures permitting the enforcement of sentences rendered by the Court (under Part x icc Statute). With the increasing number of cases, the need for the Court to utilise such bilateral agreements will increase. F Bilateral Agreement on Provisional Release Art. 60(2) icc Statute offers the possibility to persons subject to a warrant of arrest to apply for interim release pending trial. Belgium was the first State to conclude a bilateral agreement on interim release with the Court in 2014.64 Before concluding this agreement, Belgium specifically adapted its legislation on cooperation in order to be able to implement any condition imposed by the Court. The agreement covers two different stages within the interim release procedure. 61 62 63

64

Accord entre la Belgique et la Cour pénale internationale concernant le transport aérien de personnes détenues et amenées à comparaître devant la Cour, 2 May 2007. icc, Prosecutor v Thomas Lubanga Dyilo Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842 (14 March 2012). icc, ‘Agreement between the International Criminal Court and the Government of the Kingdom of Belgium on the Enforcement of Sentences of the International Criminal Court ICC-PRES/06-01-10’, icc, 1 June 2010, available at: www.legal-tools.org/doc/24f3d9/ (last accessed 04 March 2016). icc, ‘Agreement between the Government of the Kingdom of Belgium and the International Criminal Court (icc) on the interim release of detainees on the Belgian territory pursuant to decisions of the Chambers of the Court’, icc, 10 April 2014, ICC-CPI20140410-PR993, available at: www.icc-cpi.int/en_menus/icc/press%20and%20media/ press%20releases/pages/pr993.aspx (last accessed 04 March 2016).

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First, it organises the way the Court can seek the views of Belgium in accordance with Rule 119(3) icc rpe65 and Regulation 51 RoC.66 This procedure requests the concerned State to transmit its observations on the possibility for the Court to release the person onto its territory and on the potential conditions to this end. Second, if and when the Court has decided, with the consent of Belgium, to release the person onto its territory, the agreement concretely organises the transfer of the person to Belgian soil. It is important to emphasise that this agreement falls under the scope of voluntary assistance by Belgium to the Court. Nevertheless, it is also important to underline the specific situation when the released person is a Belgian national or a person enjoying the right to stay on Belgian soil at the time of his or her release. The question whether, in such a case, Belgium would be obliged in any way to accept that person on its territory, under any condition imposed by the Court, is still to be resolved. Bilateral agreements allow the creation of framework solutions for concretely facilitating the execution of certain categories of complex requests for assistance. In enacting such agreements, Belgian legislation has been adapted, in accordance with Art. 88 icc Statute, which states that: ‘States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part [ix icc Statute]’. However, the implementation of some categories of requests could demand the use of additional tools under national legislation, which are not always foreseen by the mandatory icc Statute obligations. 5

Specific Provisions on Certain Requests for Cooperation

In 2014, drawing upon its experience with complex requests for cooperation, Belgium introduced specific provisions in order to secure the complete execution of certain requests for cooperation in the 2004 Belgian cooperation law.67 These provisions are particularly notable as their insertion within national procedures does not correspond to any obligation established by the icc

65 66 67

Rule 119(3) icc rpe. icc, Regulations of the Court adopted by the Judges of the Court on 26 May 2004 at its 5th Plenary Session, 26 May 2004, ICC-BD/01-01-04. Loi du 29 mars 2004, supra n 3.

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Statute itself, and therefore does not fall within the scope of Art. 88 icc Statute, to which the preceding sections referred. It is useful to explain how the Belgian legislation responds to this kind of situation in relation to summons to appear, seizure and order of contribution and emergency arrest in cases of interim release. A Summons to Appear The icc Statute provides for an alternative to the deliverance of a warrant of arrest in order to obtain the appearance of a suspect before the Court. Pursuant to Art. 58(7) icc Statute: If the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to ensure the person’s appearance, it shall issue the summons, with or without conditions restricting liberty (other than detention) if provided for by national law, for the person to appear.68 It is interesting to consider that the drafters of the icc Statute decided not to impose on State Parties the obligation to provide for appropriate national procedures enabling the implementation of conditions attached to a summons to appear issued by the Court. Moreover, the icc Statute itself does not prescribe any procedure in cases where the person does not respect the conditions imposed. Only Rule 119 icc rpe takes this situation into consideration and confirms that the Court must first take into account the existing national provisions before deciding to impose conditions in relation to the summons to appear.69 Consequently, the 2004 Cooperation Law was amended in 2014 in order to introduce a new Art. 20 ter, which allows the Central Authority to request the competent national authorities to impose any conditions decided by the Court, based on a request for assistance sent by the Court, when the person subject to a summons to appear is located in Belgium.70 If the person does not respect these conditions, the Central Authority must immediately, once duly informed, notify the Court.71 The rationale behind this notification procedure under Belgian law is to offer the Court the opportunity

68 Art. 58(7) icc Statute. 69 Rule 119(5) icc rpe. 70 Art. 20 ter, Loi du 29 mars 2004, supra n 3. 71 Ibid.

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to decide, in due time, to deliver a warrant of arrest replacing the summons to appear.72 This is the first example of a procedural rule, introduced in the 2004 Cooperation Law, which does not correspond to a statutory obligation to this end. B Seizure and Order of Contribution Rule 21(5) icc rpe authorises the competent Chamber to make an order of contribution to recover the cost of providing counsel where a person originally claimed to have insufficient means to pay for legal assistance and this is subsequently found not to be the case.73 There is no explicit legal basis for this Rule in Part xi icc Statute. Therefore, again, the introduction into Belgian law of adequate provisions to implement Rule 21(5) icc rpe does not fall within the scope of Art. 88 icc Statute. Nevertheless, in 2014, a new Art. 26(3) was inserted into the 2004 Cooperation Law, as follows: When the Chamber dealing with a case has issued an order of contribution in accordance with the Rules of Procedure and Evidence, and the assets of the accused person are located on the Belgian territory, the seizure and transfer of those assets to the Court shall take place at the request of the Court, in order to render the recovery of the costs advanced in the framework of legal assistance possible.74 This provision has not yet been activated by the Court. C Emergency Arrest in Cases of Interim Release Pursuant to Art. 60 icc Statute, the Court can release a detained suspect pending trial, with or without conditions, if certain criteria are met.75 A non-exhaustive list of conditions under which interim release can be granted is provided in Rule 119 icc rpe.76 The decision to grant, prolong or cancel interim release, or to change the conditions thereof, is periodically reviewed by the Court.77

72 73 74 75 76 77

See also Rule 119(5) icc rpe, last sentence. Rule 21(5) icc rpe. Art. 26 §3, Loi du 29 mars 2004, supra n 3. Art. 60(2) combined with Art 58 icc Statute. Rule 119(1) icc rpe. Art. 60(3) icc Statute.

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If interim release is granted under certain conditions, the Court can decide to issue a warrant of arrest if the competent Chamber ‘is convinced that the person concerned has failed to comply with one or more of the obligations imposed’.78 In addition, Art. 60 icc Statute allows the Court to deliver ‘a warrant of arrest to secure the presence of a person who has been released’.79 At first glance, these provisions seem to offer a complete framework allowing interim release of an arrested person and avoiding his or her disappearance in cases where the released person does not comply with the conditions attached to the decision of release. Nevertheless, in reality, these provisions encounter an important ‘loophole’, which affords to the person released under conditions – and who has breached these conditions – the possibility to flee before the Court delivers a new warrant of arrest. The Central Authority is the first to be informed when the person has violated the conditions imposed by the Court. Following this, the Registry must be informed by the Central Authority in order to trigger the procedure before the competent Chamber to issue a new warrant of arrest. These processes could amount to a few days, which represent the abovementioned ‘loophole’. In order to close the loophole, the 2004 Cooperation Law was amended in 2014. The new Art. 20 bis regulates this situation. The Law now allows a Belgian investigating Federal Judge, acting at the request of the Federal Prosecutor’s Office or at the request of the Central Authority, to issue a warrant of arrest for a person who does not comply with the conditions under which interim release is granted by the Court. His or her order, against which no appeal is possible, must be communicated immediately to the Federal Prosecutor’s Office. The latter will then immediately notify the Central Authority, which shall, in turn, promptly inform the Court.80 The warrant of arrest issued by the investigating Judge is valid for fifteen days.81 This period of time has been considered sufficient for the Court to implement Rule 119(4) icc rpe or Art. 60(5) icc Statute, as explained above. However, if at the end of this period of fifteen days, the Central Authority has not been notified by the Court with an icc request for arrest and surrender,82 or an icc request for provisional arrest,83 the person concerned 78 79 80 81 82 83

Rule 119(4) icc rpe. Art. 60(5) icc Statute. Art. 20 bis § 2, Loi du 29 mars 2004, supra n 3. Art. 20 bis § 3, Loi du 29 mars 2004, supra n 3. Art. 91 icc Statute. Art. 92 icc Statute.

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will be released under the same conditions as those previously granted by the Court.84 Now that the manner in which the Belgian authorities are organised to improve their cooperation with the Court has been explored and explained, it seems necessary to briefly touch upon the ways in which Belgian legislation addresses the possibility to postpone or refuse requests for assistance set forth in the icc Statute. 6

Postponement of Execution and Refusal of the Request for Assistance in Certain Specific Cases

The drafters of the icc Statute explicitly chose to list and define all the possibilities for postponement or refusal of a request for assistance transmitted to a State bound by the general obligation to cooperate with the Court.85 This choice presents the considerable advantage of limiting the State’s margin of appreciation when examining whether to comply with such a request. Most of the provisions of the icc Statute referred to in this section do not need, legally speaking in terms of the Belgian system, explicit implementation into the national legislation. However, the Belgian authorities decided to insert them into the Belgian 2004 Cooperation Law, essentially by means of duplication, largely having two goals in mind: first, the completeness and clarity of the Belgian legislation; second, to restrict any potential decision by the Central Authority to postpone or refuse a request for assistance to the possibilities set forth by the icc Statute, and only to these possibilities, in the exact terms established by the icc Statute. Three provisions of the Belgian 2004 Cooperation Law deserve to be mentioned in this regard: those implementing Arts. 93, 94 and 95 icc Statute into Belgian law.86 Finally, it is important to underline that the implementation of Art. 93(4), Art. 94 and Art. 95 icc Statute is without prejudice to the procedure of consultation under Art. 97 icc Statute, which has already been dealt with under Section 2(D) of this chapter.

84 85 86

Art. 20 bis §3, al. 2, Loi du 29 mars 2004, supra n 3. Art. 86 icc Statute. Arts. 93, 94 and 95 icc Statute.

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A Article 93 Paragraph 4 of the International Criminal Court Statute The experience of working with the ad hoc Tribunals, and mainly the icty, demonstrates that national security is generally the most delicate argument put forward by States to refuse or postpone a request for assistance.87 Art. 72 icc Statute contains detailed provisions dealing with the protection of national security information.88 This provision ‘applies in any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests’.89 Art. 72 icc Statute establishes a complex procedure whose purpose is to request the State concerned to take ‘all reasonable steps […], in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means’.90 If the information or document concerned is sought by the Court pursuant to a request for assistance transmitted under Part ix icc Statute, the requested State can invoke Art. 93(4) icc Statute to deny the request, in whole or in part, only for the reason that the production of such a document or the disclosure of the requested evidence relates to its national security.91 If, at the end of the process, the Court is not convinced by the State’s arguments, this refusal triggers a complex procedure,92 which can lead to an order of disclosure or to a finding that the State has failed to comply with its obligation to cooperate. Such a finding can be referred by the Court to the asp or, where the unsc referred the matter to the Court, to the unsc.93 Art. 31 of the Belgian 2004 Cooperation Law provides that the Central Authority is responsible for deciding whether there are serious grounds for considering that the execution of a request for assistance can prejudice national security. If this is the case, the Central Authority must immediately inform the Court and enter into the procedure provided in Art. 72 icc Statute.94

87

88 89 90 91 92 93 94

Trapani, ‘Art. 72. Protection of national security information’ in De Hert, Flamme, Holvoet and Stuyven (eds), Code of International Criminal Law and Procedure, Annoted (Minimenstraat: Larcier Law Annoted, 2013) 366. See also icty, Prosecutor v Tihomir Blaškić Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber ii of 18 July 1997, IT-95-14 (29 October 1997) at para 65. Art. 72 icc Statute. Its seven paragraphs makes it one of the most detailed article of the Statute. Art. 72(1) icc Statute. Art. 72(5) icc Statute. Art. 93(4) icc Statute. See Art. 72(7) icc Statute. For this latter part, see also Art. 87(7) icc Statute. Art. 31, Loi du 29 mars 2004, supra n 3.

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Art. 93(4) icc Statute is the only example of refusal to cooperate mentioned in this sub-section. Turning to Arts. 94 and 95 icc Statute, situations of postponement of a request for assistance will be now be examined. B Article 94 of the International Criminal Court Statute Art. 94 icc Statute addresses cases of postponement, rather than refusal to cooperate. This provision regulates the situation where ‘the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates’.95 Safeguards are understandably explicitly mentioned in Art. 94 icc Statute. First, the period of postponement must have been agreed upon by the Court; second, this period is limited to what is strictly necessary for the relevant investigation or prosecution in the requested State to be completed; and third, the requested State should consider whether the assistance may be immediately provided subject to certain conditions before making a decision to postpone.96 Finally, if the Court agrees on the decision to postpone, the Prosecutor is able to request the Court to exercise the right to seek measures to preserve evidence.97 Once again, Art. 29 of the Belgian 2004 Cooperation Law pursues two goals: explicitly referring to the procedure established by Art. 94 icc Statute, and giving the key role for the decision of postponement and communication with the Court to the Central Authority.98 C Article 95 of the International Criminal Court Statute The second and last case of postponement of a request for assistance is dealt with under Art. 95 icc Statute. This provision regulates the situation where an admissibility challenge is under consideration by the Court pursuant to Arts. 18 or 19 icc Statute. In this case, the period of postponement corresponds to the time necessary for the Court to make its determination on this challenge.99 Here again a safeguard is put in place during the period of postponement: the Court can specifically order that the Prosecutor may pursue the collection of evidence.100 As with Art. 31 of the 2004 Belgian Cooperation Law, Art. 30 provides that the Central Authority is responsible for deciding and informing the Court about the postponement.101 95 Art. 94(1) icc Statute. 96 Ibid. 97 Art. 94(2) icc Statute. 98 Art. 29, Loi du 29 mars 2004, supra n 3. 99 Art. 95 icc Statute. 100 Ibid. 101 Art. 30, Loi du 29 mars 2004, supra n 3.

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Having examined in some detail in the preceding sections the procedures pursuant to which Belgium cooperates with the icc, it seems useful to draw on this experience in order to suggest some tools for States willing to improve their own rules and practices pertaining to cooperation. 7

Tools to Improve Cooperation

Having had a functioning Central Authority for nearly ten years at the time of writing, the experience of Belgium might be helpful for other countries that wish to set up similar tools to improve their cooperation with the icc. Seven different ideas will therefore be briefly touched upon based on the developments presented above. A Central Authority for Cooperation The option of establishing a Central Authority for cooperation is certainly an important tool to be considered by any country wishing to improve their cooperation with the icc. Even if the number of requests received by a State is limited, giving the task to an existing Unit within the Ministry of Justice or within the Ministry of Foreign Affairs as a unique channel of communication between the State concerned and the Court offers numerous advantages. First, there is the certainty that the Court will reach the competent authority regardless as to what the request relates. Second, the role of identifying the competent national authorities responsible for executing the request is the duty of the centralised national organ for cooperation, and not the responsibility of the Court. Third, the Central Authority can easily identify in advance all potential authorities that may be involved in the implementation of requests. Fourth, having identified all the authorities responsible for dealing with requests for cooperation, the Central Authority is best placed to create a sub-network of authorities. This allows for the sharing of knowledge and know-how before facing, or at the time they face, new requests – which could easily be complex requests – that the State is under international obligation to execute. Finally, setting up a Central Authority reinforces the capacity of the national authorities to respect the local procedures that should be followed while implementing such requests. B Vade Mecums and Templates A second idea to explore is the drafting of vade mecums and templates. The existence of vade mecums and templates helps the daily work of all persons involved in responding to cooperation requests. At the time of writing, the Belgian Central Authority is drafting a vade mecum on cooperation with

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templates and information on contact points for each kind of request for cooperation with the icc. This vade mecum covers a large variety of requests, such as hearing of witnesses, arrest and surrender, search and seizure of assets, protection of witnesses, technical or scientific assistance, as well as provisional release, enforcement of sentences, transit of witnesses, delivering of visas, transfer of detained witnesses, video-conference, lifting of immunities, phone taps, protection of personnel, etc. The two main advantages of this very practical tool is to compile and safeguard the knowledge and know-how on the one hand, and to speed up the process of handling a specific request on the other. C Specialised Units and Focal Points In order to have in every authority that could be involved in the execution of a request a person with knowledge of the icc, and of the obligations a requested State is under when it receives a request for cooperation, the designation of a focal point is a key factor. In Belgium, as stated above, the Royal Decree on the btf icj102 requires that every authority that could be involved in the implementation of a request for cooperation appoint a contact point. Some requests for cooperation are extremely urgent, delicate and complex. For instance, when the Court issues a warrant of arrest under seal, the swift cooperation of the State where the suspect is found is crucial for its execution. Consequently, the existence of pre-existing focal points within each authority involved (e.g. police, intelligence, prosecutor, etc.) helps to quickly coordinate such requests for cooperation. D Coordination Meetings As explained above in Section 3, the btf icj holds plenary meetings on transversal issues relating to international criminal justice and, notably, on cooperation with the international criminal justice mechanisms. These larger meetings offer a perfect platform for exchange of information, practices and know-how within the national authorities involved. Besides, the Central Authority also convenes meetings of the btf icj on one or several specific requests for cooperation. For instance, the btf icj regularly meets to follow up on all mutual legal assistance requests, extradition requests, applications for residence and other matters relating to a specific situation where mass atrocities were committed, whether they are requests from one of the ad hoc Tribunals or requests for inter-State cooperation. This also allows for consistency in the way the cooperation is undertaken by Belgium. 102 Art. 2, Arrêté royal du 23 août 2014, supra n 7.

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E Bilateral Agreements As detailed in Section 4 above, Belgium has entered into several bilateral agreements with the icc. These agreements are essential to solve in advance a number of purely procedural and technical difficulties which could appear during the execution of complex acts of cooperation. Moreover, if a State has concluded a bilateral agreement on enhanced cooperation with the icc, it sends a signal to the Court showing a real willingness to cooperate within the scope of the agreement concluded. For instance, if Belgium had not concluded an agreement on air transport with the Court, its assistance would probably not be sought in the first place by the Court when facing such a need. In addition, the existence of such agreements permits the Court to directly transmit new requests to a State which, at first glance, will view them favourably. This is true even if a bilateral agreement is a framework agreement, and the State concerned must give its final agreement on a case-by-case basis. This is extremely important when the request for assistance does not fall under any obligation in the icc Statute and when confidentiality is a key factor to be respected. The best example for this kind of situation is when a request for assistance pertaining to the protection of a witness is transmitted to a State where the witness is not located. For obvious reasons of security, it is important that the Court send the request and all necessary information related to the witness to a State which already has the willingness to help the Court in such circumstances. F Spontaneous Acts of Cooperation In order to facilitate prosecutions and to speed up the process of justice and the fight against impunity, but also to spare money for the State Parties and the icc, the Central Authority can spontaneously transmit information or pieces of evidence gathered by the competent Belgian authorities, which relate to one or more situations currently under investigation by the icc. G Reinforce Inter-State Cooperation As stated by the Preamble to the icc Statute,103 it is the primary responsibility of all States to comply with their international obligations to end impunity for the crimes of genocide, crimes against humanity and war crimes. This responsibility notably includes thorough investigation and prosecution at the domestic level of persons responsible for such crimes. This is not only to adequately criminalise violations of international law, but also to avoid the recurrence 103 Preambular paras 4, 5, 6, and 8, and Art. 1 icc Statute.

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of such heinous atrocities.104 Because of the very nature of these most serious international crimes, the suspects, witnesses, evidence and assets relating to these crimes are often not limited to the territory of one single State. This means that the States that have to investigate and prosecute these crimes have to cooperate practically and judicially in order to be truly effective in the fight against impunity and to comply with their international obligations. This is the only way to avoid the creation of safe havens for perpetrators of mass atrocities. Nevertheless, it is fascinating to contemplate the fact that when dealing with an inter-State mutual legal assistance (mla) request concerning a minor act of international corruption, there are modern, complete and efficient treaties which contains legal tools for mla and extradition. But if the request deals with the crime of genocide, crimes against humanity or war crimes, the international procedural legal framework is either incomplete and outdated,105 or non-existent.106 Consequently, Argentina, Belgium, the Netherlands and Slovenia have launched an initiative to open negotiations for a new international instrument on legal assistance and extradition for the domestic prosecution of war crimes, crimes against humanity and the crime of genocide. A declaration tabled during the 12th session of the asp107 followed by a permanent declaration not linked to any existing international forum and calling for the opening of such negotiations have already been endorsed by dozens of States coming from the five un regional groups.108 Such a treaty would considerably ameliorate the existing inter-State cooperation in this field, offering common provisions for cooperation at the international level and allowing certain acts of cooperation where the absence of a treaty could present a legal obstacle.109 104 105 106 107

Preambular para 5 icc Statute. This is the case for the crime of genocide and war crimes. This is mainly the case for the crimes against humanity. asp, Assembly of States Parties to the Rome Statute of the International Criminal Court; Twelfth Session, 20–28 November 2013, ICC-ASP/12/20, at Annex viii, Statement by Argentina at 83.  The text of the Declaration can be found on the website of the asp to the icc Statute: asp, Assembly of States Parties to the Rome Statute xiith session 20–28 November 2013 Open Joint statement by Argentina, Belgium, Netherlands, Slovenia and others, icc, November 2013, available at: www.icc-cpi.int/iccdocs/asp_docs/ASP12/GenDeba/ICC -ASP12-GenDeba-Netherlands-Joint-ENG.pdf (last accessed 04 March 2016). 108 As of 04 March 2016, 48 States have co-sponsored the initiative. 109 This is namely the case for States which are under constitutional obligation to base any acceptance of a request for extradition on a treaty providing for adequate provisions and binding both the requested and the requesting State.

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8 Conclusion Rome was not built in a day. As has been explained in this chapter, the first legislation relating to cooperation between Belgium and the ad hoc Tribunals (the icty and the ictr) dated back to 1996. After being expanded to include cooperation with the icc in 2004, the legislation has been amended three times since, and the last time in depth, based on the experience acquired when facing requests for cooperation. The International Humanitarian Law Unit was established in 2006, based on a Royal Decree signed in 2005, with one of its key objectives to deal with all matters falling within the competence of the Central Authority for cooperation. A network of national authorities involved in the execution of the requests for cooperation was operational on an informal basis for a significant period, before being formally supported by a Royal Decree in 2014. The first bilateral agreement on enhanced cooperation with the icc was concluded by Belgium in 2004, the last (for the time being) and sixth one dates from 2014. This long journey has been paved with a sizeable number of hurdles, surprises and mistakes, which have largely been overcome, met and adjusted. However, there are always possibilities to improve tools for cooperation and the most important thereof is to remain seized of this matter without resting on one’s laurels. If this chapter has offered a good understanding of how cooperation between the icc and a State Party – willing to cooperate – looks like in the real world, and has given some solutions which could inspire others following the same quest, it has not been written in vain. List of References Books and Journals

Trapani, ‘Art. 72. Protection of national security information’ in De Hert, Flamme, Holvoet and Stuyven (eds), Code of International Criminal Law and Procedure, Annoted (Minimenstraat: Larcier Law Annoted, 2013) 366.

Legal Cases and United Nations Documents

ICC, Prosecutor v Thomas Lubanga Dyilo Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842 (14 March 2012). ICTY, Prosecutor v Tihomir Blaškić Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, IT-95-14 (29 October 1997).

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UNGA, Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CONF. 183/9: 37 ILM 1002 (1998): 2187 UNTS 90.

Other Documents

Accord entre l’Organisation des Nations Unies et le Gouvernement du Royaume de Belgique concernant la protection et la réinstallation des témoins ayant obtenu le statut de témoin protégé auprès du Tribunal pénal international pour l’ex-Yougoslavie, conclu par échange de lettres datées respectivement du 29 octobre 2004 et du 1 décembre 2004, UN and Government of Belgium. Accord entre l’Organisation des Nations Unies et le Gouvernement du Royaume de Belgique concernant l’exécution des peines imposées par le Tribunal pénal international pour l’ex-Yougoslavie, La Haye, 2 May 2007, UN and Government of Belgium. Accord entre la Belgique et la Cour pénale internationale concernant le transport aérien de personnes détenues et amenées à comparaître devant la Cour, 2 May 2007, Government of Belgium and ICC. Accord entre la Belgique et la Cour pénale internationale en vue de la participation belge, notamment financière, à des programmes de protection sur le territoire d’un Etat tiers, d’un témoin, d’une victime qui comparait, ou d’une personne à laquelle les dépositions des témoins peuvent faire courir un risque et le cas échéant, de leurs parents proches, conclu par échange de Lettres datées respectivement du 6 février 2009 et du 23 février 2009, Government of Belgium and ICC. Arrêté royal du 17 septembre 2005 relatif à la création d’un service de droit international humanitaire, Moniteur belge, 31 March 2006, Government of Belgium. Arrêté royal du 23 août 2014 portant organisation de la ‘Belgian Task Force for International Criminal Justice (BTF ICJ)’, Moniteur belge, 5 September 2014, Government of Belgium. ASP, Assembly of States Parties to the Rome Statute of the International Criminal Court; Twelfth Session, 20–28 November 2013, ICC-ASP/12/20, Annex VIII, Statement by Argentina. ICC, Regulations of the Court adopted by the Judges of the Court on 26 May 2004 at its 5th Plenary Session, 26 May 2004, ICC-BD/01-01-04. ICC, Memorandum of Understanding between Belgium and the Office of the Prosecutor of the International Criminal Court on International Cooperation and Judicial Assistance, 6 February 2006. ICC, Protocol to the Memorandum of Understanding between Belgium and the Office of the Prosecutor of the International Criminal Court on International Cooperation and Judicial Assistance, 21 April 2010. Loi du 22 mars 1996 relative à la reconnaissance du Tribunal international pour l’exYougoslavie et du Tribunal international pour le Rwanda, et à la coopération avec ces Tribunaux, Moniteur belge, 27 April 1996, Government of Belgium.

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Loi du 11 décembre 1998 relative à la classification et aux habilitations, attestations et avis de sécurité, Moniteur belge, 7 May 1999, Government of Belgium. Loi du 29 mars 2004 concernant la coopération avec la Cour pénale internationale et les tribunaux pénaux internationaux, Moniteur belge, 1 April 2004, Government of Belgium. Loi du 1 juillet 2006 modifiant la loi du 29 mars 2004 concernant la coopération avec la Cour pénale internationale et les tribunaux pénaux internationaux, et insérant dans cette loi un nouveau Titre v concernant le Tribunal Spécial pour la Sierra Leone, Moniteur belge, 28 July 2006, Government of Belgium. Loi du 1er juillet 2006 insérant dans la loi du 29 mars 2004 concernant la coopération avec la Cour pénale internationale et les tribunaux pénaux internationaux un nouveau titre VI concernant les Chambres extraordinaires chargées de poursuivre les crimes commis sous le régime du Kampuchéa démocratique, Moniteur belge, 2 August 2006, Government of Belgium. Loi du 26 mars 2014 modifiant la loi du 29 mars 2004 concernant la coopération avec la Cour pénale internationale et les tribunaux pénaux internationaux, Moniteur belge, 28 March 2014, Government of Belgium.

Online Materials

ASP, Assembly of States Parties to the Rome Statute XIIth session 20–28 November 2013 Open Joint statement by Argentina, Belgium, Netherlands, Slovenia and others, ICC, November 2013, available at: www.icc-cpi.int/en_menus/asp/sessions/ general%20debate/Pages/general%20debate%20_%20twelfth%20session.aspx (last accessed 04 March 2016). ICC, ‘Agreement between the Government of the Kingdom of Belgium and the International Criminal Court (ICC) on the interim release of detainees on the Belgian territory pursuant to decisions of the Chambers of the Court’, ICC, 10 April 2014, ICCCPI-20140410-PR993, available at: www.icc-cpi.int/iccdocs/asp_docs/ASP12/GenDeba/ ICC-ASP12-GenDeba-Netherlands-Joint-ENG.pdf (last accessed 04 March 2016). ICC, ‘Agreement between the International Criminal Court and the Government of the Kingdom of Belgium on the Enforcement of Sentences of the International Criminal Court ICC-PRES/06-01-10’, ICC, 1 June 2010, available at: www.legal-tools.org/ doc/24f3d9/ (last accessed 04 March 2016). UN Treaty Collection, ‘Belgian declaration upon ratification of the ICC Statute’, UN Treaty Collection, 28 June 2000 available at: www.treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en#EndDec (last accessed 06 March 2016).

Strengthening the International Criminal Court Cooperation Regime from the European Union’s Perspective Christian Behrmann 1

The European Union’s Policy in Support of International Criminal Justice

The eu stands in the strong tradition of supporting the fight against impunity for the most serious crimes of concern to the international community as a whole. Nowhere should be a safe haven for those who have committed the crime of genocide, crimes against humanity and war crimes. To this end, the eu has continued to give strong support – both politically and diplomatically, as well as logistically and financially – to the effective functioning of international criminal justice mechanisms, in particular the icc. The European Security Strategy (ess) of 20031 states that one of the strategic objectives of the eu is an international order based on effective multilateralism. Support for the icc is highlighted as an example of the eu’s commitment to a rule-based international order. In order to enable Europe to contribute to a more effective multilateral order around the world, the 2008 Report on the Implementation of the ess2 states that the icc should grow further in effectiveness, alongside broader eu efforts to strengthen international justice and human rights. 2

The International Criminal Court as a Key Prerequisite for Achieving the European Union’s Priorities

The principles of the icc Statute, as well as those governing its functioning, are fully in line with the principles and objectives of the eu. The eu is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights; it is deemed to contribute to peace, security, mutual respect among peoples and the protection of human rights, as well 1 Council of the eu, European Security Strategy – A secure Europe in a better world, (Belgium: European Communities, 2009). 2 eu, ‘European Security Strategy’, eu, 11 December 2008, available at: www.eeas.europa.eu/ csdp/about-csdp/european-security-strategy/ (last accessed 03 August 2015).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_013

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as to the strict observance and the development of international law (Arts. 2 and 3 Treaty on the European Union).3 The icc, for the purpose of preventing and curbing the commission of the serious crimes falling within its jurisdiction, is an essential means of promoting respect for international humanitarian law and human rights, thus contributing to freedom, security, justice and the rule of law, as well as contributing to the preservation of peace, the prevention of conflicts and the strengthening of international security, in accordance with the purposes and principles of the un Charter. The eu is a staunch supporter of the icc.4 All eu Member States have ratified the icc Statute and the Agreement on Privileges and Immunities of the International Criminal Court (apic).5 The serious crimes under the jurisdiction of the icc are of great concern for the eu, which is committed to cooperation to prevent such crimes and to put an end to impunity for the perpetrators. On this basis, the icc and its icc Statute represent key prerequisites for achieving the eu’s priorities and are the expression of a rule-based international order. As pledged at the Kampala Review Conference (31 May–11 June 2010),6 the eu updated its Common Position 2003/444/CFSP by Council Decision 2011/168/ CFSP, adopted on 21 March 2011.7 This Decision repealed and replaced Common

3 Arts. 2 and 3 eu, Treaty on the eu, 26 October 2012, oj C 326/13 of 26.10.2012. 4 eu, ‘eu efforts to combat impunity’, eu, June 2010, available at: www.eeas.europa.eu/human _rights/icc/index_en.htm (last accessed 31 July 2015). 5 icc, ‘The States Parties to the Rome Statute’, icc, available at: www.icc-cpi.int/en_menus/ asp/states%20parties/ (last accessed 3 August 2015). 6 At Kampala, the eu pledged: 1. To continue to promote the universality and preserve the integrity of the Rome Statute. 2. To include the fight against impunity for the most serious crimes of international concern as one of the shared values of the eu and its partners through the insertion of icc and international justice related provisions into its agreements with third parties. 3. To continue its financial support to the Court, civil society and to the third States interested in receiving assistance in order to become party to the Rome Statute or to implement it. 4. To review and update its instruments in support of the Court following the Review Conference. See eu, ‘The European Union’s reply to the information request in paragraph 6, subparagraph h) of the Plan of Action for achieving universality and full implementation of the Rome Statute’, icc, 7 July 2014, available at: www.icc-cpi.int/en_menus/asp/sessions/ plan%20of%20action/Pages/2013%20_%20plan%20of%20action_asp12.aspx (last accessed 31 July 2015). 7 eu, Council Decision 2011/168/CFSP of 21 March 2011 on the International Criminal Court and repealing Common Position 2003/444/CFSP, oj L 76/56.

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Position 2003/444/CFSP.8 The objective of the Council Decision is to advance universal support for the icc Statute by promoting the widest possible participation in it, to preserve the integrity of the icc Statute, to support the independence of the Court and its effective and efficient functioning, to support cooperation with the Court and to support the implementation of the principle of complementarity. In accordance with the Council Decision, a revised Action Plan was adopted on 12 July 2011 and endorsed by the Political and Security Committee.9 It consists of five sections: (A) Co-ordination of the Union’s activities to implement the objectives of the Decision; (B) Universality and integrity of the Rome Statute; (C) Independence of the icc and its effective and efficient functioning; (D) Co-operation with icc; and (E) Implementation of the principle of complementarity.10 3

Cooperation with the International Criminal Court

Full cooperation with the icc is a prerequisite for the Court’s effective functioning. The Court does not have its own police or law enforcement structures at its disposal. Thus, in situations where the icc has jurisdiction, States must provide the necessary law enforcement and other structures for investigations to take place and to execute icc decisions. This applies to various types of cooperation with the Court, including the execution of arrest warrants. For instance, the Court may, at different stages in an investigation, approach States with specific requests for various kinds of information and other assistance. Also, arrest and surrender of suspects is an issue of fundamental importance for the icc’s operations. Indeed, the asp has underlined ‘the negative impact that non-execution of Court requests can have on the ability of the Court to execute its mandate, in particular when it concerns the arrest and surrender of individuals subject to arrest warrants’.11 Another example is that persons subject to arrest warrants and summonses 8

eu, COUNCIL COMMON POSITION 2003/444/CFSP of 16 June 2003 on the International Criminal Court, oj L 150/67. 9 eu, ‘eu efforts to combat impunity’, (12 July 2011) supra n 4. 10 Ibid. 11 asp, Cooperation, 21 November 2012, ICC-ASP/11/Res.5 at para 2.

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to appear before the icc may have their assets and property frozen or seized. The Registry can also request the cooperation of States when investigating the financial resources of the person benefiting from legal aid. As the number, complexity and the political profile of cases before the Court have increased, so has – at a significant rate – the number of witnesses in need of protection. The Court is actively seeking to enter into framework relocation agreements to facilitate requests for relocation. The eu is committed to full cooperation on the prevention of serious crimes falling under the jurisdiction of the icc and to the ending of impunity for the perpetrators.12 A Cooperation Agreements The eu and its Member States have decided to address the issue of cooperation with the Court in specific legal instruments. In 2006, the eu became the first regional organisation to enter into an agreement on cooperation and assistance with the Court.13 The agreement places a general obligation of cooperation and assistance between the eu and the icc and foresees, inter alia, the regular exchange of information and documentation of mutual interest. The agreement does not apply to icc requests for information from individual Member States, which are governed by bilateral arrangements, nor does it affect the competence of the eu to achieve the objectives of the agreement through separate measures. Following this agreement, security arrangements for the protection of classified information between the eu and the icc were agreed to and entered into force on 31 March 2008. On this basis, eu Common Security and Defence Policy (csdp) operations have provided support, upon request by the Court, to the Court, for instance, on logistical and security issues. In addition, a number of eu Member States have bilateral voluntary ­agreements with the Court. By way of example, Austria was the first State Party to sign an agreement on the enforcement of sentences with the icc on  27 October 2005.14 The United Kingdom, (8 December 2007),15 Belgium 12 13 14

15

eu, ‘eu efforts to combat impunity’, (2010) supra n 4. eu, Agreement of 28 April 2006 between the International Criminal Court and the European Union on cooperation and assistance, oj L 115/50. icc, ‘Agreement between the International Criminal Court and Austria on the enforcement of sentences of the International Criminal Court ICC-PRES/01-01-05’, icc, 26 November 2005, available at: www.legal-tools.org/doc/0f5f9e/ (last accessed 31 July 2015). icc, ‘Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Criminal Court on the enforcement of sentences imposed by the International Criminal Court ICC-PRES/04-01-07’, icc, 8 December 2007, available at: www.legal-tools.org/doc/d70d91/ (last accessed 31 July 2015).

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(1 June 2010),16 Finland (24 April 2011)17 and Denmark (5 July 2012)18 entered into similar agreements. Belgium became the first country to accept provisional receipt of detainees of the Court on its territory and under conditions established by the competent Chamber on 9 August 2014, when the icc Registry finalised an exchange of letters with Belgium on the provisional release of persons.19 B Encouraging Cooperation by Third States All States that have ratified the icc Statute are under a legal obligation to ‘cooperate fully with the Court in its investigation and prosecution of crimes’.20 State cooperation takes place within specific political, legal and administrative contexts. In this regard, diplomatic and public support can create an environment conducive to better and more efficient interaction between State Parties and the Court. According to the ‘eu Action Plan to follow-up on the Decision on the International Criminal Court of 12 July 2011(12080/11)’, the ‘eu and its Member States will undertake consistent action to encourage full cooperation of States with the icc, including the prompt execution of arrest warrants’. The eu consistently encourages State Parties to the icc Statute to honour their legal obligations to cooperate with the Court. For instance, the statement on behalf of the eu and its Member States during the Eleventh Session of the asp21 identified ‘the necessity to ensure co-operation with the Court and in particular how to react to instances of non-co-operation of States that are 16

17

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19 20 21

icc, ‘Agreement between the International Criminal Court and the Government of the Kingdom of Belgium on the Enforcement of Sentences of the International Criminal Court ICC-PRES/06-01-10’, icc,1 June 2010, available at: www.legal-tools.org/doc/24f3d9/ (last accessed 31 July 2015). icc, ‘Agreement between the International Criminal Court and the Government of the Republic of Finland on the Enforcement of Sentences of the International Criminal Court ICC‐PRES/07‐01‐11’, icc, 24 April 2011, available at: www.legal-tools.org/doc/a1972d/ (last accessed 31 July 2015). icc, ‘Agreement between the Kingdom of Denmark and the International Criminal Court on the Enforcement of Sentences of the International Criminal Court ICC‐PRES/12‐02‐12’, icc, 5 July 2012, available at: www.legal-tools.org/doc/cc1900/ (last accessed 31 July 2015). unga, Report of the International Criminal Court: Note by the Secretary-General, 18 September 2014, A/69/321. Art. 86 icc Statute. Mavroyiannis, ‘Statement on behalf of the European Union and its Member States delivered by H.E. Mr Andreas D. Mavroyiannis, Deputy Minister for European Affairs to the President of the Republic of Cyprus at the Eleventh Session of the Assembly of State Parties of the International Criminal Court’, icc, November 2012, available at

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in  violation of their obligations with regard to the icc’ as a ‘fundamental challenge’: Out of 23 individuals against whom the icc currently has open cases, 12 are currently absconding justice and some have done so for several years. This stifles the icc’s capacity to deliver justice and undermines the court’s credibility and deterrent effect. Non-co-operation with the Court in regard to the execution of arrest warrants constitutes a violation of international obligations. In particular visits of icc fugitives to States Parties of the Rome Statute, are unacceptable, as in addition to being a wilful failure to comply with obligations under the Rome Statute, they undermine the integrity of the Court. The eu and its Member States underline the importance of consistent action to encourage and improve full co-operation of States with the icc, including the prompt execution of arrest warrants. States need to explore further ways for better cooperation with icc for instance by generalising the practice of designating a national focal point for cooperation. And in his statement on behalf of the eu and its Member States during the Twelfth Session of the asp, Mr Andrius Krivas, Vice-Minister of Foreign Affairs of the Republic of Lithuania, stressed that the ‘Court’s success depends crucially on the States’ cooperation and political support. Without cooperation the icc cannot fulfill its mandate and the Rome Statute system risks collapse’.22 These calls for honouring the obligation to cooperate are neither confined to the asp nor to abstract discussions on the topic. Rather, the eu also gets concrete and – if need be – does not shy away from speaking out on specific situations. By way of example, on 19 November 2011, the spokesperson of eu High Representative Catherine Ashton reacted to the capture of Saif Al-Islam Gaddafi in Libya by stressing it was: [O]f utmost importance that Saif Al-Islam’s safety is now ensured and his due process rights guaranteed so that he can be delivered to justice, in accordance with Libya’s international obligations and the National

22

www.icc-cpi.int/en_menus/asp/sessions/general%20debate/Pages/general%20 debate%20_%20eleventh%20session.aspx (last accessed 31 July 2015). Krivas, ‘International Criminal Court Twelfth Session of the Assembly of States Parties General Debate Statement by Mr Andrius Krivas Vice-Minister of Foreign Affairs of the Republic of Lithuania on behalf of the European Union and its Member States’, icc, 20 November 2013, available at: www.icc-cpi.int/en_menus/asp/sessions/general%20debate/ Pages/general%20debate%20_%20twelfth%20session.aspx (last accessed 31 July 2015).

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Transitional Council’s public commitments to respect the rule of law. In that context, continuing cooperation with the International Criminal Court should be assured.23 On 19 June 2012, High Representative Catherine Ashton issued a statement on the arrest and detention of four staff members of the icc in Libya, calling for all efforts to be made to secure the immediate release of the detained individuals. She emphasised: [T]hat it is the legal obligation of Libya under the un Security Council’s resolution 1970 (2011) to co-operate fully with and provide any necessary assistance to the icc pursuant to that resolution and to recognize the privileges and immunities of icc staff.24 Likewise, on 19 April 2012, in the ‘Declaration on behalf of the European Union on the eu support for the Joint Operations Centre to combat Kony’s Lord’s Resistance Army’, the eu had already condemned ‘in the strongest possible terms the atrocities committed by the Lord’s Resistance Army’ and called ‘for the arrest of Joseph Kony and other lra leaders indicted by the International Criminal Court. The eu commits itself to remain engaged until this scourge has finally been removed’.25 On 21 January 2015, the spokesperson of High Representative Federica Mogherini reacted to the transfer of Dominic Ongwen to the icc by congratulating all those who made this transfer possible: The transfer of Dominic Ongwen, an alleged brigade commander of the Lord’s Resistance Army, to The Hague for trial is a significant achievement for international justice. Mr Ongwen has been transferred pursuant to an arrest warrant issued by the International Criminal Court on charges of crimes against humanity and war crimes […] The eu will 23

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Ashton, ‘Statement by the spokesperson of eu High Representative Catherine Ashton on the capture of Saif al-Islam A 463/11’, Delegation of the European Union to Egypt, 19 November 2011, available at: www.eeas.europa.eu/delegations/egypt/press_corner/all _news/news/2011/20111122_3_en.htm (last accessed 31 July 2015). Ashton, ‘Statement by eu hr Ashton on arrest and detention of four icc staff members in Libya’, eu Delegation to the un – New York, 19 June 2012, available at: www.eu-un.europa .eu/articles/en/article_12317_en.htm (last accessed 31 July 2015). eu, ‘Declaration by the High Representative on behalf of the European Union: eu supports Joint Operations Centre to combat Kony’s Lord’s Resistance Army’, European Commission, 19 April 2012, available at www.europa.eu/rapid/press-release_PESC-12 -162_en.htm (last accessed 31 July 2015).

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c­ ontinue to support all efforts to put an end to the terror caused by the Lord’s Resistance Army and to bring its leader, Joseph Kony, before the icc in due course.26 Similarly, with regard to the car, the Council concluded on 9 February 2015 that the eu was calling ‘on the transitional authorities and on all countries in the region to continue to cooperate with the International Criminal Court’.27 Yet another illustration: in her address during a side event to the 24th Session of the Human Rights Council, H.E. Mariangela Zappia, Head of the eu Delegation to the un in Geneva, made explicit reference to Kenya and noted ‘that the Court itself has made clear that any possible withdrawal by Kenya would not affect the country’s legal obligation to cooperate with the Court in connection with on-going proceedings’.28 C Reacting to Non-cooperation Without State cooperation, the icc cannot fulfil its mandate and the icc Statute system risks collapse. This is why non-cooperation with the icc – meaning the omission by a State to take action in fulfilment of a legal obligation vis-à-vis the Court – constitutes one of the most serious challenges to the effective functioning of the icc. Lack of cooperation affects the integrity of the proceedings and delays them, thereby reducing the Court’s efficiency and increasing its costs. However, non-cooperation not only undermines the Court but also constitutes a breach of a legal obligation and should be treated as such. This applies to all State Parties as well as when the unsc has referred a situation to the Court in accordance with Chapter 7 un Charter. In some instances, non-cooperation has turned into an established practice where arrest warrants are repeatedly or persistently ignored and the State in question explicitly refuses to abide by its obligations. The situation can escalate further, when this non-cooperation continues after a determination of non-cooperation by the Court and after the unsc or the asp have been informed of this breach. 26

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Mogherini, ‘Statement by the spokesperson on the transfer of Dominic Ongwen to the International Criminal Court’, eu, 21 January 2015, available at: www.eeas.europa.eu/ statements-eeas/2015/150121_02_en.htm (last accessed 31 July 2015). European Council, ‘Council conclusions on the Central African Republic’, European Council, 9 January 2015, available at: www.consilium.europa.eu/en/press/press-releases/ 2015/02/150209-conclusions-conseil-r%C3%A9publique-centrafricaine/ (last accessed 31 July 2015). Zappia, ‘eu organized discussion on “The International Criminal Court after 15 years”’, eu, 10 September 2013, available at: www.eeas.europa.eu/delegations/un_geneva/press _corner/focus/events/2013/20130904_icc_side_event_en.htm (last accessed 31 July 2015).

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On this basis, the eu and its Member States respond to non-cooperation. The eu’s response to non-cooperation with the icc by third States focuses particularly on how the eu and its Member States can respond to impending instances of non-cooperation, to persisting or repeated cases of non-cooperation and when to avoid non-essential contact with individuals subject to arrest warrants issued by the icc.29 (i) Impending Instances of Non-cooperation The eu and its Member States closely monitor potential instances of noncooperation and share information when there is reason to believe that a State may be about to breach its legal obligation to cooperate with the icc. This approach is adopted vis-à-vis both icc State Parties and non-State Parties obliged to cooperate by a unsc resolution. With particular regard to persons who are the subject of arrest warrants or summonses issued by the icc, the eu has developed a systematic pattern of reaction to acts of non-cooperation in cases of travels of persons wanted by the icc. If a situation of impending non-cooperation is identified, the eu and its Member States consider how to respond through preventive measures to ensure full cooperation with the Court. Such measures can include eu and eu Member States’ démarches, private consultations or public statements calling for cooperation with the icc. A reaction in point was, for example, the Statement of 14 June 2015 by the Spokesperson of High Representative Federica Mogherini on South Africa and the International Criminal Court: Committed to preventing crimes against humanity, war crimes and genocide, and to avoiding impunity for the perpetrators of such crimes, the eu confirms its continuing support for the icc and its work. Full cooperation with the icc is a prerequisite for the Court’s effective functioning. In accordance with established approach of the eu and its Member States, the eu expects South Africa, a founding State Party of the Court, to act in accordance with un Security Council 1593, in executing the arrest warrant against any icc indictee present in the country.30 If the eu or its Member States have reason to believe that a State that is under no legal obligation to cooperate with the icc, but that has been urged to ­cooperate through a unsc resolution, may not be cooperating, they also share 29 30

eu, ‘eu efforts to combat impunity’ (2013), supra n 4. Mogherini, ‘Statement by Spokesperson on South Africa and the International Criminal Court’, eu, 14 June 2015, available at: www.eeas.europa.eu/statements-eeas/2015/150614 _02_en.htm (last accessed 31 July 2015).

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such information. In such a situation, the eu and its Member States can also encourage the relevant State to respond to the unsc’s request. Factors relevant when considering a response to the country in question include whether the country supported the relevant un Security Council referral to the icc, whether the country is an eu candidate or potential candidate country, whether the country has particularly strong political or economic ties with the eu or whether a situation on its territory is under icc investigation. (ii) Instances of Non-cooperation If the attempt to prevent non-cooperation is unsuccessful and an incident of non-cooperation occurs, the eu and its Member States consider how to respond through reactive measures. Options include the issuing of public statements by Member States and the Spokesperson of the High Representative, formal démarches in the non-cooperating State, as well as the summoning of the Ambassador of the non-cooperating State. The eu and its Member States follow up on any non-cooperation by consulting with the relevant country, observing subsequent developments and, if necessary, by working with partners towards non-repetition of this act. By way of example, on the occasion of the visit of Sudanese President Al Bashir to the drc, the spokesperson of Catherine Ashton, High Representative of the Union for Foreign Affairs and Security Policy and Vice President of the Commission, issued a statement on 27 February 2014,31 expressing the High Representative’s concern, recalling that the drc, a State Party to the icc Statute, had itself already directly benefitted from icc proceedings. She firmly recalled the importance of all Member States of the un abiding by and implementing the resolutions adopted by the unsc under Chapter 7 un Charter, in this case, unsc Resolution 1593 (2005).32 She equally urged the drc to respect its obligations under international law to arrest and surrender those under an arrest warrant by the icc. The statement recalled that the eu is a staunch supporter of the icc to combat impunity for the most serious crimes of concern to the international community as a whole: ‘Genocide, crimes against humanity and war crimes must not go unpunished and their prosecution must be ensured at both domestic and international levels’.33 31

32 33

Ashton, ‘Statement by the Spokesperson of eu High Representative Catherine Ashton on the visit of Sudanese President Al-Bashir to the Democratic Republic of the Congo’, eu, 27 February 2014, available at: www.eeas.europa.eu/human_rights/icc/eu-statements -and-declarations/index_en.htm (last accessed 3 August 2015). unsc Res 1593, 31 March 2005, S/RES/1593 (2005). Ashton, ‘Statement by the Spokesperson of eu High Representative Catherine Ashton on the visit of Sudanese President Al-Bashir to the Democratic Republic of the Congo’(2014) supra n 31.

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On 27 August 2013, on the occasion of the visit of Sudanese Defence Minister Abdel Raheem Muhammad Hussein to the car, the spokesperson of the High Representative went equally on record: The European Union is concerned by the non-execution of the warrant for the arrest of Abdelrahim Mohamed Hussein, Sudanese Minister for National Defence, during his recent visit to the Central African Republic. This constitutes a violation of the Central African Republic’s obligations as a party to the Rome Statute. The European Union is a strong supporter of the International Criminal Court as an invaluable tool in the fight against impunity for the most serious crimes of concern to the international community.34 On 16 July 2013, following the visit of Sudanese President Al Bashir to Nigeria, the spokesperson of the High Representative expressed her concern: She recalls that President Omar Al-Bashir is under an arrest warrant by the icc for war crimes and crimes against humanity. The High Representative reiterates the importance for all Member States of the United Nations to abide by and implement the resolutions adopted by the Security Council under Chapter 7 of the un Charter, in this case unscr 1593(2005). She urges Nigeria to respect its obligations under international law to arrest and surrender those subject to an arrest ­warrant from the icc. The icc is a valuable instrument enabling victims of violence or human rights abuses and their representatives, including States, to combat impunity for the most serious crimes. Genocide, crimes against humanity and war crimes must not go unpunished and their prosecution must be ensured by measures at both domestic and ­international levels. The European Union therefore reiterates its full support to the role of the icc.35

34

35

Ashton, ‘Statement by High Representative Catherine Ashton on behalf of the European Union on the visit by the Sudanese Minister for Defence, Abdelrahim Mohamed Hussein, to the Central African Republic’, eu, 27 August 2013, available at: http://eeas.europa.eu/ crisis-response/where-we-work/central-african-republic/background-material/index _en.htm (last accessed 3 August 2015). Ashton, ‘eu hr Ashton concerned by visit of Sudanese President Al-Bashir to Nigeria’, eu, 16 July 2013, available at: www.eu-un.europa.eu/articles/en/article_13769_en.htm (last accessed 3 August 2015).

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Similar statements were made, by way of example, in the context of the ­visits of Sudanese President Omar Al Bashir to Chad (16 May 2013),36 Sudanese Minister of National Defence, Abdel Raheem Muhammad Hussein, to Chad (26 April 2013),37 Sudanese President Omar Al Bashir to Chad (21 February 2013),38 Statement by the Spokesperson of the High Representative on the icc decision concerning the arrest warrants for Sudanese Defence Minister Abdelrahim Mohamed Hussein (3 March 2012),39 President Al Bashir to Malawi (14 October 2011),40 President Al Bashir’s visit to Chad (8 August 2011),41 President Al Bashir to Djibouti (14 May 2011),42 President Al Bashir’s visit to Kenya (27 August 2010)43 and President Al Bashir to Chad (22 July 2010).44 36

37

38

39

40

41

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44

Ashton, ‘Statement by the Spokesperson of the eu High Representative Catherine Ashton on the Visit of Sudanese President Al-Bashir to Chad’, eu, 16 May 2013, available at: www .eeas.europa.eu/human_rights/icc/eu-statements-and-declarations/index_en.htm (last accessed 3 August 2015). Ashton, ‘eu hr Ashton concerned by visit of Sudanese Minister of National Defence Abdel Raheem Muhammad Hussein to Chad’, eu Delegation to the un – New York, 26 April 2013, available at: www.eu-un.europa.eu/articles/en/article_13452_en.htm (last accessed 3 August 2015). Ashton, ‘Statement by the spokesperson of eu hr Ashton on the visit of Sudanese President Al-Bashir to Chad’, eu Delegation to the un – New York, 21 February 2013, available at: www.eu-un.europa.eu/articles/en/article_13188_en.htm (last accessed 3 August 2015). Ashton, ‘eu hr Ashton takes note of icc decision concerning arrest warrants for Sudanese Defence Minister Hussein’, eu Delegation to the un – New York, 3 March 2012, available at: www.eu-un.europa.eu/articles/en/article_11929_en.htm (last accessed 3 August 2015). Ashton, ‘Statement by the spokesperson of eu hr Ashton on visit of President Al-Bashir to Malawi’, eu Delegation to the un – New York, 14 October 2011, available at: www.eu-un .europa.eu/articles/en/article_11484_en.htm (last accessed 3 August 2015). Ashton, ‘Statement by the spokesperson of eu hr Ashton on President Al-Bashir’s visit to Chad’, eu Delegation to the un – New York, 8 August 2011, available at: www.eu-un.europa .eu/articles/en/article_11277_en.htm (last accessed 3 August 2015). Ashton, ‘icc: Statement by the spokesperson of eu hr Ashton on President Al-Bashir’s visit to Djibouti’, eu Delegation to the un – New York, 14 May 2011, available at: www.eu-un .europa.eu/articles/en/article_11045_en.htm (last accessed 3 August 2015). Ashton, ‘Statement by the spokesperson of hr Ashton on Sudanese President Al-Bashir’s visit to Kenya’, eu Delegation to the un – New York, 27 August 2010, available at: www .eu-un.europa.eu/articles/en/article_10047_en.htm (last accessed 3 August 2015). Ashton, ‘Statement by the spokesperson of hr Ashton on President Al-Bashir’, eu Delegation to the un – New York, 22 July 2010, available at: www.eu-un.europa.eu/articles/ en/article_9970_en.htm (last accessed 3 August 2015).

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(iii) Repeated and Persistent Non-cooperation Repeated and persistent non-cooperation with the icc requires strong and consistent action by the eu and its Member States. Such action can include the inclusion of strong language in Council conclusions calling for adherence to relevant obligations under international law and cooperation with the icc. By way of example, in the Council conclusions on Sudan and South Sudan of 23 January 2012, the eu stressed ‘the importance of accountability for serious violations of human rights and international humanitarian law in Darfur’ and recalled ‘the obligation of the Government of Sudan and all un member states and regional organisations to cooperate fully with the International Criminal Court pursuant to unsc Resolution 1593’.45 Likewise, in its conclusions on Sudan of 20 June 2011, the Council recalled ‘the obligation of the Government of Sudan to cooperate with the International Criminal Court pursuant to unsc Resolution 1593’.46 The effectiveness of eu reaction to repeated and persistent non-cooperation is also enhanced by making non-cooperation with the icc an agenda item for relevant bilateral contacts by the eu and its Member States with the country in question. The eu and its Member States also use multilateral settings (such as the un, the unsc, the asp, etc.) to oppose non-cooperation as breach of a legal obligation and to call for cooperation with the icc. For instance, in its statement on behalf of the eu and its Member States during the General Debate of the 10th asp on 15 December 2011, Poland recalled ‘that Resolution 1593 of the United Nations Security Council imposes obligation to cooperate with the Court on a non-State Party, i.e. Sudan’ and explicitly regretted ‘the infringements by Sudan of its international obligations’.47 Similarly, the Statement by Lithuania at the unsc briefing on icc-Sudan on 12 December 2012, made explicit reference to: 45

46

47

eu Council, ‘eu Council conclusions on Sudan and South Sudan’, eu Delegation to the un – New York, 23 January 2012, available at: www.eu-un.europa.eu/articles/en/article_11786 _en.htm (last accessed 3 August 2015). eu Council, ‘eu Council conclusions on Sudan’, eu Delegation to the un – New York, 20 June 2011, available at: www.eu-un.europa.eu/articles/en/article_11151_en.htm (last accessed 03 August 2015). eu, ‘icc – GENERAL DEBATE – Tenth session’, icc, 15 December 2011, available at: www .icc-cpi.int/en_menus/asp/sessions/documentation/10th%20session/Pages/general%20 debate%20_%20tenth%20session.aspx (last accessed 3 August 2015).

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[L]ack of cooperation not only from the Government of Sudan but the other States in the region as well. We call on all States, even if they are not parties to the Rome Statute to cooperate with the icc as required by the Security Council Resolution and meet their obligations to arrest and surrender suspects to the Court.48 Likewise, in the Statement of 31 October 2013 on behalf of the eu and its Member States at the 68th un General Assembly on Agenda item on the report of the icc, recalls: [T]he necessity to ensure cooperation with the icc and, in particular, how to react to instances of non-cooperation of States that are in violation of their obligations with regard to the icc. Cooperation with the Court and enforcement of its decisions are indeed equally essential for the Court to be able to carry out its mandate. This applies to all States Parties to the Rome Statute as well as when the un Security Council has referred a situation to the Court in accordance with Chapter 7 of the un Charter. We note with concern that arrest warrants issued by the Court – some since 2005 – remain outstanding. A total of 13 p ­ ersons are currently under arrest warrants. We recall that non-­cooperation with the Court in respect of the execution of arrest warrants constitutes a violation of international obligations and stifles icc’s capacity to deliver justice. We therefore call upon all States to take consistent actions to encourage appropriate and full cooperation with the Court, including the prompt execution of arrest warrants. We also reiterate the crucial importance for all States to refrain from helping to shelter or hide the perpetrators of the most serious crimes and to take the necessary steps to bring those perpetrators to justice in order to end impunity.49 The eu and its Member States also support any non-cooperation related proceedings in the asp and its Bureau.

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49

Lithuania, ‘Statement by Lithuania at the un Security Council briefing on icc-Sudan’, Permanent Mission of Lithuania to the un in New York, 12 December 2014, available at: mission-un-ny.mfa.lt/missionny/en/news/statement-by-lithuania-at-the-un-security -council-briefing-on-icc-sudan- (last accessed 3 August 2015). Marhic, ‘eu statements and declarations’, eu, 31 October 2013, available at: www.eeas .europa.eu/human_rights/icc/eu-statements-and-declarations/index_en.htm (last accessed 3 August 2015).

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(iv) Avoiding Non-essential Contact According to the ‘eu Action Plan to follow-up on the Decision on the International Criminal Court of 12 July 2011(12080/11)’,50 the ‘eu and its Member States should avoid non-essential contacts with individuals subject to an arrest warrant issued by the icc. They will monitor and address developments that may hamper the icc’s work’.51 The aim of the eu and its Member States in conducting this policy of avoiding non-essential contact with individuals subject to an arrest warrant by the icc is to preserve the integrity of the icc Statute and to support the effective functioning of the Court. There is no universally accepted definition of what constitutes an ‘essential contact’, but relevant criteria may include, inter alia, whether the contact comes with ceremonial, courtesy or similar occasions. It may also be taken into account whether the contact is strictly required or imperative for carrying out diplomatic, consular or other activities that are absolutely necessary and/or un-mandated or arising from a legal obligation. If the contact cannot be avoided, the respective eu Member State might consider steps such as informing the eu and other Member States and/or the Court about the contact. The eu and its Member States can also respond if any other States, in particular icc State Parties, or relevant international organisations engage in nonessential contact with icc suspects. 4

Promotion of Implementing Legislation

National implementing legislation is a key prerequisite for functioning cooperation between icc State Parties and the Court. The eu and its Member States support State Parties in their efforts to enact implementing legislation, through information sharing, assisting in drafting legislation and by providing financial support. This is part of the ongoing objective to make the icc truly universal and to enhance its impact in victims’ lives and on the populations that have suffered from crimes under international law. In this respect, the eu and its Member States encourage State Parties to the icc Statute to honour their duty to fully cooperate with the Court and to enact and implement legislation aimed at empowering their national judicial systems to investigate and bring to justice perpetrators of international crimes and redress to their victims.

50 eu, ‘eu efforts to combat impunity’, (12 July 2011) supra n 4 at 14. 51 Ibid.

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With the aim of strengthening the icc cooperation regime in mind, it is stressed that an initial requirement is for State Parties to implement the icc Statute in their domestic legislation and thereby provide procedures for ‘all of the forms of cooperation’ specified in Part ix icc Statute.52 However, implementing legislation is not only a question of mere enactment but also a question of the quality and application of such legislation. In this context, the eu and its Member States also promote the ratification and implementation of apic, providing officials and staff of the icc with privileges and immunities necessary for them to perform their duties in an independent and unconditional manner. Although the icc Statute lays down that the icc shall enjoy in the territory of each State Party to the icc Statute privileges and immunities necessary for the fulfilment of its purposes, only through ratification and implementation of apic can States guarantee that their officials are aware of the actual scope and realities of these privileges and immunities and how to apply them in concrete situations. The eu and its Member States promote the enactment of implementing legislation, by way of example, during its regular human rights dialogues with some 40 countries, through systematic démarche campaigns worldwide, through the organisation of dedicated local or regional seminars, through the systematic inclusion of an ‘icc clause’53 into agreements with third countries or through financial support to civil society organisations lobbying for the universality of the icc Statute. The eu also offers expedient expert assistance. .

5

Implementation of the Principle of Complementarity

The icc is not a substitute for national courts. According to the icc Statute, it  is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. In fact, the icc relies entirely on national 52 53

Art. 88 icc Statute. See e.g. Article 11 (7) ‘Peace-building policies, conflict prevention and resolution, response to situations of fragility’ eu, Partnership Agreement between the members of the African, Caribbean and Pacific Group of States and the European Community and its Member States (Cotonou Agreement), 15 December 2000, oj L 317, 15.12.2000, pp. 3–353; amended by oj L 209, 11.8.2005, pp. 27–64 and oj L 287, 4.11.2010, pp. 3–49: which stipulates: ‘In promoting the strengthening of peace and international justice, the Parties reaffirm their determination to: – share experience in the adoption of legal adjustments required to allow for the ratification and implementation of the Rome Statute of the International Criminal Court; and – fight against international crime in accordance with international law, giving due regard to the Rome Statute. The Parties shall seek to take steps towards ratifying and implementing the Rome Statute and related instruments’.

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law enforcement systems to give effect to its orders, including with requests for arrest and surrender of persons charged with genocide, crimes against humanity or war crimes. And rightly so, as the icc does not replace national criminal justice systems, but rather it complements them. However, this also means that State Parties to the icc Statute need to take the appropriate measures at national level to provide the basis for effective cooperation with the icc. The eu and its Member States are particularly engaged in promoting and contributing to strengthening the capacity of national judicial systems to investigate and prosecute icc Statute crimes and – if need be – to efficiently cooperate with the icc. However, all too often, there is still a gap between international justice and national justice systems in this regard. The successful implementation of the complementarity principle requires both political will and capacity. States need to be willing and able, but also willing to be able to fight impunity of most serious crimes. The eu and its Member States continue to pursue the aim of creating a holistic and integrated approach to complementarity through increased capacity development initiatives at the national level, not least by promoting the fight against impunity in development cooperation and technical assistance programmes. The European Commission and the European External Action Service have developed a Joint Working Document on Advancing the Principle of Complementarity.54 This ‘Complementarity Toolkit’ aims at providing operational guidance to bridging the gap between international justice and national justice systems, as an effective and efficient interplay between national justice systems and the icc is pivotal to giving full effect to the icc Statute. 6 Conclusion The eu and its Member States undertake consistent action to encourage and improve full cooperation of States with the icc, including the prompt execution of arrest warrants. Strengthening the icc cooperation regime will remain an important priority for the eu in the years to come.

List of References



Legal Cases and United Nations Documents

EU, Council Decision 2011/168/CFSP of 21 March 2011 on the International Criminal Court and repealing Common Position 2003/444/CFSP, OJ L 76/56 (2011). 54

eu, ‘eu efforts to combat impunity’, (12 July 2011) supra n 4.

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UNSC Res 1593, 31 March 2005, S/RES/1593 (2005). UNGA, Report of the International Criminal Court: Note by the Secretary-General, 18 September 2014, A/69/321 (2014).



Other Documents



Online Materials

ASP, Cooperation, 21 November 2012, ICC-ASP/11/Res.5. EU, Partnership Agreement between the members of the African, Caribbean and Pacific Group of States and the European Community and its Member States (Cotonou Agreement), 15 December 2000, OJ L 317, 15.12.2000, pp. 3–353; amended by OJ L 209, 11.8.2005, pp. 27–64 and OJ L 287, 4.11.2010. EU, COUNCIL COMMON POSITION 2003/444/CFSP of 16 June 2003 on the International Criminal Court, 16 June 2003, OJ L 150/67. EU, Agreement of 28 April 2006 between the International Criminal Court and the European Union on cooperation and assistance, 28 April 2006, OJ L 115/50. EU, Treaty on the EU, 26 October 2012, OJ C 326/13 of 26.10.2012.

Ashton, ‘Statement by the spokesperson of HR Ashton on President Al-Bashir’, EU Delegation to the UN – New York, 22 July 2010, available at: www.eu-un.europa.eu/ articles/en/article_9970_en.htm (last accessed 3 August 2015). Ashton, ‘Statement by the spokesperson of HR Ashton on Sudanese President Al-Bashir’s visit to Kenya’, EU Delegation to the UN – New York, 27 August 2010, available at: www.eu-un.europa.eu/articles/en/article_10047_en.htm (last accessed 3 August 2015). Ashton, ‘ICC: Statement by the spokesperson of EU HR Ashton on President Al-Bashir’s visit to Djibouti’, EU Delegation to the UN – New York, 14 May 2011, available at: www .eu-un.europa.eu/articles/en/article_11045_en.htm (last accessed 3 August 2015). Ashton, ‘Statement by the spokesperson of EU HR Ashton on President Al-Bashir’s visit to Chad’, EU Delegation to the UN – New York, 8 August 2011, available at: www.eu-un .europa.eu/articles/en/article_11277_en.htm (last accessed 3 August 2015). Ashton, ‘Statement by the spokesperson of EU HR Ashton on visit of President Al-Bashir to Malawi’, EU Delegation to the UN – New York, 14 October 2011, available at: www .eu-un.europa.eu/articles/en/article_11484_en.htm (last accessed 3 August 2015). Ashton, ‘Statement by the spokesperson of EU High Representative Catherine Ashton on the capture of Saif al-Islam A 463/11’, Delegation of the European Union to Egypt, 19 November 2011, available at: www.eeas.europa.eu/delegations/egypt/press_corner/ all_news/news/2011/20111122_3_en.htm (last accessed 31 July 2015). Ashton, ‘EU HR Ashton takes note of ICC decision concerning arrest warrants for Sudanese Defence Minister Hussein’, EU Delegation to the UN – New York, 3 March 2012, available at: www.eu-un.europa.eu/articles/en/article_11929_en.htm (last accessed 3 August 2015).

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Ashton, ‘Statement by EU HR Ashton on arrest and detention of four ICC staff members in Libya’, EU Delegation to the UN – New York, 19 June 2012, available at: www .eu-un.europa.eu/articles/en/article_12317_en.htm (last accessed 31 July 2015). Ashton, ‘Statement by the spokesperson of EU HR Ashton on the visit of Sudanese President Al-Bashir to Chad’, EU Delegation to the UN – New York, 21 February 2013, available at: www.eu-un.europa.eu/articles/en/article_13188_en.htm (last accessed 3 August 2015). Ashton, ‘EU HR Ashton concerned by visit of Sudanese Minister of National Defence Abdel Raheem Muhammad Hussein to Chad’, EU Delegation to the UN – New York, 26 April 2013, available at: www.eu-un.europa.eu/articles/en/article_13452_en.htm (last accessed 3 August 2015). Ashton, ‘Statement by the Spokesperson of the EU High Representative Catherine Ashton on the Visit of Sudanese President Al-Bashir to Chad’, EU, 16 May 2013, available at: www.eeas.europa.eu/human_rights/icc/eu-statements-and-declarations/ index_en.htm (last accessed 3 August 2015). Ashton, ‘EU HR Ashton concerned by visit of Sudanese President Al-Bashir to Nigeria’, EU, 16 July 2013, available at: www.eu-un.europa.eu/articles/en/article_13769_en .htm (last accessed 3 August 2015). Ashton, ‘Statement by High Representative Catherine Ashton on behalf of the European Union on the visit by the Sudanese Minister for Defence, Abdelrahim Mohamed Hussein, to the Central African Republic’, EU, 27 August 2013, available at: http://eeas.europa.eu/crisis-response/where-we-work/central-african-republic/ background-material/index_en.htm (last accessed 3 August 2015). Ashton, ‘Statement by the Spokesperson of EU High Representative Catherine Ashton on the visit of Sudanese President Al-Bashir to the Democratic Republic of the Congo’, EU, 27 February 2014, available at: www.eeas.europa.eu/human _rights/icc/eu-statements-and-declarations/index_en.htm (last accessed 3 August 2015). EU, ‘European Security Strategy’, EU, 11 December 2008, available at: www.eeas.europa .eu/csdp/about-csdp/european-security-strategy/ (last accessed 03 August 2015). EU, ‘EU efforts to combat impunity’, EU, June 2010, available at: www.eeas.europa.eu/ human_rights/icc/index_en.htm (last accessed 31 July 2015). EU Council, ‘EU Council conclusions on Sudan’, EU Delegation to the UN – New York, 20 June 2011, available at: www.eu-un.europa.eu/articles/en/article_11151_en.htm (last accessed 03 August 2015). EU, ‘ICC – GENERAL DEBATE – Tenth session’, ICC, 15 December 2011, available at: www.icc-cpi.int/en_menus/asp/sessions/documentation/10th%20session/Pages/ general%20debate%20_%20tenth%20session.aspx (last accessed 3 August 2015). EU Council, ‘EU Council conclusions on Sudan and South Sudan’, EU Delegation to the UN – New York, 23 January 2012, available at: www.eu-un.europa.eu/articles/en/ article_11786_en.htm (last accessed 3 August 2015).

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EU, ‘Declaration by the High Representative on behalf of the European Union: EU supports Joint Operations Centre to combat Kony’s Lord’s Resistance Army’, European Commission, 19 April 2012, available at www.europa.eu/rapid/press-release_PESC -12-162_en.htm (last accessed 31 July 2015). EU, ‘The European Union’s reply to the information request in paragraph 6, subparagraph h) of the Plan of Action for achieving universality and full implementation of the Rome Statute’, ICC, 7 July 2014, available at: www.icc-cpi.int/en_menus/asp/ sessions/plan%20of%20action/Pages/2013%20_%20plan%20of%20action_asp12. aspx (last accessed 31 July 2015). European Council, ‘Council conclusions on the Central African Republic’, European Council, 9 January 2015, available at: www.consilium.europa.eu/en/press/press -releases/2015/02/150209-conclusions-conseil-r%C3%A9publique-centrafricaine/ (last accessed 31 July 2015). ICC, ‘Agreement between the International Criminal Court and Austria on the enforcement of sentences of the International Criminal Court ICC-PRES/01-01-05’, ICC, 26 November 2005, available at: www.legal-tools.org/doc/0f5f9e/ (last accessed 31 July 2015). ICC, ‘Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Criminal Court on the enforcement of sentences imposed by the International Criminal Court ICC-PRES/04-01-07’, ICC, 8 December 2007, available at: www.legal-tools.org/doc/d70d91/ (last accessed 31 July 2015). ICC, ‘Agreement between the International Criminal Court and the Government of the Kingdom of Belgium on the Enforcement of Sentences of the International Criminal Court ICC-PRES/06-01-10’, ICC,1 June 2010, available at: www.legal-tools.org/ doc/24f3d9/ (last accessed 31 July 2015). ICC, ‘Agreement between the International Criminal Court and the Government of the Republic of Finland on the Enforcement of Sentences of the International Criminal Court ICC‐PRES/07‐01‐11’, ICC, 24 April 2011, available at: www.legal-tools.org/doc/ a1972d/ (last accessed 31 July 2015). ICC, ‘Agreement between the Kingdom of Denmark and the International Criminal Court on the Enforcement of Sentences of the International Criminal Court ICC‐ PRES/12‐02‐12’, ICC, 5 July 2012, available at: www.legal-tools.org/doc/cc1900/ (last accessed 31 July 2015). ICC, ‘The States Parties to the Rome Statute’, ICC, available at: www.icc-cpi.int/en _menus/asp/states%20parties/ (last accessed 3 August 2015). Krivas, ‘International Criminal Court Twelfth Session of the Assembly of States Parties General Debate Statement by Mr Andrius Krivas Vice-Minister of Foreign Affairs of the Republic of Lithuania on behalf of the European Union and its Member States’, ICC, 20 November 2013, available at: www.icc-cpi.int/en_menus/asp/sessions/­

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general%20debate/Pages/general%20debate%20_%20twelfth%20session.aspx (last accessed 31 July 2015). Lithuania, ‘Statement by Lithuania at the UN Security Council briefing on ICC-Sudan’, Permanent Mission of Lithuania to the UN in New York, 12 December 2014, available at: www.mission-un-ny.mfa.lt/missionny/en/news/statement-by-lithuania-at-the -un-security-council-briefing-on-icc-sudan- (last accessed 3 August 2015). Marhic, ‘EU statements and declarations’, EU, 31 October 2013, available at: www.eeas .europa.eu/human_rights/icc/eu-statements-and-declarations/index_en.htm (last accessed 3 August 2015). Mavroyiannis, ‘Statement on behalf of the European Union and its Member States delivered by H.E. Mr Andreas D. Mavroyiannis, Deputy Minister for European Affairs to the President of the Republic of Cyprus at the Eleventh Session of the Assembly of State Parties of the International Criminal Court’, ICC, November 2012, available at www.icc-cpi.int/en_menus/asp/sessions/general%20debate/Pages/ general%20debate%20_%20eleventh%20session.aspx (last accessed 31 July 2015). Mogherini, ‘Statement by the spokesperson on the transfer of Dominic Ongwen to the International Criminal Court’, EU, 21 January 2015, available at: www.eeas.europa .eu/statements-eeas/2015/150121_02_en.htm (last accessed 31 July 2015). Mogherini, ‘Statement by Spokesperson on South Africa and the International Criminal Court’, EU, 14 June 2015, available at: www.eeas.europa.eu/statements-eeas/ 2015/150614_02_en.htm (last accessed 31 July 2015). Zappia, ‘EU organized discussion on “The International Criminal Court after 15 years”’, EU, 10 September 2013, available at: www.eeas.europa.eu/delegations/un_geneva/ press_corner/focus/events/2013/20130904_icc_side_event_en.htm (last accessed 31 July 2015).

Strengthening International Criminal Court Cooperation – The Role of Civil Society Matthew Cannock 1 Introduction Cooperation with the icc is primarily an obligation for State Parties to the icc Statute. In this regard, it seems counterintuitive to address the role of civil society in the icc’s cooperation regime. Despite this, an examination of the work being undertaken by civil society in strengthening the icc’s cooperation regime is merited. Nowadays civil society actors and organisations working on icc-related issues encompass a huge range of interests, expertise, organisations and groupings undertaking a broad range of activities and functions in order to strengthen cooperation with the icc. From galvanising political will, to mobilising different actors, to capacity and institution building, civil society has found itself very well-suited to strengthen cooperation with the icc. Although clearly not able to remedy all of the inherent weaknesses in the icc’s cooperation regime, the actions and influence of civil society have played a crucial role in strengthening the icc’s decentralised and less-than-coercive cooperation regime. This chapter will examine a number of functions being undertaken by civil society in strengthening the icc Statute cooperation regime. The first sections detail the inherent weaknesses in the regime and why and how civil society has found itself well-placed to strengthen cooperation with the icc. The crucial role of civil society, in particular in affecting political will to cooperate with the icc, will be discussed. Following this, the different activities and actions of many different civil society actors, undertaking actions on three different ‘levels’ – namely at the international (asp level), regional and national levels – will be examined. It is apparent that the strengthening of the icc’s decentralised cooperation regime is a task very well-suited to an incredibly diverse and similarly ‘decentralised’ civil society. 2

Cooperation with the International Criminal Court – A weaker State Party Obligation

The icc Statute provides that it is only ‘States Parties’ who are generally ­obligated to ‘cooperate fully’ with the Court.1 Whilst Part ix icc Statute also 1 Art. 87 icc Statute. © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_014

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provides for the possibility of cooperation between the Court and non-State Parties2 or international organisations,3 it overwhelmingly references ‘States Parties’ as those to whom requests for cooperation are made and who must cooperate with the Court. Indeed, it is only through the cooperation of State Parties that the Court is able to fulfil its mandate practically and effectively. The oft-used adage that the Court does not have its own police force, security apparatus or enforcement capability remains a factual reality and the Court is therefore fully dependent on State Parties to ensure that its decisions are implemented and enforced. Despite the unequivocal obligation of State Parties to cooperate with the Court, there remains a feeling of weakness surrounding the cooperation regime provided for in the icc Statute. On the most basic level, this could be due to the inherent ‘weak language’ of the icc Statute.4 However, it is also a result of the comparison that must be made with the un Charter-based ad hoc Tribunals with their inherently more ‘vertical’ cooperation obligations stemming from their establishment through Chapter 7 un Charter.5 In contrast, the icc was established with only a limited relationship to the un, as a multilateral treatybased institution, which has a distinctly more ‘horizontal’ feel to its cooperation obligations.6 Furthermore, in contrast to the ad hoc Tribunals’ Statutes, which provide for notification to the unsc in the event of ‘non-cooperation’ with the Tribunals – and consequently the possibility of recourse to more coercive measures by the unsc following a breach of the un Charter – the icc Statute only provides for a referral to the asp (or the unsc upon a referral of a situation to the Prosecutor by the unsc) under Art. 87(7) icc Statute, following a judicial finding of non-cooperation. Added to the inherent weaknesses of the icc Statute cooperation regime is the obvious weakness of a decentralised cooperation regime lacking a centralised international enforcement body. The weakness of the icc’s cooperation regime is also evidenced by the Court’s overt reliance on ‘voluntary’7 cooperation agreements. These diverse 2 Art. 87(5)(a) icc Statute. 3 Art. 87(6) icc Statute. 4 See Bellelli, ‘Obligation to Cooperate and Duty to Implement’ in Bellelli (ed), International Criminal Justice: Law and Practice from the Rome Statute to Its Review (Farnham: Ashgate, 2010) 211 at 223 and Rastan, ‘Testing Cooperation: The International Criminal Court and National Authorities’ (2008) 21 Leiden Journal of International Law 431 at 433. 5 See Bellelli ibid; Rastan ibid at 432; Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 European Journal of International Law 144 at 165. 6 See Kreβ, Prost, Schlunck and Wilkitzki, ‘International Cooperation and Judicial Assistance: Preliminary Remarks’ in Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos, 1999) 1045 at 1047 and 1049. 7 See e.g. asp, Report of the Court on cooperation, 9 October 2013, ICC-ASP/12/35 at para 27.

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agreements cover many aspects of the Court’s functions and include interim release agreements, acquittal agreements, witness relocation agreements and enforcement of sentences agreements, amongst others. They are either entered into by State Parties on an ad hoc basis or through the signing of ‘framework agreements’ with the Court. Despite such framework agreements being ‘critical for the proper functioning of the Court’,8 as well as being crucial for the discharge of the Court’s fair trial obligations, they do not fall under the mandatory cooperation regime of the Court. However, due to the lack of obligation of State Parties to enter into such agreements and the obvious contrast to the mandatory cooperation obligations found within Part ix icc Statute, as well as perhaps due to the unfortunate misnomer and negative connotations of the term ‘voluntary’, framework agreements have only been entered into by very small number of State Parties.9 At first glance, it would appear self-contradictory to discuss the role of civil society or ngos in icc cooperation, which, as discussed, is clearly a Statebased international legal concept. Given that the icc’s inherently weak cooperation regime is almost solely the domain of States, what role can there be for civil society? It is clear that civil society and ngos are neither direct cooperation actors in the icc Statute system, nor are themselves enforcement bodies. It is also true that the Court’s cooperation weaknesses must be resolved primarily by State Parties. However, the emergence, participation and recognition of civil society and ngos in the traditionally ‘States-only’ field of international law are hard to refute. Civil society has increasingly been recognised as an actor alongside States and international organisations and this been no more clearly evidenced than at the icc, where civil society has played a role in areas such as international cooperation, which are usually reserved for States. 3

Civil Society Actors in a Decentralised Cooperation Regime

‘Civil society’ as the definition of a subject or subjects of international personality is a ‘fuzzy and contested concept’10 or ‘terra incognita’11 and a clear 8 Ibid. 9 At present only one State Party has entered into a framework interim release agreement and eight State Parties have concluded agreements on the enforcement of sentences with the Court. 10 Anheier, Glasius and Kaldor, ‘Introducing global civil society’ in Anheier, Glasius and Kaldor (eds), The Global Civil Society Yearbook (Oxford: oup, 2001) 3 at 11. 11 Martens, ‘Examining the (Non-) Status of ngos in International Law’ (2003) 10 Indiana Journal of Global Legal Studies 1 at 23.

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d­ efinition remains elusive. Civil society has been described in many different ways: as ‘advocacy and lobbying associations’,12 ‘watchdogs’13 or ‘norm elaborat[ors]’,14 to name but a few. The lack of an agreed definition of civil society is reflective of the multitude of ngos who participate in the international legal spectrum but may in fact point to the real strength of ‘civil society’ and ngos. It has been said that ‘[g]lobal civil society is a vast, interconnected and multi layered social space’,15 in which the ‘“non-status” of ngos […] may be considered an opportunity for maintaining a variety of voices of civil society in the international sphere’.16 Indeed, it is clear that one of the key strengths of civil society is due to the broad spectrum of its actors and constituents who are able to interact with other international legal actors (States, international organisations, other ngos) on many different issues (e.g. human rights law, environmental issues, etc.) on many different levels (international, regional, national). The multifaceted nature of civil society is exemplified by examining those who are active in relation to the icc. The interests and personnel of such civil society groups vary enormously, from international non-governmental organisations to national organisations and regional focused organisations. The make-up of civil society actors also differs widely, encompassing, for example, legal experts and practitioners, parliamentarians, human rights activists and academics. In turn, the interest of these groups is also multifaceted: ranging from ‘gender justice’ to victims’ rights and rights of the defence. Furthermore, civil society engagement with the icc is also particularly noteworthy for its  use  of ‘coalitions’ of ngos,17 which range from international coalitions 12

Tornquist-Chesnier, ‘ngos and International Law’ (2004) 3 Journal of Human Rights 253 at 254. 13 Pedraza-Farina, ‘Conceptions of Civil Society in International Lawmaking and Implementation: A Theoretical Framework’ (2013) 34 Michigan Journal of International Law 605 at 614 and Tornquist-Chesnier, ‘How the International Criminal Court Came to Life: The Role of Non-governmental Organisations’ (2007) 21 Global Society 449 at 457. 14 Tornquist-Chesnier, ‘ngos and International Law’ (2004) supra n 12 at 254. 15 Keane, ‘Global Civil Society?’ (Cambridge: Cambridge University Press, 2003) 9. 16 Martens, ‘Examining the (Non-) Status of ngos in International Law’ (2003) supra n 11 at 2. 17 See e.g. cicc, ‘About the Coalition’, cicc, available at: www.coalitionfortheicc .org/?mod=coalition (last accessed 24 July 2015): ‘The Coalition for the International Criminal Court (cicc) includes 2,500 civil society organizations in 150 different countries working in partnership to strengthen international cooperation with the icc; ensure that the Court is fair, effective and independent; make justice both visible and universal; and advance stronger national laws that deliver justice to victims of war crimes, crimes against humanity and genocide’.

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to national.18 Using coalitions of ngos has allowed States’ civil society to be better coordinated and centralised and, in many ways, contributes to the ‘mass effect’ of civil society actions and positions.19 Furthermore, the coalition approach has benefited many civil society actors within such coalitions, with the flow of information and mobilising effect to and from grassroots national actors and international organisations, with each informing, influencing and mobilising each others’ actions. As described above, the multi-dimensional and multi-interest focused nature of civil society engaged with the icc is representative of the great diffusion of civil society actors with their diverse interests and actions, practitioners and staff as well as the regional planes on which they operate. The large number of diverse civil society organisations – often acting ‘transnationally’ or ‘globally’,20 or on a wide spectrum of international, regional and national levels – has been found to be very well-suited to addressing the weaknesses in a similarly decentralised cooperation regime and has, moreover, enabled civil society to function in many ways to strengthen cooperation with the icc. The nature of the icc’s decentralised cooperation regime is demonstrated through its reliance on the use of many different agencies, authorities and even individuals to cooperate with the Court and execute its cooperation requests. Mostly this decentralised regime is State focused, with the icc requesting cooperation from national prosecuting authorities and government agencies. At the heart of this are prosecutors, judges, the law enforcement community, legislators and other actors. In being able to affect and directly work with these actors through lobbying, advocacy and capacity building, civil society organisations and actors, themselves diverse in make-up, expertise and field of operation, are very well-placed to impact upon the decentralised cooperation regime. On the regional level, regional institutions cooperate with the Court themselves, but it is also the case that States may cooperate with the Court in a more regional manner, as can be seen through the drafting of more regionally-harmonised or regionally-driven legislation.21 Therefore, 18 19 20 21

See e.g. Nigerian cicc, ‘About ncicc’, ncicc, 18 October 2010, available at: www.ncicc .org.ng/index.php/about-ncicc (last accessed 24 July 2015). Tornquist-Chesnier, ‘How the International Criminal Court Came to Life: The Role of Non-governmental Organisations’ (2007) supra n 13 at 453. Anheier, Glasius and Kaldor, The Global Civil Society Yearbook (2001) supra n 10 at 16. See e.g. Organisation of American States, ‘Report on Perspectives for a Model Law on State Cooperation with the International Criminal Court (presented by Dr Mauricio Herdocia Sacasa)’, Organisation of American States, 7 March 2008, available at: www .oas.org/en/sla/dil/international_criminal_court_legal_instruments.asp (last accessed 24 August 2015).

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being able to affect cooperation on a regional level through strengthening the very regional institutions or actors which either themselves cooperate with the icc – or which develop regional instruments, procedures or regional legislation through which to cooperate with the Court – is a very effective way of strengthening icc cooperation. Working with regional members of parliament, for example, Members of the European Parliament or the mercosur Parliament, is an effective way to strengthen regional cooperation with the Court. On the international level, the asp, although not a body which strictly centralises icc cooperation, is nonetheless the central forum through which State Parties to the icc Statute adopt asp level practices to strengthen icc cooperation. It is also a body which must be galvanised and politically motivated to improve cooperation with the Court. In working at the asp level, civil society has worked tirelessly to ensure not only that the political will to cooperate with the Court is created and that the importance of cooperation is highlighted with the aim of improving icc cooperation, but also that State Parties and their institutional cooperation mechanisms and procedures are strengthened. At the asp level, civil society actors work alongside diplomats, national legal advisors and many other international actors to strengthen the asp’s cooperation with the icc. Throughout, the breadth of civil society actors has worked to affect many different State, regional and international cooperation actors, and is able to address and to strengthen, at every level, the inherent weaknesses in the icc’s decentralised cooperation regime. At every ‘level’, there are different civil society organisations and actors well-placed to meet the needs of, and to address, different icc cooperation actors. As such, the decentralised weaknesses of the asp’s cooperation regime are never fully overcome, but the regime as a whole – across the transnational spectrum – is made stronger than it otherwise would be through the work of an often similarly ‘decentralised’ and transnational civil society. 4

Civil Society Actions Related to Strengthening International Criminal Court Cooperation and Political Willingness to Cooperate

Due to the inherently weak and decentralised icc cooperation regime and obligations and in light of the lack of strong coercive measures to ensure that State Parties are likely to cooperate, a gap is evident between State Parties’ cooperation obligations on the one hand and concrete actions in furtherance of their cooperation obligations on the other. If one adds to this the ‘voluntary’ nature of a number of cooperation obligations towards the Court, the issue of ‘political will’ of State Parties to cooperate with the Court becomes of crucial

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importance.22 For this reason, the need for ‘diplomatic […] [and] political support’ for the Court23 as well as the issue of ‘political will’ to cooperate has been a longstanding feature of State Parties’ and the Court’s discourse relating to cooperation at the icc. It should be noted, however, that despite the repeated importance of political will in ensuring State Parties cooperate with the Court, there remains a distinct lack of agreement on what the term itself actually means: the presence or lack of ‘political will’ has both been used to describe a reason behind State Parties’ proactive cooperation with the icc and as a ‘posthoc’24 explanation for a lack of cooperation. The presence and creation of an environment with the necessary ‘political will’ to cooperate plays a crucial role in closing the gap between State Parties’ fulfilment of their cooperation obligations and compliance with such obligations. Civil society has played a key role in the creation of such an environment in which the ‘political will’ as well as the need to cooperate with the Court is mainstreamed.25 Civil society has embedded the language of cooperation throughout its discourse at many different forums, for example in the media,26 in statements,27 un Resolutions, as well as through interactions with State Parties and their representatives and regional and international organisations. ngos and civil society have engaged in ‘agenda-setting’28 or the creation of a 22

That is not to say that ‘political will’ is the only factor of significance to states parties fulfilling or not their cooperation obligations. A number of ‘political, economic, security or capacity-related matters’ may undoubtedly influence states parties in their cooperation with the Court, See asp, Report of the Court on Cooperation (2013) supra n 7 at para 53. 23 See asp, Report of the Bureau on Cooperation, 19 October 2007, ICC-ASP/6/21 at paras 23 – 29. 24 Woocher, ‘Deconstructing “Political Will”: Explaining the Failure to Prevent Deadly Conflict and Mass Atrocities’ (2001) 12 Princeton Journal of Public and International Affairs 179 at 182. 25 For a definition of ‘mainstreaming’ see un ecosoc definition of concept, in context of gender mainstreaming in unga, Report of the Economic and Social Council, General Assembly Official Records Fifty-Second Session Supplement No. 3, 18 September 1997, A/52/3Rev.1, at 24. 26 See e.g. cicc Press Release, ‘asp 13: For a Stronger icc, Enhance State Cooperation’, cicc, 5 December 2014, available at: www.iccnow.org/?mod=ciccmedia&idudctp=20&show= all#20 (last accessed 24 August 2015). 27 See statements made by ngos at the Thirteenth Assembly Session, nearly all of which make reference to the importance of State Party cooperation with the icc: Various ngos, ‘ngo Letters, Papers, Reports and Statements’, cicc, 2014, available at: www.iccnow.org/? mod=asp13&idudctp=21&show=all#21 (last accessed 7 September 2015). 28 See Price, ‘Review Article: Transnational Civil Society And Advocacy In World Politics’ (2003) 55 World Politics 579 at 584.

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normative environment where cooperation with the icc and the requirement to do so is created. In creating an environment where cooperation with the icc becomes the expected and accepted norm and ‘an integral dimension of the design, implementation, monitoring and evaluation’29 of State Parties’ actions within the icc Statute system, the end goal of cooperation is put to the forefront of State Parties’ engagement with the icc. In discussions related to the importance of diplomatic and political support to the Court’s cooperation regime, State Parties are often urged to ‘express support for the Court’30 and to ‘mainstream’ cooperation with the Court31 through their bilateral, international and regional contacts. Civil society has found itself well-suited to also undertake similar actions in furthering the political will of State Parties to cooperate with the Court and in mainstreaming cooperation with the icc in their own interactions and contacts. Through the use of transnational advocacy networks32 and its functioning on many different levels – international, regional and national – and with many different types of actors, civil society has been able to generate political will both ‘top down’, namely at the highest governmental and intergovernmental levels,33 as well as ‘bottom-up’ through grass-roots activism campaigns, often on national levels, aimed at key national and domestically influential actors – such as governmental officials and policy makers.34 The mobilisation of civil society on national, regional and international levels, through organisations and groups which have a similarly international and national focus, has been a particular feature of civil society activism related to the icc and cooperation. The ability of civil society actors and organisations to influence and lobby different key actors in relation to cooperation with the icc (for example legislators, politicians, diplomats, the legal community, to name a few) on different levels (international, regional and national), has ensured that civil society is very well-placed to address a wide spectrum of key constituents in the decentralised icc cooperation regime. 29

Adapted from un Definition of the Concept of Gender Mainstreaming, unga, Report of the Economic and Social Council (1997) supra n 25 at 24. 30 See Rastan, ‘Testing Cooperation: The International Criminal Court and National Authorities’ (2008) supra n 4 at 439. 31 See asp, Report of the Court on Cooperation (2013) supra n 7 at para 51 onwards. 32 See e.g. Woocher, ‘Deconstructing “Political Will”: Explaining the Failure to Prevent Deadly Conflict and Mass Atrocities’ (2001) supra n 24 at 580. 33 Evans, ‘Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All’ (2009) 20 Irish Studies in International Affairs 7 at 13. 34 Ibid.

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It has been argued that what the icc ‘may lack in coercive powers it can make up for, in part, by the pull of its legitimacy and moral authority’.35 The normative role of civil society,36 in affecting ‘political will’, seen through its many different actions and activities undoubtedly serves to reinforce and strengthen the non-coercive nature of the icc cooperation regime. Through the influencing of political will by monitoring, criticism and mobilisation of public opinion, both domestically and globally, civil society organisations have challenged the norm of a ‘weaker’ cooperation regime and sought to strengthen it with an alternative, stronger framework and regime. Although many factors influence political will, ‘good information, good organization, and good arguments’37 are clearly the key requirements to galvanise political will around cooperation with the icc. All three of these factors have been influenced by a number of key developments in civil society activism. For example, the growth in expert38 and professional civil society actors, including lawyers and academics with expertise in the legal peculiarities of the icc’s cooperation regime, has enabled civil society actors to be equipped with legally sound information and arguments regarding the icc’s cooperation regime which can then be used as persuasive arguments in advocacy, lobbying, training and other efforts. Furthermore, the growth of an ‘epistemic community’39 of civil society actors regarding international law and cooperation, from grassroots activists to politicians, academics and legal professionals, has also enabled civil society actors to impact many different individuals and relevant actors to ensure that suitable and sound arguments are brought to the appropriate decision makers. Through the use of many different forms of communication, particularly through the use of the media and communications strategies, the Internet and 35 36

37 38

39

Rastan, ‘Testing Cooperation: The International Criminal Court and National Authorities’ (2008) supra n 4 at 455. See Reuter, Wijkström and Meyer, ‘Who Calls the Shots? The Real Normative Power of Civil Society’ in Freise and Hallmann (eds), Modernizing Democracy Associations and Associating in the 21st Century (New York: Springer, 2014) 71 at 81 and Dicklitch, ‘Action for Development in Uganda’ in Welch (ed), ngos and Human Rights: Promise and Performance (Philadelphia: University of Pennsylvania Press, 2001) 182. Evans, ‘Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All’ (2009) supra n 33 at 13. See Tornquist-Chesnier, ‘ngos and International Law’ (2004) supra n 12 at 256 and Tornquist-Chesnier, ‘How the International Criminal Court Came to Life: The Role of Non-governmental Organisations’ (2007) supra n 13 at 451. Glasius, ‘Expertise in the Cause of Justice: Global Civil Society Influence on the Statute for an International Criminal Court’ in Anheier, Glasius and Kaldor (eds), The Global Civil Society Yearbook (Oxford: oup, 2002) 137 at 152.

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online campaigns,40 as well as grassroots ‘street action’,41 civil society has been able to undertake a number of tasks related to galvanising political will related to cooperation. Civil society has affected the political will of State Parties to cooperate with the Court primarily through ‘monitoring’ their compliance with their cooperation obligations. This has ensured that ‘norms are applied in accordance with the spirit in which they were negotiated’42 through the monitoring of State Parties’ implementation of domestic legislation43 and carrying out of cooperation obligations. This practice of promoting accountability44 by both ‘praising’ State Parties45 in their cooperation actions as well as ‘fact finding and shaming’46 norm-violating States, serves to create an environment, which, short of directly coercing State Parties to cooperate with the Court,47 employs ‘tactics of persuasion and pressure to change [State Parties’ cooperation] practices and/or encourage compliance with norms’.48 This is particularly evident ­following examples of State Parties’ non-cooperation with the Court, where the highlighting of non-cooperation of State Parties by civil society49 and the 40 41 42 43

44 45

46 47 48 49

See e.g. Bashir Watch, ‘Bashir Watch’, Bashir Watch, available at: www.bashirwatch.org (last accessed 24 July 2015). Glasius, ‘Expertise in the Cause of Justice: Global Civil Society Influence on the Statute for an International Criminal Court’ (2002) supra n 39. See Tornquist-Chesnier, ‘ngos and International Law’ (2004) supra n 12 at 258. E.g. Amnesty International, ‘The International Criminal Court Summary of Draft and Enacted Implementing Legislation’, cicc, 14 November 2006, available at: www.coalitionfortheicc.org/?mod=browserdoc&type=12&year=2006 (last accessed 24 July 2015). See Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100 American Journal of International Law 348 at 367. E.g. No Peace Without Justice, ‘icc: npwj welcomes Czech Republic’s adoption of Rome Statute implementing legislation’, No Peace Without Justice, 7 January 2014, available at: www.npwj.org/ICC/ICC-NPWJ-welcomes-Czech-Republic%E2%80%99s-adoption -Rome-Statute-implementing-legislation.html (last accessed 4 March 2015). See Tornquist-Chesnier, ‘How the International Criminal Court Came to Life: The Role of Non-governmental Organisations’ (2007) supra n 13 at 452. See Martens, ‘Examining the (Non-) Status of ngos in International Law’ (2003) supra n 11 at 7. Price, ‘Review Article: Transnational Civil Society And Advocacy In World Politics’ (2003) supra n 28 at 584. E.g. Joint Press Release of International Federation for Human Rights (fidh), Chadian League for Human Rights (ltdh) and Chadian Association for the Promotion and Defence of Human Rights (atpdh), ‘Chad Must Arrest Omar Al-Bashir!’, fidh, 22 July 2010, available at: www.fidh.org/Chad-must-arrest-Omar-Al-Bashir (last accessed 4 March 2015).

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media may have a direct impact on the non-repetition of the breach towards the icc by the State Party in question as well as leading to the adoption of practices to address non-compliance and promote compliance. The reasons for this may lie in the fact that highlighting and monitoring cooperation has a direct impact on the reputation of State Parties and therefore carries a ‘reputational risk’50 for States who do not meet their icc Statute obligations in cooperating with the Court. Although this will not be the only factor considered by State Parties as ‘rational actors’51 in fulfilling their cooperation obligations, the danger of reputational damage may at least incentivise, if not coerce, States into meeting their cooperation obligations. Civil society has also influenced political will through its ‘pedagogical’52 role of informing and educating States on their cooperation obligations as well as highlighting the importance of cooperation with the icc through the widedissemination of cooperation-related information. Finally, civil society continues to act in its more traditional methods of lobbying and advocacy in order to urge State Parties to cooperate with the icc. This is particularly evident in relation to the area of ‘voluntary’ cooperation with the icc, where it is, of course, inherent in the ‘voluntary’ nature of certain forms of cooperation that a ‘willingness’ is required by State Parties to enter into such agreements with the Court. In this area of the icc’s ­cooperation regime, civil society has sought to strongly encourage State Parties to enter into such agreements, which are crucial to the Court’s effective functioning.53

50 51

52 53

Rastan, ‘Testing Cooperation: The International Criminal Court and National Authorities’ (2008) supra n 4 at 455. See Woocher, ‘Deconstructing “Political Will”: Explaining the Failure to Prevent Deadly Conflict and Mass Atrocities’ (2001) supra n 24 at 187: ‘The rational actor model posits that a policy outcome is determined by three major factors: (1) the actor’s goals, (2) the actor’s perceptions of the objective situation, and (3) the actor’s judgement of the costs and benefits of various options’. Tornquist-Chesnier, ‘ngos and International Law’ (2004) supra n 12 at 257. See e.g. Amnesty International, ‘International Criminal Court: Amnesty International’s Call For Pledges By States At The 13th Session Of The Assembly Of States Parties’, Amnesty International, 29 October 2014, available at: www.amnesty.org/en/documents/document/ ?indexNumber=IOR53%2F010%2F2014&language=en (last accessed 24 July 2015) or Parliamentarians for Global Action, ‘Rome Plan Of Action On The Prevention Of Atrocities, The Rule Of Law And The International Criminal Court’, pga, 11 December 2012, available at: www.pgaction.org/news/2012/cap-icc-vii.html (last accessed 24 July 2015) at 2.

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Civil Society Work on Different Levels to Strengthen the Inherent Weaknesses in a Decentralised Cooperation Regime

In the following sections, the work of civil society civil society actors acting – often in mobilised coalitions or organisations – on many levels to strengthen cooperation with the icc will be discussed, with the focus on a number of different ‘levels’: the international level (through the lens of the asp), the regional level and the national level. Although a distinction can be made between the actors and actions taken on each level, it is endemic in the transnational nature of civil society work on cooperation with the icc that there are overlaps in actions and actors on each level. For example, ‘international’ ngos undertake actions and influence the ‘national’ level and ‘national’ civil society actors influence and inform the ‘international’ level of discussions by, for instance, the provision of information to the ‘international’ plane. Of course, political will is clearly not the only driving factor in determining State Parties’ cooperation with the Court: issues of capacity to cooperate as well as issues relating to State Parties having the necessary implementing legislation in order to cooperate with the icc are also of key importance. In these areas, too, it will be seen that civil society has used its expertise and key networks of actors to strengthen cooperation with the icc, as well as other more concrete actions to ensure that State Parties meet their cooperation obligations, particularly relating to the execution of arrest warrants. The International Level through the Lens of the International Criminal Court and the Assembly of States Parties The emergence and establishment of an institution representing a more ‘people-empowering international rule of law’54 has gone hand-in-hand with the emergence and increasing participation of civil society in international law making processes and at the institutions established for the maintenance of such a rule of law. This is particularly evident at the icc, where the ‘unprecedented’55 role of civil society in ensuring its establishment has been well-­ documented.56 It is also likely that the role of civil society in its efforts to A

54

Glasius, ‘Expertise in the Cause of Justice: Global Civil Society Influence on the Statute for an International Criminal Court’ (2002) supra n 39 at 137. 55 Ibid. 56 See Glasius, ‘Expertise in the Cause of Justice: Global Civil Society Influence on the Statute for an International Criminal Court’ (2002) supra n 39; Glasius, The International Criminal Court: A Global Civil Society Achievement (Oxford: Routledge, 2006): See also, asp, Recognition of the coordinating and facilitating role of the ngo Coalition for the

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establish the icc has led to the similarly unprecedented role that civil society now plays at the icc. The role of civil society in strengthening cooperation at the icc has its origins prior to its establishment, with civil society actors, in fulfilling their role as ‘partners in the law making process’,57 providing a number of draft legal documents on possible cooperation legislation for consideration at the icc Preparatory Commission. The late, great, Christopher Hall’s position papers provided draft cooperation legislation to future State Parties on the issue – one of the ‘most important which the Preparatory Committee and the diplomatic conference will have to resolve’.58 Such papers, which were widely disseminated and published before the Rome Conference, enabled all stakeholders and observers to be fully informed of critical issues as well as providing valuable expertise to all stakeholders at the time of the icc Statute’s drafting. Moving into the first years of the Court’s operations, the work of civil society with the asp, often as ‘consultation partners’,59 has continued, with civil society moving on to focus on ensuring the effective operation of the Court and icc Statute system rather than on the establishment of the Court. Although, as discussed above, the asp is not a body which strictly centralises icc cooperation, it is nonetheless the central forum through which State Parties to the icc Statute adopt asp level practices to strengthen icc cooperation. It is also a body that must be galvanised and politically motivated to improve cooperation with the Court. To this end, the asp has considered the issue of cooperation with the icc at every annual asp session since the Court’s establishment. Indeed, the asp’s ‘omnibus’ Resolutions (‘Strengthening the International Criminal Court and the Assembly of States Parties’) detail numerous references to cooperation with the icc and the growing importance put on cooperation by State Parties is also shown through ‘stand-alone’

57

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International Criminal Court, 11 September 2003, ICC-ASP/2/Res.8, Preamble at para 2; ‘Acknowledging the important contribution of all participating non-governmental organizations…to the establishment of the International Criminal Court…’. Tornquist-Chesnier, ‘ngos and International Law’ (2004) supra n 12 at 256; Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) supra n 44 at 352; ‘ngos contribute to the development, interpretation, judicial application, and enforcement of international law’. Amnesty International, ‘The International Criminal Court: Making The Right Choices – Part iii Ensuring effective state cooperation’, cicc, 1 November 1997, available at: www .coalitionfortheicc.org/?mod=prepcommittee5 (last accessed 4 March 2015) at 5. Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) supra n 44 at 357.

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Resolutions,60 which have been adopted at more recent sessions. In keeping with civil society’s previous engagement with the asp, civil society has played an active role within its intersessional Bureau Working Group’s work on cooperation, as well as during asp sessions.61 The advocacy and lobbying efforts of civil society have taken place in the forms of reports to the asp62 as well as in informal meetings with State Parties and the asp in the margins of the asp annual sessions and throughout the year. The cicc has also continued with its ‘team’63 structure used at the Rome Conference to advocate a number of positions to the asp relating to cooperation. The cicc’s cooperation team,64 representing a consensus position of those cicc members most active on the issue of cooperation, has presented position papers to the asp since the sixth annual asp session in 2007.65 These 60

A ‘standalone’ cooperation resolution has been adopted by the asp at every session since 2009, apart from the ninth Assembly Session. 61 O’Donohue, ‘The icc and the asp’ in Stahn (ed), The Law and Practice of the International Criminal Court (Oxford: oup, 2015) 107. 62 See e.g. hrw, ‘Human Rights Watch Memorandum for the Thirteenth Session of the International Criminal Court Assembly of States Parties’, hrw, 25 November 2014, available at: www.hrw.org/news/2014/11/25/human-rights-watch-memorandum-thirteenth -session-international-criminal-court-assemb (last accessed 4 March 2015). 63 See The Budget and Finance Team of the cicc, ‘Statement on the Report of the Committee on Budget and Finance: Recommendations to the Fifth Session of the Assembly of States Parties from 23 to 25 November and 27 November to 1 December 2006’, cicc, 17 November 2006, available at: www.coalitionfortheicc.org/?mod=budget&idudctp=21&order=author desc (last accessed 27 July 2015); ‘Since the Rome Diplomatic Conference, Coalition members have organized themselves into teams, one to follow each working group or theme of the intergovernmental process. Coalition teams now follow issues addressed by the Assembly of States Parties or its subsidiary mechanisms and by the International Criminal Court. Teams provide a forum within which interested members discuss issues, follow developments, elaborate relevant research and positions in response to developments, and elaborate and implement advocacy strategies in relation to those positions. All Coalition members are welcome to join any teams and all Coalition members are regularly apprised of the work of the teams’. 64 See cicc ngo Team, ‘Cooperation Agreements and Enforcement’, cicc, available at: www.iccnow.org/?mod=agreements (last accessed 4 March 2015). 65 See cicc Cooperation Team, ‘Comments and Recommendations to the Sixth Session of the Assembly of States Parties’, cicc, 15 November 2007, available at: www.coalitionfortheicc.org/?mod=asp6&idudctp=21&show=all#21 (last accessed 27 July2015); cicc Cooperation Team, ‘Comments and Recommendations to the Seventh Session of the Assembly of States Parties’, cicc, 3 November 2008, available at: www.coalitionfortheicc .org/?mod=asp7&idudctp=21&show=all#21 (last accessed 27 July 2015); cicc Cooperation Team, ‘Comments and Recommendations to the Eighth Session of the Assembly of States

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papers are used to inform State Parties and participants at the sessions on the most pressing developments relating to cooperation and to lobby and advocate for a number of cooperation-related positions with the asp. The influence of civil society’s expert consultative contributions to discussions has undoubtedly benefited from the growing institutional knowledge and expertise within civil society, with many civil society experts having worked on icc issues for many years. This has led to the positions adopted by such experts being both highly sought after and persuasive, based – as they are – on an intimate knowledge of the work of the icc and the asp. As well as making public statements and documents in support of cooperation with the Court, civil society has also continued and fostered ‘the kind of ongoing dialogue between ngos and governments which is essential for ngo input to be effective’.66 Furthermore, the presence of civil society actors at the asp level, ‘credited with expertise and imbued with moral values’,67 working ‘paradiplomat[ically]’68 having ‘honed their own advocacy skills, in identifying when quiet diplomacy would be more effective than public protestations’,69 may also explain civil society’s continued influence on discussions on cooperation at the asp.

66

67 68 69

Parties’, cicc, 9 November 2009, available at: www.coalitionfortheicc.org/?mod=asp8&id udctp=21&show=all#21 (last accessed 27 July 2015); cicc Cooperation Team, ‘Comments and Recommendations to the Ninth Session of the Assembly of States Parties’, cicc, 26 November 2010, available at: www.coalitionfortheicc.org/?mod=asp9&idudctp=21&show =all#21 (last accessed 27 July 2015); cicc Cooperation Team, ‘Comments and Recommendations to the Tenth Session of the Assembly of States Parties’, cicc, 2 December 2011, available at: www.coalitionfortheicc.org/?mod=asp10&idudctp=21&show =all#21 (last accessed 27 July 2015); cicc Cooperation Team, ‘Comments and Recommendations to the Twelfth Session of the Assembly of States Parties’, cicc, 6 November 2013, available at: www.iccnow.org/documents/Cooperation_Team _Submission_ASP12_6NOV13.pdf (last accessed 4 March 2015) and cicc, ‘Comments and Recommendations to the Thirteenth Session of the Assembly of States Parties’, cicc, 27 November 2014, available at: www.iccnow.org/documents/Comments_and _Recommendations_to_the_13th_ASP.pdf (last accessed 4 Match 2015). See Pace and Schense, ‘International Lawmaking of Historic Proportions: civil society and the International Criminal Court’ in Gready (ed), Fighting for Human Rights, (New York, Routledge, 2004) 104 at 106. Glasius, ‘Expertise in the Cause of Justice: Global Civil Society Influence on the Statute for an International Criminal Court’ (2002) supra n 39 at 153. Tornquist-Chesnier, ‘ngos and International Law’ (2004) supra n 12 at 255. See Pace and Schense, ‘International Lawmaking of Historic Proportions’ (2004) supra n 66 at 110.

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The advocacy of civil society and the cicc’s cooperation team has focused primarily on ensuring vocal diplomatic support70 for the issue of cooperation as well as improving institutional support for cooperation71 within the asp. In terms of creating diplomatic support for cooperation, ngos have urged State Parties to use the opportunity provided by the general debate to affirm commitment to promote cooperation, insist that full cooperation is received by the Court and to identify efforts undertaken to enable the icc to conduct its work effectively.72 Such efforts have continued to mainstream cooperation within the asp’s work and to ensure that political will and an environment of positive cooperation with the Court is created at the asp. This can be seen through the continued discussion by State Parties of the need for increased cooperation with the Court in their general debate statements at asp annual sessions. Furthermore, ngos have themselves also continued to raise the issue of the importance of cooperation through their general debate statements to the asp.73 Civil society at the asp level has also undertaken advocacy regarding the strengthening of the asp’s institutional support for cooperation. At the earlier asp annual sessions, this included civil society advocating for the Assembly to strengthen its own work through the creation of a mandate for specific ‘focal point[s]’74 on cooperation to discuss the issue of cooperation with the Court throughout the year within the Working Group of the Bureau. In 2009, the advocacy on the need for a ‘[r]enewal of the mandate of a Focal Point on Cooperation’75 was matched by a corresponding two-year ‘facilitation’ m ­ andate 70 71 72

73

74 75

cicc Cooperation Team, ‘Comments and Recommendations to the Seventh Session of the Assembly of States Parties’ (2008) supra n 65 at 1. cicc Cooperation Team, ‘Comments and Recommendations to the Eighth Session of the Assembly of States Parties’ (2009) supra n 65 at 1. cicc Cooperation Team, ‘Comments and Recommendations to the Sixth Session of the Assembly of States Parties’ (2007) supra n 65 and cicc, ‘Letter to Governments in advance of the asp general debate’, cicc, 30 November 2011, available at: www.coalitionfortheicc .org/?mod=browserdoc&type=21&year=2011&b=2 (last accessed 27 July 2015). E.g. The Kenyans for Peace with Truth and Justice (kptj), ‘Statement by the Kenyans for Peace with Truth and Justice (kptj) made at the 13th Session of the Assembly of State Parties to the Rome Statute During the General Debate’, icc, 12 December 2014, available at: www.icc-cpi.int/en_menus/asp/sessions/general%20debate/Pages/GeneralDebate _13th_session.aspx (last accessed 27 July 2015). cicc Cooperation Team, ‘Comments and Recommendations to the Sixth Session of the Assembly of States Parties’ (2007) supra n 72. cicc Cooperation Team, ‘Comments and Recommendations to the Eighth Session of the Assembly of States Parties’ (2009) supra n 71.

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within the Bureau to continue discussions on strengthening cooperation,76 which have continued to the present day. Furthermore, civil society lobbying efforts have continued to advocate for a more prominent role for the discussion of cooperation-related issues by the asp at its annual sessions. Despite lobbying efforts by civil society77 for formal discussions at asp sessions, these had not always been forthcoming. However, in the absence of an official forum for discussions, civil society organisations have themselves convened meetings, as well as numerous ‘side-events’ on cooperation issues, at every annual asp session, informally with State Parties attendees and Court officials.78 This work has led to informal discussions and consultations (although organised by State Parties and chaired by a State Party facilitator) on cooperation at recent asp sessions.79 Finally to this end, civil society activism calling for formal plenary discussions on cooperation80 and, later, for cooperation to become a formal agenda item at all asp sessions,81 led to the asp exploring the possibility of holding such a standing agenda item on cooperation82 and formally resolving to hold a specific cooperation plenary session on its agenda at its eleventh session.83 Such sessions have not only provided a framework for inter-sessional work by the asp on cooperation, but have also served to highlight and allow for comprehensive discussions on State Parties’ efforts to strengthen cooperation with the Court and to share experiences on cooperation. Furthermore, at each formal asp plenary session, civil society has also been given the opportunity to address the plenary on issues of cooperation, either as formal panellists in 76 See asp, Cooperation, 26 November 2009, ICC-ASP/8/Res.2 at para 16. 77 cicc Cooperation Team, ‘Comments and Recommendations to the Sixth Session of the Assembly of States Parties’ (2007) supra n 72 and cicc Cooperation Team, ‘Comments and Recommendations to the Eighth Session of the Assembly of States Parties’ (2009) supra n 71. 78 See cicc, ‘cicc Report on the Sixth Session of the icc Assembly of States Parties’, cicc, August 2008, available at: www.coalitionfortheicc.org/?mod=asp6 (last accessed 27 July 2015) at para 105. 79 cicc, ‘Report on the Eighth Session of the Assembly of States Parties to the Rome Statute’, cicc, January 2010, available at: www.coalitionfortheicc.org/?mod=asp8 (last accessed 27 July 2015) at 15. 80 cicc Cooperation Team, ‘Comments and Recommendations to the Ninth Session of the Assembly of States Parties’ (2010) supra n 65 at 3. 81 cicc Cooperation Team, ‘Comments and Recommendations to the Tenth Session of the Assembly of States Parties’ (2011) supra n 65 at 3. 82 asp, Strengthening the International Criminal Court and the Assembly of States Parties, 10 December 2010, ICC-ASP/9/Res.3 at para 11. 83 asp, Cooperation, 20 December 2011, ICC-ASP/10/Res.2 at para 14.

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discussions, or through formal interventions from the floor.84 Such interventions have been made by a wide range of ngos from many different regions, covering a multitude of interests.85 Another initiative undertaken by civil society has concerned the strengthening of procedures through which the asp addresses findings of non-cooperation pursuant to Arts. 87(5), 87(7) and 112(2)(f) icc Statute. This issue was preemptively addressed by civil society as early as the seventh asp session in 2008,86 with ngos calling on State Parties to consider the appropriate procedures for addressing non-cooperation. Such calls were echoed by civil society at the asp’s eighth and ninth sessions,87 with the asp formally mandating its Bureau to prepare a report on such procedures at its ninth session88 and adopting the procedures at its tenth session.89 In more recent years, civil society’s advocacy has continued to focus on strengthening the asp’s institutional cooperation policies and practices, with a particular focus on ensuring that State Parties adopt a more comprehensive ‘non-essential contacts’ policy.90 Such a policy is viewed by civil society as key to maintaining the icc’s authority of arrest warrants by isolating fugitives and sending a strong political message to fugitives that ‘there can be no business 84

cicc, ‘Statement of Mr Sunil Pal on cooperation during the 11th asp’, cicc, 20 November 2012, available at: www.coalitionfortheicc.org/?mod=asp11&idudctp=21&show=all#21 (last accessed 27 July 2015). 85 E.g, Kenyans for Peace with Truth and Justice, ‘Statement Delivered During the Cooperation Session at the 13th Assembly of State Parties’, Scribd, 11 December 2014, available at: www.scribd.com/doc/249901929/KPTJ-Statement-Delivered-During-the -Cooperation-Session-at-the-13th-Assembly-of-State-Parties#scribd (last accessed 4 March 2015). 86 cicc Cooperation Team, ‘Comments and Recommendations to the Seventh Session of the Assembly of States Parties’(2008) supra n 70 at 2. 87 cicc Cooperation Team, ‘Comments and Recommendations to the Eighth Session of the Assembly of States Parties’ (2009) supra n 71; cicc Cooperation Team, ‘Comments and Recommendations to the Ninth Session of the Assembly of States Parties’ (2010) supra n 80. 88 asp, Strengthening the International Criminal Court and the Assembly of States Parties (2010) supra n 82 at para 12. 89 See asp, Strengthening the International Criminal Court and the Assembly of States Parties, 21 December 2011, ICC-ASP/10/Res.5, Annex: Assembly procedures relating to non-cooperation. 90 cicc Cooperation Team, ‘Comments and Recommendations to the Twelfth Session of the  Assembly of States Parties’ (2013) supra n 65 at 1 and cicc, ‘Comments and Recommendations to the Thirteenth Session of the Assembly of States Parties’ (2014) supra n 65 at 1.

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as usual’.91 Of particular note has been the advocacy of civil society aimed at ensuring that any asp policy on non-essential contact be as ‘strong’ as ­possible. This has been achieved through keeping issues on the agenda at ­subsequent asp sessions until such a policy is adopted to ensure that State Parties undertake a policy which is as effective as possible. It is noteworthy that, following advocacy and lobbying efforts by civil society, the issue of nonessential contact has moved to the ‘operative’ level of the asp’s cooperation Resolution.92 Finally, civil society has continually lobbied State Parties at asp sessions to sign voluntary cooperation agreements and, since 2010, to ensure that ‘pledges’ made on cooperation at the Kampala Review Conference93 are reviewed and implemented.94 Monitoring State Parties’ obligations at the asp level has proved to be an effective way in which to pressure State Parties into meeting their obligations. Highlighting instances of non-fulfilment of pledges is aimed at ensuring that States honour their obligations as well as creating an environment of continual monitoring of State Parties’ fulfilment of their obligations. This mainstreaming and constant ‘holding to account’ has a critical role to play in urging compliance by State Parties and, following civil society activism, has also led to the asp not only mandating the issue of follow-up to Kampala pledges in more recent Resolutions,95 but also considering a framework for receiving new pledges in the future.96 91 Ibid cicc Cooperation Team, ‘Comments and Recommendations to the Twelfth Session of the Assembly of States Parties’ (2013). 92 asp, Resolution on Cooperation, 17 December 2014, ICC-ASP/13/Res.3 at para 6. 93 See cicc, ‘Review Conference 2010 Pledges by States and Organizations by Region’, cicc, 21 March 2011, available at: www.coalitionfortheicc.org/?mod=review&idudctp=14&show =all&order=titleasc (last accessed 27 July 2015). 94 The Coalition’s Cooperation Team was also instrumental in ensuring that the issue of cooperation appeared as one of the ‘stocktaking’ issues at the Kampala Review Conference. See cicc, ‘cicc Background Paper in Preparation for the Review Conference of the Rome Statute’, cicc, 20 May 2010, available at: www.coalitionfortheicc.org/?mod=d ocbylanguage&year=2010&lg=2&lang=en&b=16 (last accessed 28 July 2015). 95 asp, Resolution on cooperation (2014) supra n 92 preamble: ‘Recalling the pledges relating to cooperation made by States Parties at the Review Conference in Kampala and noting the importance of ensuring adequate follow-up with regard to the implementation of pledges’. See also, asp, Strengthening the International Criminal Court and the Assembly of States Parties, 17 December 2014, ICC-ASP/13/Res.5 at para 91. 96 cicc, ‘Comments and Recommendations to the Thirteenth Session of the Assembly of States Parties’ (2014) supra n 90 at 2.2.

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B Regional Civil Society Cooperation Efforts In relation to the icc, the notion of regional groupings is hard to define and certainly each ‘icc region’97 cannot be said to be homogenous and consistent in its actions and relationship with the icc. However, regional organisations do play a role in relation to cooperation with the icc and Arts. 87(6) and 54(3) (c) and (d) icc Statute provide for the possibility of the Court and the otp, respectively, to enter into arrangements or agreements with intergovernmental organisations for assistance or cooperation. On this basis, a number of agreements or exchanges of letters98 relating to cooperation have been signed as well as other instruments, often signed between the icc and regional organisations,99 which specifically relate to cooperation with the icc. In the following section, the particular work of civil society organisations in strengthening regional institutional cooperation, mainstreaming cooperation and seeking to counter negative icc cooperation stances within regional institutions will be examined. Again, a broad range of civil society actors act either within specific given platforms given to civil society within international institutions (such as a standing invitation given to civil society to address the eu cojur-icc) or generally advocate to generate political will and affect decision making within international organisations. This has ensured that agreements are signed with the icc, that institutional mechanisms are in place for regional organisations to cooperate as effectively as possible with the icc and that, in instances of negative stances with regard to the icc, these are highlighted and countered in public forums as well as at the institutional level itself. Furthermore, in galvanising institutional cooperation efforts, State Parties of each region have also been encouraged to cooperate with the icc. In the following section, examples of civil society actions from Europe, the Americas and the African region have been highlighted, in particular, as they demonstrate different types 97

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For the purposes of the icc, five regions have been defined as African States, Asia-Pacific States, Eastern Europe, Latin American and Caribbean States and Western European and Other States. See icc, ‘The State Parties to the Rome Statute’, icc, available at: www .icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20 the%20rome%20statute.aspx (last accessed 28 July 2015). See e.g. icc, Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, 10 April 2006, ICC-PRES/01-01-06 and icc, Exchange of Letters Between the International Criminal Court and the General Secretariat of the Organization of American State for the establishment of a Framework Cooperation Arrangement, 18 April 2011, ICC-PRES/08-02-11. See e.g. icc, Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, 1 May 2006, ICC-PRES/01-01-06.

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of actions: institutional strengthening to cooperate with the icc, galvanising political will to cooperate and sign agreements with the Court and actions taken to highlight negative positions to the icc related to cooperation. Of course civil society actors and actions within any continent are not ‘homogenous’,100 with numerous views prevalent on the icc both sceptical and pro-icc. However, the breadth of civil society actors, acting both on national and regional levels, ensures that political will, as well as support for the Court and cooperation on a regional level, is generated.101 Indeed, civil society actors in the regions comprise a huge breadth of groups, including more traditional ‘human rights activists’, regional and local offices of transnational organisations, national icc coalitions, parliamentarians, women- and gender-focused organisations, journalists associations and legal professional associations. As such, the influence of civil society organisations over a broad spectrum ensures that civil society actions are not only targeted at a broad range of actors – policy makers to States’ civil populations – but also cover a wide range of issues. Furthermore, the huge breadth of national and regional civil society organisations, with unique and vital knowledge of local and regional political and cultural aspects, ensures that civil society activism in each continent can reach many different people, in the most effective and tailored manner. The eu remains a key interlocutor with the icc as an institution and through its Member States who, through the conclusion of many agreements, have ensured that safeguarding and strengthening cooperation102 with the icc remains a key objective of the eu’s engagement with the icc and its overall activities. Civil society has found itself engaging in many fora with the eu in its efforts to strengthen cooperation through the consolidation of the eu’s institutional cooperation mechanisms as well as the political will of Member States to cooperate with the icc. For example, through the working group cojur-icc,103 ngos are systematically invited to meet with eu Member States’ representatives and to brief 100 See e.g. Murithi, ‘The African Union and the International Criminal Court: An Embattled Relationship?’ (2013) 8 The Institute for Justice and Reconciliation: Policy Brief, 1 at 7. 101 See, for an example of the breadth of civil society organisations active in the Africa region, the 163 civil society groups who signed a letter to Foreign Ministers on support for the icc. hrw, ‘Letter to Foreign Ministers on Support for the icc in Advance of Extraordinary au Summit’, hrw, 10 October 2013, available at: www.hrw.org/news/2013/10/04/letter-foreignministers-support-icc-advance-extraordinary-au-summit (last accessed 6 March 2015). 102 eu, Council Decision 2011/168/CFSP of 21 March 2011 on the International Criminal Court and repealing Common Position 2003/444/CFSP, oj l 76/56. 103 See General Secretariat of the Council, ‘The European Union and the International Criminal Court’, eu, November 2007, available at: www.ec.europa.eu/external_relations/ human_rights/icc/index_en.htm (last accessed 28 July 2015) at 4.2.

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Member States on numerous icc matters, often pertaining to cooperation.104 Such initiatives, often undertaken by international ngos comprising human rights activists, members of the legal profession or parliamentarian networks, seek to lobby and advocate for improved cooperation with the icc by the eu – through its decisions and within its numerous initiatives – and its Member States – through the mobilisation of cooperation efforts. For example, civil society has continued to lobby and advocate for eu Member States to complete framework agreements and other ‘voluntary agreements’ with the icc. Civil society has also used its cojur-icc platform to address issues relating to eu institutional responses and practices relating to cooperation, for example on issues related to non-cooperation with the icc and non-essential contact.105 This has been followed by the adoption of an ‘information note’ concerning ‘[t]he eu’s response to non-cooperation with the International Criminal Court by third states’106 and covers issues relating to non-cooperation and non-essential contact. Civil society has also undertaken campaigns and efforts to urge condemnatory eu responses to instances of non-cooperation by third States.107 Such efforts aim to mobilise the eu to put its considerable political and diplomatic pressure on the State Parties that are not fulfilling their cooperation obligations. Furthermore, civil society has undertaken ­advocacy with regard to the eu ‘Genocide Network’,108 including urging the strengthening of such a network109 and advocating that ‘concrete steps be 104 See e.g. International Bar Association, ‘cojur-icc address’, International Bar Association, 25 September 2013, available at: www.ibanet.org/ICC_ICL_Programme/Programme _commentaries.aspx (last accessed 6 March 2015). 105 See e.g. International Bar Association, ‘cojur-icc address’, International Bar Association, 4 June 2013, available at: www.ibanet.org/ICC_ICL_Programme/Programme_commentaries .aspx (last accessed 25 August 2015). 106 See Council of the eu cojur, ‘The eu’s response to non-cooperation with the International Criminal Court by third states’, eu, 27 November 2013, available at: www.eeas.europa.eu/ human_rights/icc/docs/st_16993_2013_init_en.pdf, (last accessed 6 March 2015). 107 See e.g. hrw, ‘Letter to High Representative Catherine Ashton on Deployment of eu Election Observation Mission in Sudan’, hrw, 29 March 2010, available at: www.hrw.org/ news/2010/03/25/letter-high-representative-catherine-ashton-deployment-eu-election -observation-missi (last accessed 6 March 2015). 108 eu, Council Decision 2002/494/JHA of 13 June 2002 setting up a European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes, oj l 167/1. A network of national contact points for the exchange of information concerning the investigation and prosecution of genocide, crimes against humanity and war crimes. 109 See REDRESS, fidh, cicc, ‘eu Network of contact point – Joint Letter to Vice President and eu Justice Commissioner Reding’, cicc, 27 April 2011, available at: www.coalitionfortheicc.org/?mod=eu&idudctp=21&order=titleasc&show=all#21 (last accessed 28 July 2015).

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taken to ensure that existing [eu] legal instruments and tools are implemented effectively’, and that the responsibilities of eu institutions and national authorities be clarified.110 Regarding the Americas region, civil society has continued to play a role in increasing political support for the Court as well as mainstreaming cooperation within the region. Since 1999 the Organization of American States (oas) has made declarations on the icc: first calling for the adoption of the icc Statute and, following this, adopting resolutions on the ‘promotion of the International Criminal Court’. The oas also convenes biennial ‘working meetings’ on the icc, during which issues of cooperation with the icc have taken place and at which civil society actors have been able to address the issue of cooperation.111 Civil society also continues to engage with other regional groups in the Americas region, for example with mercosur, where civil society members have continued to urge for the adoption of a ‘cooperation Law that can be taken in consideration by the national parliaments of the Member States of mercosur to adopt laws that will allow the Cooperation between those countries and the icc’, as well as to sign an ‘Agreement for Cooperation and Technical Assistance to the icc’.112 This led to an exchange of letters between the icc and parlasur – the mercosur Parliament – for the ­establishment of a Framework Cooperation Arrangement.113 110 See REDRESS et al, ‘Letter to Members of the eu Genocide Network on Strengthening Efforts to Combat Impunity for Grave International Crimes within eu Member States’, hrw, 29 October 2013, available at: www.hrw.org/news/2013/10/29/letter-members-eu -genocide-network-strengthening-efforts-combat-impunity-grave (last 28 July 2015). 111 Permanent Council of The Organization of American States, Committee on Juridical and Political Affairs, ‘Report of The Working Meeting on The International Criminal Court’, The Organization of American States, 6 August 2013, OEA/Ser.G, CP/CAJP-3106/12 rev.4.Add.6, available at: www.oas.org/en/sla/dil/docs/CP-CAJP_3106-12_rev4_add6_ENG .pdf (last accessed 6 March 2015) at 7 and Permanent Council of the Organization of American States, Committee on Juridical and Political Affairs, ‘Presentaciones’, Organization of American States, 6 August 2013, OEA/Ser.G CP/CAJP-3106/12 rev. 4 add. 5, available at: www.oas.org/es/sla/ddi/docs/CP-CAJP_3106-12_rev4_add5.pdf (last accessed 6 March 2015) at 16. 112 See e.g. Parliamentarians for Global Action, ‘Press Release: pga Members Present Strategy for Cooperation between the Mercosur Parliament and the International Criminal Court’, pga, 12 May 2014, available at: www.pgaction.org/news/press-releases/pga-members -present-strategy-for-cooperation-between-the-mercosur-parliament-and-the-intern ational-criminal-court.html (last accessed 6 March 2015). 113 icc, Exchange of Letters between The International Criminal Court and the Parliament of Mercosur, 4 August 2014, ICC-PRES/14-01-14.

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Finally, civil society has undertaken numerous activities within the Africa region and at the au, where cooperation with the icc is of utmost importance in light of the fact that the Court currently has only African situations under investigation. African civil society organisations have been very vocal in seeking to further strengthen cooperation with the Court and to create regional political support for the icc.114 At an institutional level, particularly at the level of the au, efforts by civil society have aimed at establishing a positive relationship between the icc and the au and countering the au’s position that icc State Parties who are au members shall not cooperate with the Court.115 For example, civil society has long advocated for the establishment of an au liaison office in Addis Ababa by the icc in order to galvanise cooperation of its members with the Court and to foster ‘a cordial and fruitful working relationship’.116 Efforts in this regard have been undertaken by both African regional civil society groups as well as more transnational groups. Indeed, some ‘Pan-African’ civil society groups have engendered very close relationships with the au, which have undoubtedly allowed for greater influence over the work of the au.117 Efforts have focused on both giving the necessary resources to the Court for the establishment of such an office as well as urging 114 See e.g. Ugandan cicc, Human Rights Network Uganda and Avocats Sans Frontieres, ‘Eleven Years since the Creation of the International Criminal Court: Calling on the au to support the work of the icc’, cicc, 17 July 2013, available at: www.coalitionfortheicc.org/? mod=browserdoc&type=21&year=2013&b=8 (last accessed 29 July 2015); A Declaration which calls upon ‘the au to revisit its commitment to the icc and grant it due cooperation, in order to live up to its objectives enshrined in Article 3 (e) of the Constitutive Act of the African Union’. 115 See au Assembly, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (icc), 3 July 2009, Doc. Assembly/AU/13(xiii) at para 10. 116 See cicc Cooperation Team, ‘Comments and Recommendations to the Eighth Session of the Assembly of States Parties’ (2009) supra n 71 at 3 or Pan African Lawyers Union, ‘Promoting Accountability for International Crimes in Africa’, Pan African Lawyers Union, 12 October 2013, available at: www.lawyersofafrica.org/archives/1435 (last accessed 8 March 2015). 117 See Pan African Lawyers Union, ‘What palu Does’ Pan African Lawyers Union, available at: www.lawyersofafrica.org/what-palu-does, (last accessed 8 March 2015); ‘palu has developed an enviable position as a respected cso stakeholder at the African Union (au) and within the African Governance Architecture (aga). Key au officials and stakeholders already see palu as an important player to interact, partner and collaborate with’. palu also has a formal Memorandum of Understanding (MoU) with the au. See Pan African Lawyers Union, ‘Memorandum of Understanding Establishing the Framework for Cooperation and Collaboration between the African Union and The Pan African Lawyers

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efforts to continue to set up such an office in order to secure broad regional support for the Court.118 Such calls also extend to urging not just the au, but also the Court to improve ‘its channels of communication and exchange with the au and African member states even in times of difficult relations’.119 Certain African civil society groups have gone one step further in seeking to resolve cooperation difficulties at the au level by applying to the African Court on Human and People’s Rights for an Advisory Opinion120 on the apparent conflict in treaty obligations under the icc Statute to arrest and the au resolution calling for non-cooperation. The request also sought an opinion on whether all African State Parties to the icc have an overriding legal obligation above all other legal or diplomatic obligations arising from resolutions or decisions of the au to arrest and surrender Sudanese President Al Bashir upon his entry to an African icc State Party. Such steps by civil society organisations, Union’, Pan African Lawyers Union, 5 May 2006, available at: www.lawyersofafrica.org/ documents (last accessed 8 March 2015). 118 See cicc Cooperation Team, ‘Comments and Recommendations to the Ninth Session of the Assembly of States Parties’ (2010) supra n 80 at 4 or See Pan African Lawyers Union, ‘Recommendation by a group of more than 20 experts in international and transitional justice and human rights hosted by the International Refugee Rights Initiative (irri), Kituo Cha Katiba, and the Pan-African Lawyers Union (palu)’ (2013) supra n 116. 119 See Ibid. 120 Advisory Opinion Request No 001/2014, African Court on Human and Peoples’ Rights, ‘Coalition on the international criminal court ltd/gte (ciccn), Legal defence & assistance project ltd/gte (ledap), Civil resource development & documentation centre (cirddoc) and Women advocates documentation centre ltd/gte (wardc)’, African Court on Human and Peoples’ Rights, 28 March 2014, available at: www.african-court.org/en/index .php/2012-03-04-06-06-00/advisory-opinion/2-home/534-coalition-on-the-international -criminal-court-ltd-gte-ciccn-legal-defence-assistance-project-ltd-gte-ledap-civil -resource-development-documentation-center-cirddoc-and-women-advocates-doc umentation-center-ltd-gte-wardc (last accessed 28 July 2015). The Request for an Advisory Opinion was made by four Nigerian ngos: The Nigerian cicc, The Legal Defence & Assistance project, The Civil Resources Development and Documentation Center and Women Advocates Documentation Center ltd/gte. The Advisory Opinion was sought on two issues: (a) Whether the Treaty obligation of an African State Party to the icc Statute to cooperate with the Court is superior to the obligation of that State to comply with the au resolution calling for non-cooperation of its members with the icc? (b) If the answer to the question (a) above is in the affirmative, whether all African State Parties to the icc have an overriding legal obligation above all other legal or diplomatic obligations arising from resolutions or decisions of the AU to arrest and surrender President Omar Al Bashir any time he enters into the territory of any of the African State Parties to the icc? At time of writing the website of the African Court on Human and Peoples’ Rights listed the request as ‘pending’.

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seek not only to resolve apparent legal barriers to cooperation with the icc, and force the initiative to resolve cooperation issues at the au level, but also put issues of non-cooperation and the need for a resolution on the regional and international agendas. It is clear that, whilst cooperation between the au and the icc remains a more fraught aspiration at present, the constant pressure and advocacy efforts by African civil society organisations seeks to – at least in part – impact upon the adoption of negative resolutions regarding cooperation by the au with the icc.121 However, it is also crucial to note that, whilst cooperation between the au and icc is yet to be fully realised, individual African State Parties have continually publicly supported cooperation with the icc122 and cooperation between the icc and individual African State Parties remains positive. On this basis, the domestic work undertaken by civil society organisations in urging national governments to cooperate with the Court, particularly in light of the au’s non-cooperation decisions,123 is highly instrumental in ensuring that individual State Parties uphold their icc Statute obligations towards the Court. C National/Domestic Level As discussed above, the issue of cooperation of State Parties with the icc is a matter for individual State Parties. It is clear that the issue of strengthening icc cooperation is not therefore an issue for the international sphere alone, but 121 E.g. No Peace Without Justice, ‘African Union: icc non-cooperation drive thwarted, but African States should do more to uphold the rights of African victims’, No Peace Without Justice, 12 October 2013, available at: www.npwj.org/ICC/AU-and-ICC-African-States -should-uphold-rights-African-victims.html-0 (last accessed 8 March 2015). 122 See e.g. Kelebone A. Maope, ‘Statement By H.E. Mr Kelebone A. Maope Ambassador And Permanent Representative Of Lesotho To The United Nations On Behalf Of African State Parties To The Rome Statute At The Thirteenth Session Of The Assembly Of States Parties To Rome Statute Of The International Criminal Court’, ICC, 8 December 2014, available at: www.icc-cpi.int/en_menus/asp/sessions/general%20debate/Pages/GeneralDebate_13th _session.aspx (last accessed 29 July 2015); ‘Africa has thus cooperated with the Court; indeed, all of the Court’s current situations are in Africa, the majority of which were selfreferrals. It is therefore self-evident that Africa is cooperating with the Courts…The African Union (au) repeated calls for non-cooperation should not obscure the consistent, active backing for the icc among African governments and civil society across the African continent’. 123 See e.g. discussions on the reaction of South African civil society to South Africa’s endorsement of the au’s decision not to cooperate with the icc in: Du Plessis, Louw and Maunganidze, ‘African efforts to close the impunity gap: Lessons for complementarity from national and regional actions’ (2012) Paper 241, Pretoria: Institute for Security Studies, 1 at 11.

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rather requires proactive steps to be taken at the national level. In this regard, the role of civil society in strengthening cooperation with the icc on the domestic or national level has taken many forms, with international and national civil society organisations (often acting within national coalitions or networks) undertaking numerous actions to raise awareness and promote cooperation by State Parties. Clearly, national ngos are very well-placed to engage with national cooperation actors as well as being those with the highest level of expertise of their own State’s cooperation practices, legislation and deficiencies. Whilst the role of civil society organisations in ensuring that the necessary political will exists for State Parties to cooperate with the Court has already been discussed, other domestic and ‘national level’ focused activities of civil society warrant consideration. The first area to be discussed concerns efforts by civil society in ensuring that State Parties have the necessary implementing legislation and capacity to cooperate with the Court because, whilst political willingness to cooperate is crucial, the question of having the necessary implementing legislation and capacity to cooperate is equally important. In this area, civil society works to ensure that State Parties are able to cooperate with the icc. Secondly, the role of civil society in ensuring that State Parties meet their icc Statute cooperation obligations at a domestic level, through the critical analysis of State policy, and the exposing of arbitrary and norm-violating State action,124 is particularly evident in the efforts around ensuring the execution of icc arrest warrants. Civil Society Work on Implementing Legislation to Cooperate with the International Criminal Court The importance of having the necessary national implementing legislation to cooperate with the icc has been regularly highlighted by both State Parties125 and civil society.126 It is a key feature of the icc Statute’s complementarity regime that State Parties should adopt implementing legislation within their national law so that they are able to meet their icc Statute obligations on a domestic level, particularly in order to domestically prosecute those who have committed the crimes found in the icc Statute. Without entering into a full

D

124 See Pedraza-Farina, ‘Conceptions of Civil Society in International Lawmaking and Implementation: A Theoretical Framework’ (2013) supra n 13 at 24. 125 E.g. asp, Resolution on Cooperation, (2014), supra n 92 at para 13. 126 E.g. cicc, ‘icc Implementing Legislation – Questions and Answers’, cicc, 27 April 2010, available at: www.coalitionfortheicc.org/?mod=browserdoc&type=12&year=2010 (last accessed 29 July 2015).

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discussion of the icc’s complementarity regime, the requirement to adopt implementing legislation127 or the ‘monist’ or ‘dualist’ nature of the icc Statute’s incorporation into domestic law, it is possible to concentrate, in particular, on the adoption of implementing legislation by State Parties relating to cooperation. Cooperation with the icc is the principal treaty obligation under the icc Statute and implementation of domestic cooperation legislation is required pursuant to Art. 88 icc Statute, which provides that State Parties must have the necessary procedures within their national law to cooperate with the icc under Part ix icc Statute. However, with regard to the implementation of cooperation legislation and procedures, State Parties have ‘always consistently interpreted this area of domestication of the [icc Statute] as non self-executing’128 with the result that legislation has to be adopted domestically in order for State Parties to fully cooperate with the Court. The adoption of such domestic legislation depends on both political will to adopt implementing legislation as well as the capacity to adopt such legislation. As regards political will, civil society has long advocated for and urged State Parties to adopt implementing legislation. Such efforts have also been augmented by the role played by civil society in monitoring the implementation by State Parties of domestic legislation.129 The monitoring and highlighting of State Parties’ implementing legislation again serves to gently pressure State Parties to meet their obligations. Furthermore, through the work of diverse civil society organisations and actors including parliamentarians, academics and 127 See Donat Cattin, ‘Approximation or Harmonisation as a Result of Implementation of the Rome Statute’ in Stahn and Van den Herik (eds), The Diversification and Fragmentation of International Criminal Law (Leiden: Martinus Nijhoff, 2012) 361 at 372 or Bekou, ‘Regionalising icc Implementing Legislation: A Viable Solution for the Asia-Pacific Region?’ in Boister and Costi (eds), Droit Pénal International dans le Pacifique: Tentatives d’Harmonisation Régionale/Regionalising International Criminal Law in the Pacific (Christchurch: New Zealand Association for Comparative Law and Association de Législation Comparée des Pays du Pacifique, 2006) 117 at 123–124; hrw, ‘Making the International Criminal Court Work: A Handbook for Implementing the Rome Statute’, cicc, September 2001, available at: www.coalitionfortheicc.org/?mod=browserdoc&type =21&year=2001 (last accessed 29 July 2015) at 6. 128 Donat Cattin, ‘Approximation or Harmonisation as a Result of Implementation of the Rome Statute’ (2012) supra n 127 at 377. 129 See e.g. Amnesty International, ‘The International Criminal Court Summary of Draft and Enacted Implementing Legislation’ (2006) supra n 43 or hrw, ‘The Status of icc Implementing Legislation: States Parties need to expedite enactment of implementing legislation’, cicc, February 2003, available at: www.coalitionfortheicc.org/?mod=browser doc&type=21&year=2003&b=2 (last accessed 29 July 2015).

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the legal profession, the most appropriate constituents within State Parties are engaged with the aim of ensuring that they adopt cooperation legislation. For example, by working with parliamentarians, a State’s key l­egislators can be engaged to generate the political will to cooperate, urge g­ overnments to prepare legislation and, if necessary, to draft legislation themselves.130 There are numerous obstacles to fully implementing the icc Statute, including legal difficulties regarding expertise within a State Party, political challenges that hinder the ratification process, a lack of human and financial resources and the unavailability of adequate information relating to implementation of the icc Statute.131 Civil society organisations have therefore been keenly involved with State Parties to ensure that they have the necessary ‘legal tools’, information, technical expertise and capacity to adopt cooperation implementing legislation. Since the adoption of the icc Statute, civil society has worked towards capacity building for State Parties, for example, in the provision of handbooks132 for implementing the icc Statute and in providing manuals for State Parties regarding their icc Statute obligations.133 A number of civil society organisations also give direct technical assistance to State Parties in order to adopt the appropriate implementing legislation on cooperation. For example, the Secretariat of Parliamentarians for Global Action states that it:

130 See Parliamentarians for Global Action, ‘Implementing Legislation on the Rome Statute’, pga, available at: www.pgaction.org/programmes/ilhr/icc-legislation.html (last accessed 29 July 2015). 131 asp, Report of the Bureau on the Plan of action for achieving universality and full implementation of the Rome Statute of the International Criminal Court, 28 October 2010, ICCASP/9/21 at para 20; ‘Challenges: Based on the information provided, following key challenges have been identified: (a) Legal difficulties in amending constitutions or national legislation in order to ratify the Rome Statute; (b) Political challenges that hinder the ratification process; (c) Lack of human and financial resources; and (d) Unavailability of adequate information on resources and activities relating to the ratification and implementation of the Rome Statute’. 132 E.g. The International Centre for Criminal Law Reform and Criminal Justice Policy, ‘International Criminal Court Manual for the Ratification and Implementation of the Rome Statute Third Edition’, cicc, March 2008, available at: www.coalitionfortheicc.org/ ?mod=romeratification&idudctp=21&show=all (last accessed 29 July 2015) at 27–60 or hrw, ‘Making The International Criminal Court Work: A Handbook For Implementing The Rome Statute’ (2001) supra n 127. 133 E.g. International Bar Association, ‘International Criminal Law Manual’, International Bar Association, available at: www.ibanet.org/Article/Detail.aspx?ArticleUid=aad84f6f-8058 -4a1f-91ce-be0eba974d3e (last accessed 8 March 2015).

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[P]rovide[s] technical and political assistance, cooperation and peer-topeer trans-national dialogue to promote political will and to ensure the usage of parliamentary prerogatives to achieve the implementation of the Rome Statute in order to […] ensure full cooperation with the icc134 Furthermore, the provision and dissemination of information regarding implementing legislation provides an absolutely vital function in offering legal materials to States that require information on implementing legislation. This material, such as that provided by the ‘Legal Tools Project’135 through its National Implementing Legislation Database (nild), gives legal practitioners, ngos and other users detailed information on States’ implementing legislation and allows those State Parties requiring very precise legal information to access implementing legislation, which can then be used by a State in formulating its own legislation. Finally to this end, civil society has also been heavily involved in capacity building related to implementing legislation. Whilst State Parties may be willing to adopt cooperation implementing legislation, capacity to do so may be lacking. In order to fill this gap, civil society organisations, including academic institutions, have undertaken numerous examples of ‘trainings’ and capacity building initiatives in many States.136 The expert nature of civil society actors, coupled with experience they have gained over the Court’s first years of operations, has ensured that civil society actors are often widely accepted to be leading experts as donors of legal ­expertise on implementing legislation. This has undoubtedly increased the trust in  civil society organisations and the willingness of State Parties to approach civil society for assistance in drafting cooperation laws. In addition,

134 Parliamentarians for Global Action, ‘Implementing Legislation on the Rome Statute’ supra n 130. 135 See icc, ‘National Implementing Legislation Database’, icc, available at: www.legal-tools .org/en/go-to-database/national-implementing-legislation-database/(last accessed 17 August 2015) and asp, Resolution on Cooperation (2014) supra n 92 at para 14. 136 See e.g. University of Nottingham Human Rights Law Centre (hrlc), ‘Training and Capacity Building on Ratification and Implementation of the Rome Statute of the International Criminal Court (icc) for the caricom Region’, hrlc, March 2009, available at: www.nottingham.ac.uk/hrlc/projects/projects2009.aspx (last accessed 29 July 2015); hrlc, ‘Training Course on Ratification and Implementation of the Rome Statute of the International Criminal Court (icc) for the Asia-Pacific Region’, hrlc, September 2005, available at: www.nottingham.ac.uk/hrlc/projects/projects2005.aspx (last accessed 28 July 2015).

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the ‘neutral[ity]’137 of civil society actors, particularly in relation to their roles in capacity building and assistance with implementing legislation, enables civil society to be trusted by State Parties as technical information providers and experts. This may also explain the increased willingness of State Parties to  approach civil society organisations and experts rather than, perhaps, other  State Parties, in order to gain expertise and information regarding cooperation. The use of civil society organisations by State Parties in drafting implementing legislation will also have positive effects and benefits for the Court’s cooperation activities. As discussed above, while there is a requirement for State Parties to adopt cooperation legislation, there is no corresponding requirement to adopt a particular type of legislation, as long as the ‘result’ of the implementing legislation is full cooperation.138 This has led to different types of legislation being adopted by different State Parties, often depending on the nature of the domestic legal system (common law or civil law), the nature of the application of international law in the domestic system (monism or dualism) and whether or not the State has adopted a more horizontal model of cooperation legislation (based more on inter-State mutual legal assistance) or vertical ‘centralised cooperation’.139 In adopting implementing legislation on cooperation, the adoption of more ‘vertical’ cooperation legislation, which allows for the icc to send cooperation requests directly to the central authorities and prosecuting authorities, will inevitably make cooperation with the icc more efficient for the Court and the State.140 In helping State Parties to draft such legislation, civil society actors undoubtedly make the icc’s cooperation regime more efficient and effective for the Court. Secondly, in assisting State Parties in drafting legislation that incorporates elements of ‘voluntary cooper137 See Price, ‘Review Article: Transnational Civil Society And Advocacy In World Politics’ (2003) supra n 28 at 589; Pedraza-Farina, ‘Conceptions of Civil Society in International Lawmaking and Implementation: A Theoretical Framework’ (2013) supra n 13 at 629: ‘State power is hierarchical and coercive, while communication in civil society is egalitarian and persuasive’. 138 Donat Cattin, ‘Approximation or Harmonisation as a Result of Implementation of the Rome Statute’ (2012) supra n 127 at 377. 139 See Cassese and Gaeta, Cassese’s International Criminal Law: third edition, (Oxford: oup, 2013) 304; Kreβ, Prost, Schlunck and Wilkitzki, ‘International Cooperation and Judicial Assistance: Preliminary Remarks’ (1999) supra n 6; Rastan, ‘The Responsibility to Enforce – Connecting Justice with Unity’, in Stahn and Sluiter (eds), The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff, 2009) 164. 140 See Donat Cattin, ‘Approximation or Harmonisation as a Result of Implementation of the Rome Statute’ (2012) supra n 127 at 384.

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ation’ agreements, civil society can ensure that State Parties consider entering into such crucial agreements with the Court at the same time as adopting implementing legislation on cooperation.141 Further to its ensuring that State Parties adopt ‘best practice’ legislation, civil society organisations, as donors of cooperation legislation, often on regional bases, can ensure that cooperation implementing legislation is ‘harmonised’.142 This also allows the Court to cooperate most efficiently with State Parties in being able to adopt more universal cooperation practices and procedures, which, of course, creates more certainty for the Court in its cooperation activities with State Parties.143 E Domestic Civil Society Work on Arrest Warrants Despite State Parties’ obligations to arrest those on their territory subject to icc arrest warrants, recent practice has shown an unwillingness to do so.144 As discussed above, this unwillingness to arrest may be the result of a lack of political will, incapacity or may be due to recourse to other arguments such as alleged conflicting treaty obligations.145 Civil society organisations, particularly national civil society organisations, have nonetheless found themselves playing a key role in seeking to strengthen the obligation to execute arrests. This has taken the form of international and national civil society organisations providing an ‘early warning’ to the global community of possible travels by icc fugitives prior to the actual travel to the territory of a State Party. This notification of possible travel also serves to put domestic governments on notice that they may be about to infringe their icc Statute obligations146 and to remind national governments of their obligations to arrest icc fugitives. In the event of non-arrest, through highlighting instances of non-cooperation to a global audience, civil society has sought to 141 Interview with Maia Trujillo, Parliamentarians for Global Action, (The Hague, Netherlands, 14 January 2015) notes on file with the author. 142 Donat Cattin, ‘Approximation or Harmonisation as a Result of Implementation of the Rome Statute’ (2012) supra n 127 at 387. 143 Interview with Maia Trujillo, Parliamentarians for Global Action, (2015) supra n 141. 144 See e.g. icc, Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, Pre-Trial Chamber ii, ICC-02/05-01/09 (9 April 2014). 145 Ibid at 19. 146 See e.g. the statement by 89 human rights organisations on 25 February 2014, prior to the travel of Al Bashir to the drc. Réseau pour la Réforme du Secteur de Sécurité et de Justice, ‘Les ong de la rdc demandent au Président Joseph KABILA de faire arrêter M. Omar El- Béchir à Kinshasa’, Réseau pour la Réforme du Secteur de Sécurité et de Justice, 25 February 2014, available at: www.rrssjrdc.org/?p=6338 (last accessed 30 July 2015).

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bring attention to State Parties who flout their icc Statute obligations and to pressure the infringing State(s) to arrest the fugitive in question. On the international plane, the use of the international media and social media, for example, to quickly and loudly highlight the non-cooperation of a State Party has sought to shame States into cooperating and to bring the infringement to the attention of other State Parties, as well as the Court. This attention has also served to isolate icc fugitives and to force them to not return to a country for fear of either being arrested or once again being highlighted as a fugitive of the icc. On a domestic level, civil society organisations have also undertaken protests to mobilise the domestic community. National civil society organisations have been able to galvanise large sections of society to voice their disapproval of their own State’s non-cooperation, which has often resulted in sufficient pressure to force fugitives to flee the State in question. This public mobilisation of political will, coupled with more direct actions, has played a crucial role in strengthening the obligation to arrest under the icc Statute. In light of certain State Parties’ non-arrest of icc fugitives, in particular Sudanese President Omar Al Bashir, a number of civil society organisations have taken direct action to seek the domestication of icc arrest warrants in their respective States. F South Africa In South Africa in 2009, upon hearing of Al Bashir’s invitation to attend South African President Jacob Zuma’s inauguration, the Southern Africa Litigation Centre (salc), Institute for Democracy in South Africa and Open Society Institute made public statements that South Africa had an obligation to arrest Al Bashir if he was to be present on the territory of South Africa. These organisations also ‘took the proactive step of briefing barristers to prepare court application papers in the event that Al Bashir did arrive and the South African government failed to [arrest Al Bashir]’.147 This action may have not only influenced Al Bashir to decide against setting foot on South African territory, but at the time was also thought to have ensured that the South African Government would indeed meet its icc Statute obligation to arrest Al Bashir, as it had clarified such a position.148

147 See Du Plessis, Louw and Maunganidze, ‘African efforts to close the impunity gap: Lessons for complementarity from national and regional actions’ (2012) supra n 123 at 10; The relief sought by the civil society petitioners in the event that the petition would have been made is also detailed here. 148 Ibid.

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However, in June 2015, Al Bashir visited South Africa for an au summit. Prior to his arrival, on 21 May the salc sent letters to South African officials, noting ‘South Africa’s international and domestic obligations to take appropriate actions to execute the warrant for President Bashir’s visit’.149 This was followed by further correspondence with South African Government officials on 13 June, noting Al Bashir’s expected arrival and reminding said officials of the international arrest warrant against Al Bashir.150 When Al Bashir was not arrested, the salc was the sole applicant in a motion to arrest Al Bashir upon his reported arrival in South Africa. In its urgent motion on Sunday 14 June, the salc petitioned the High Court of South Africa to compel the representatives of the Government of South Africa to arrest Al Bashir.151 Following an urgent hearing, the High Court granted an interim order prohibiting Al Bashir from leaving South Africa, ordering the South African Government to take the necessary steps to prevent him from doing so and ordering the Director General of Home Affairs to serve the order on every official in charge of each and every point of entry into, and exit from, South Africa.152 This interim order garnered a huge level of international media attention,153 which undoubtedly also served to heighten the pressure and attention on the South African Government to meet its icc Statute obligations. On Monday 15 June 2015, the High Court in Pretoria handed down an order that the South African Government Respondents should ‘take all reasonable steps to arrest President Al Bashir without a warrant in terms of Section 40(1)(k) of the Criminal Procedure Act, 51 of 1977 and detain him, pending a formal request for his surrender from the International Criminal Court’,154 following 149 High Court of South Africa (North Gauteng High Court, Pretoria), The Southern African Litigation Centre v The Minister of Justice and Constitutional Development et al Supplementary Affidavit (14 June 2015) at para 2. 150 Ibid at para 4. 151 High Court of South Africa (North Gauteng High Court, Pretoria), The Southern African Litigation Centre v The Minister of Justice and Constitutional Development et al Notice of Motion (14 June 2015). 152 High Court of South Africa (North Gauteng High Court, Pretoria), The Southern African Litigation Centre v The Minister of Justice and Constitutional Development et at Interim Order, Case number 27740/15 (14 June 2015). 153 See e.g. Cropley and Brock, ‘South Africa court bars indicted Sudan leader from leaving’ Reuters, 15 June 2015, available at: www.reuters.com/article/2015/06/15/us-africa-summit -bashir-icc-idUSKBN0OU0K420150615 (last accessed 26 August 2015). 154 High Court of South Africa (North Gauteng High Court, Pretoria), The Southern African Litigation Centre v The Minister of Justice and Constitutional Development et al Judgment, Case number 27740/15 (24 June 2015) at para 2.

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the Respondents’ ‘failure to prepare to take steps to arrest and/or detain [Al Bashir]’ which it held was ‘invalid’ and ‘inconsistent with the Constitution of the Republic of South Africa, 1996’.155 However, just as the hearing of 15 June was commencing, in dramatic and surreal circumstances and in full glare of the media, Al Bashir’s jet took off, with Al Bashir on board, from Waterkloof Air Force base – unhindered by the South African authorities. Despite this, the hearing which ultimately handed down the order for Al Bashir’s arrest continued, as the Respondents’ lawyer had stated that Al Bashir was still in the country.156 Despite Al Bashir’s non-arrest, the Judgment of the High Court subsequently firmly outlined South Africa’s obligations under its Constitution, the icc Statute and international law. It also discussed the unavailability of any immunities for Al Bashir under South African law. Perhaps most scathingly, the High Court invited the National Director of Public Prosecutions to consider whether criminal proceedings were appropriate against those persons who had contravened the Court’s order barring Al Bashir’s exit from the country.157 The actions by the ngo SALC – through its urgent and determined litigation – undoubtedly served and sought to force (if not shame) its national government to meet its cooperation obligations towards the icc. Of course, Al Bashir was ultimately able to evade arrest. However, the actions of the salc in seeking the enforcement of the icc arrest warrant also led to Al Bashir very publicly and unceremoniously fleeing South Africa before the end of his summit engagements, due to the threat of impending arrest. Perhaps therefore, the actions of the salc could be seen as not only directly legally forcing a State to meet its cooperation obligations, but also coercing the State to meet its cooperation obligations through the monitoring and highlighting of non-cooperation as well as influencing the international community’s opinion and attention towards States meeting their cooperation obligations. G Kenya In Kenya, on 18 November 2010, following a well-documented visit by President Al Bashir to Kenya on 27 August 2010, without arrest, and in contravention of Kenya’s obligation to arrest Al Bashir, the Kenyan Section of the International 155 Ibid. 156 Ibid at paras 8 and 9. 157 Ibid at paras 37 – 39. See, specifically at para 37.2: ‘A democratic state based on the rule of law cannot exit or function, if the government ignores its constitutional obligations and fails to abide by court orders. A court is the guardian of justice, the cornerstone of a democratic system based on the rule of law. If the State, or an organ of State or State official does not abide by court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues’.

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Commission of Jurists (icj-Kenya) filed a public interest application to the High Court of Kenya. The application petitioned the court to issue an arrest warrant against President Al Bashir following the non-enforcement of the arrest warrant by the Minister of National Security pursuant to Section 29 of the Kenyan International Crimes Act 2008 (ica 2008).158 icj-Kenya’s application was also made in expectation that Al Bashir would again travel to Kenya and that, were Al Bashir to do so, the Kenyan Government would again not uphold its obligation to enforce the arrest warrant against him.159 In his decision, Justice Ombija held that icj-Kenya did indeed have locus standi to bring such an application160 and that although icj-Kenya did not have the capacity to arrest Al Bashir, where the Government failed to request the issuance of an arrest warrant under Sections 29 and 30 ica 2008, icj-Kenya – acting in the public interest – had standing to request a provisional arrest warrant subject to Section 32 ica 2008. The High Court also held that, as icj-Kenya had no capacity to arrest, it could bring an application for the prerogative order of mandamus directed at the Minister in charge of Internal Security to arrest President Al Bashir, should he set foot in Kenya in the future.161

158 Nairobi High Court, Kenya Section of the International Commission of Jurists v Attorney General & Another (2011) Kenyan Law Reports (eKLR), Miscellaneous Criminal Application 685 of 2010. Kenyan Law Reports, 28 November 2011, available at: www.kenyalaw.org/ CaseSearch/view_preview1.php?link=74146956184203788646854 (last accessed 8 March 2015). 159 Ibid at para 9 of application. 160 Ibid: ‘In the disclosed circumstances of this case and having taken into consideration the various approaches taken in other common law jurisdictions to grant parties leave to bring action, I have decided to adopt the open ended approach. In my considered judgment based on the authorities, the ICJ–Kenya Chapter, the Applicant, has the necessary locus–standi to bring this application. In my judgment the matters raised by the Applicant and by extension the orders sought by the Applicant are justiciable. The application is thus tenable in law. The application thus succeeds to that extent’. 161 Ibid: ‘The next pertinent question which this Court ought to grapple or contend with is this: What happens when the warrants are issued and the Minister for Internal Security fails neglects or refuses to execute the same? The answer to that is that any legal personicj Kenya Chapter included- who has the requisite mandate and capacity to enforce and/ or to execute the warrant may be at liberty to do so…In the event, however, the Applicant [ICJ-Kenya Chapter] has no capacity, it will be at liberty, should it deem fit, to bring an application for the prerogative order of mandamus, for an order directed at the Minister in-charge of Internal Security to arrest President Omar Ahmad Hassan Al Bashir [Omar Al Bashir] should he set foot in Kenya in future’.

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H Nigeria In similar circumstances, in Nigeria in July 2013, the Nigerian Coalition for the icc, along with two other ngos, made an application to the Federal High Court on the occasion of a visit by Al Bashir to Abuja, Nigeria. The application was filed on Monday 15 July 2014, despite Al Bashir having already entered and subsequently left Nigeria on 14 July 2014, and despite the applicants’ unsuccessful attempts to request the Attorney General of Nigeria to arrest Al Bashir upon his arrival. Nonetheless, the applicants sought an order compelling the Nigerian President to arrest Al Bashir immediately upon his arrival onto Nigerian territory and an order issuing a provisional arrest warrant against Al-Bashir immediately upon his arrival in Nigeria.162 A second application by the ngo applicants was also filed in December 2013 in which the applicants again sought an order of a provisional arrest warrant against Al Bashir ‘in compliance with Nigeria’s treaty obligations in terms of the Rome Statute’ and an order compelling the President of Nigeria to arrest Bashir ‘anytime he is within Nigeria’s national territory and to surrender him to the icc’.163 The three cases provide examples of the willingness of national ngos to take more direct action and to proactively seek arrest warrants themselves when faced with non-cooperation by their own governments. Clearly in these cases the issue of locus standi of each organisation to bring public interest litigation before national courts was a factor to be considered, as well as the applicants in both cases encountering arguments relating to the conflicting obligations between the au and the icc. However, these cases are illustrative that ngos, in the absence of the direct capacity to enforce icc arrest warrants, are nonetheless able to directly pressure their own governments to meet their obligations and to indirectly pressure an icc fugitive to either leave their State for fear of arrest or to not return to their State, with the knowledge that any return would – at the very least – represent a very real risk of immediate arrest. Whilst the Kenyan case is illustrative of ngos seeking to close the gap between obligation and implementation of arrest in a weaker horizontal cooperation regime and to force a State Party to implement existing domestic legislation, 162 A copy of the petition is available at: Nigerian cicc, ‘ncicc & Others v Federal Republic of Nigeria’, cicc, 2013, available at: www.coalitionfortheicc.org/documents/NCICC_orgs _vs_AG_Federation_on_Al_Bashir.pdf (last accessed 8 March 2015). 163 A copy of the application is not publicly available, but is referenced in Obiagwu, ‘Chasing Bashir And Enforcing International Justice Through Domestic Courts – The Nigerian Experience’ in Southern Africa Litigation Centre (ed), International Criminal Justice Regional Advocacy Conference Report Civil Society In Action: Pursuing Domestic Accountability For International Crimes, (Johannesburg: Southern Africa Litigation Centre, 2014) 18.

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the Nigerian example is perhaps even more significant, as it is an example of civil society not just seeking to strengthen or enforce an existing domestically implemented cooperation obligation but to remedy the absence of any defined domestic icc cooperation legislation through an order by a domestic court. 6 Conclusion Viewed through the lens of its work on cooperation, civil society’s efforts and impact have undoubtedly evolved from seeking, at first, to establish the icc to ensuring that the icc is an effective institution for the future. However, for all the influence of civil society on strengthening cooperation with the icc, the exact nature and level of the successes of civil society are hard to accurately measure. Whilst regular statements are made by State Parties or Court officials164 on the ‘indispensability’ of civil society efforts and, in practical terms, the adoption of implementing legislation can serve as evidence of successful civil society campaigns, the true level of civil society influence on icc cooperation may never be fully known or measured. For example, how can one apportion the success of civil society action, which may have averted an act of non-cooperation that, in fact, never happened? It is also clear that, despite efforts to strengthen the icc’s cooperation regime, instances of non-cooperation with the Court still occur and State Parties to the icc do not meet all of their cooperation obligations. Furthermore, the Court is currently facing situations where the cooperation of some State Parties has not met the full requirements of the icc Statute but not fallen below the level of cooperation which would suffice for a judicial non-cooperation finding under Art. 87(7) icc Statute. In this situation, there may well be a role for the less coercive actions of civil society – such as highlighting non-compliance and urging compliance by a State – which clearly do not have the level of coercive effect of the asp’s non-cooperation procedures or a un sanction – but which may, in fact, more gently coerce a State into meeting their cooperation obligations. Therefore, a 164 See Judge Sang-Hyun Song, President of the icc, ‘Closing remarks at 10th Anniversary of the Court, Ridderzaal (Hall of Knights)’, icc, 14 November 2012, available at: www.icc-cpi .int/en_menus/asp/press%20releases/press%20releases%202012/Pages/pr850.aspx (last accessed 12 March 2015); ‘I would like to express the Court’s enormous appreciation to the civil society. Your tireless efforts are indispensable to the success of the icc and the wider Rome Statute system. You are the Court’s true constituency, representing the world’s population at large’.

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role for civil society in this more novel challenge facing the Court may well be an interesting avenue for State Parties and the Court to pursue. What is clear, however, is that the multifaceted roles played by a diverse civil society engaged on many levels, with many different actors, has become crucial to the strengthening of State Parties’ cooperation with the icc.

List of References



Books and Journals

Anheier, Glasius and Kaldor, ‘Introducing global civil society’ in Anheier, Glasius and Kaldor (eds), The Global Civil Society Yearbook (Oxford: OUP, 2001) 3. Bekou, ‘Regionalising ICC Implementing Legislation: A Viable Solution for the AsiaPacific Region?’ in Boister and Costi (eds), Droit Pénal International dans le Pacifique: Tentatives d’Harmonisation Régionale/Regionalising International Criminal Law in the Pacific (Christchurch: New Zealand Association for Comparative Law and Association de Législation Comparée des Pays du Pacifique, 2006) 117. Bellelli, ‘Obligation to Cooperate and Duty to Implement’ in Bellelli (ed), International Criminal Justice: Law and Practice from the Rome Statute to Its Review (Farnham: Ashgate, 2010) 211. Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 European Journal of International Law 144. Cassese and Gaeta, Cassese’s International Criminal Law: third edition, (Oxford: OUP, 2013) 304. Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100 American Journal of International Law 348. Dicklitch, ‘Action for Development in Uganda’ in Welch (ed), NGOs and Human Rights: Promise and Performance (Philadelphia: University of Pennsylvania Press, 2001). Donat Cattin, ‘Approximation or Harmonisation as a Result of Implementation of the Rome Statute’ in Stahn and Van den Herik (eds), The Diversification and Fragmentation of International Criminal Law (Leiden: Martinus Nijhoff, 2012) 361. Du Plessis, Louw and Maunganidze, ‘African efforts to close the impunity gap: Lessons for complementarity from national and regional actions’ (2012) Paper 241, Pretoria: Institute for Security Studies 1. Evans, ‘Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All’ (2009) 20 Irish Studies in International Affairs 7. Glasius, ‘Expertise in the Cause of Justice: Global Civil Society Influence on the Statute for an International Criminal Court’ in Anheier, Glasius and Kaldor (eds), The Global Civil Society Yearbook (Oxford: OUP, 2002) 137.

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Glasius, The International Criminal Court: A Global Civil Society Achievement (Oxford: Routledge, 2006). Keane, ‘Global Civil Society?’ (Cambridge: Cambridge University Press, 2003). Kreβ, Prost, Schlunck and Wilkitzki, ‘International Cooperation and Judicial Assistance: Preliminary Remarks’ in Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos, 1999) 1045. Martens, ‘Examining the (Non-) Status of NGOs in International Law’ (2003) 10 Indiana Journal of Global Legal Studies 1. Murithi, ‘The African Union and the International Criminal Court: An Embattled Relationship?’ (2013) 8 The Institute for Justice and Reconciliation: Policy Brief, 1. O’Donohue, ‘The ICC and the ASP’ in Stahn (ed), The Law and Practice of the International Criminal Court (Oxford: OUP, 2015) 107. Obiagwu, ‘Chasing Bashir And Enforcing International Justice Through Domestic Courts – The Nigerian Experience’ in Southern Africa Litigation Centre (ed), International Criminal Justice Regional Advocacy Conference Report Civil Society In Action: Pursuing Domestic Accountability For International Crimes, (Johannesburg: Southern Africa Litigation Centre, 2014) 18. Pace and Schense, ‘International Lawmaking of Historic Proportions: civil society and the International Criminal Court’ in Gready (ed), Fighting for Human Rights, (New York, Routledge, 2004) 104. Pedraza-Farina, ‘Conceptions of Civil Society in International Lawmaking and Implementation: A Theoretical Framework’ (2013) 34 Michigan Journal of International Law 605. Price, ‘Review Article: Transnational Civil Society And Advocacy In World Politics’ (2003) 55 World Politics 579. Rastan, ‘Testing Cooperation: The International Criminal Court and National Authorities’ (2008) 21 Leiden Journal of International Law 431. Rastan, ‘The Responsibility to Enforce – Connecting Justice with Unity’, in Stahn and Sluiter (eds), The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff, 2009) 164. Reuter, Wijkström and Meyer, ‘Who Calls the Shots? The Real Normative Power of Civil Society’ in Freise and Hallmann (eds), Modernizing Democracy Associations and Associating in the 21st Century (New York: Springer, 2014) 71. Tornquist-Chesnier, ‘NGOs and International Law’ (2004) 3 Journal of Human Rights 253. Tornquist-Chesnier, ‘How the International Criminal Court Came to Life: The Role of Non-governmental Organisations’ (2007) 21 Global Society 449 at 457. Woocher, ‘Deconstructing “Political Will”: Explaining the Failure to Prevent Deadly Conflict and Mass Atrocities’ (2001) 12 Princeton Journal of Public and International Affairs 179.

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ASP, Recognition of the coordinating and facilitating role of the NGO Coalition for the International Criminal Court, 11 September 2003, ICC-ASP/2/Res.8. ASP, Report of the Bureau on Cooperation, 19 October 2007, ICC-ASP/6/21. ASP, Cooperation, 26 November 2009, ICC-ASP/8/Res.2. ASP, Report of the Bureau on the Plan of action for achieving universality and full implementation of the Rome Statute of the International Criminal Court, 28 October 2010, ICC-ASP/9/21. ASP, Strengthening the International Criminal Court and the Assembly of States Parties, 10 December 2010, ICC-ASP/9/Res.3. ASP, Cooperation, 20 December 2011, ICC-ASP/10/Res.2. ASP, Strengthening the International Criminal Court and the Assembly of States Parties, 21 December 2011, ICC-ASP/10/Res.5, Annex: Assembly procedures relating to non-cooperation.

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CICC Cooperation Team, ‘Comments and Recommendations to the Tenth Session of the Assembly of States Parties’, CICC, 2 December 2011, available at: www.coalitionfortheicc.org/?mod=asp10&idudctp=21&show=all#21 (last accessed 27 July 2015). CICC Cooperation Team, ‘Comments and Recommendations to the Twelfth Session of the Assembly of States Parties’, CICC, 6 November 2013, available at: www.iccnow .org/documents/Cooperation_Team_Submission_ASP12_6NOV13.pdf (last accessed 4 March 2015). CICC NGO Team, ‘Cooperation Agreements and Enforcement’, CICC, available at: www.iccnow.org/?mod=agreements (last accessed 4 March 2015). CICC Press Release, ‘ASP 13: For a Stronger ICC, Enhance State Cooperation’, CICC, 5 December 2014, available at: www.iccnow.org/?mod=ciccmedia&idudctp=20&sho w=all#20 (last accessed 24 August 2015). Council of the EU COJUR, ‘The EU’s response to non-cooperation with the International Criminal Court by third states’, EU, 27 November 2013, available at: www.eeas.europa. eu/human_rights/icc/docs/st_16993_2013_init_en.pdf, (last accessed 6 March 2015). Cropley and Brock, ‘South Africa court bars indicted Sudan leader from leaving’ Reuters, 15 June 2015, available at: www.reuters.com/article/2015/06/15/us-africa -summit-bashir-icc-idUSKBN0OU0K420150615 (last accessed 26 August 2015). General Secretariat of the Council, ‘The European Union and the International Criminal Court’, EU, November 2007, available at: www.ec.europa.eu/external _relations/human_rights/icc/index_en.htm (last accessed 28 July 2015). HRW, ‘Human Rights Watch Memorandum for the Thirteenth Session of the International Criminal Court Assembly of States Parties’, HRW, 25 November 2014, available at: www . h r w. o r g / n e w s / 2 0 1 4 / 1 1 / 2 5 / h u m a n - r i g h t s - w a t c h - m e m o r a n d u m -thirteenth-session-international-criminal-court-assemb (last accessed 4 March 2015). HRW, ‘Letter to Foreign Ministers on Support for the ICC in Advance of Extraordinary AU Summit’, HRW, 10 October 2013, available at: www.hrw.org/news/2013/10/04/ letter-foreign-ministers-support-icc-advance-extraordinary-au-summit (last accessed 6 March 2015). HRW, ‘Letter to High Representative Catherine Ashton on Deployment of EU Election Observation Mission in Sudan’, HRW, 29 March 2010, available at: www.hrw.org/ news/2010/03/25/letter-high-representative-catherine-ashton-deployment-eu -election-observation-missi (last accessed 6 March 2015). HRW, ‘Making the International Criminal Court Work: A Handbook for Implementing the Rome Statute’, CICC, September 2001, available at: www.coalitionfortheicc.org/? mod=browserdoc&type=21&year=2001 (last accessed 29 July 2015). HRW, ‘The Status of ICC Implementing Legislation: States Parties need to expedite enactment of implementing legislation’, CICC, February 2003, available at: www .coalitionfortheicc.org/?mod=browserdoc&type=21&year=2003&b=2 (last accessed 29 July 2015).

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ICC, ‘The State Parties to the Rome Statute’, ICC, available at: www.icc-cpi.int/en _menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20 rome%20statute.aspx (last accessed 28 July 2015). ICC, ‘National Implementing Legislation Database’, ICC, available at: www.legal-tools .org/en/go-to-database/national-implementing-legislation-database/ (last accessed 17 August 2015). International Bar Association, ‘COJUR-ICC address’, International Bar Association, 25 September 2013, available at: www.ibanet.org/ICC_ICL_Programme/Programme_ commentaries.aspx (last accessed 6 March 2015). International Bar Association, ‘International Criminal Law Manual’, International Bar Association, available at: www.ibanet.org/Article/Detail.aspx?ArticleUid=aad84f6f8058-4a1f-91ce-be0eba974d3e (last accessed 8 March 2015). International Bar Association, ‘COJUR-ICC address’, International Bar Association, 4 June 2013, available at: www.ibanet.org/ICC_ICL_Programme/Programme _commentaries.aspx (last accessed 25 August 2015). Joint Press Release of International Federation for Human Rights (FIDH), Chadian League for Human Rights (LTDH) and Chadian Association for the Promotion and Defence of Human Rights (ATPDH), ‘Chad Must Arrest Omar Al-Bashir!’, FIDH, 22 July 2010, available at: www.fidh.org/Chad-must-arrest-Omar-Al-Bashir (last accessed 4 March 2015). Judge Sang-Hyun Song, President of the ICC, ‘Closing remarks at 10th Anniversary of the Court, Ridderzaal (Hall of Knights)’, ICC, 14 November 2012, available at: www .icc-cpi.int/en_menus/asp/press%20releases/press%20releases%202012/Pages/ pr850.aspx (last accessed 12 March 2015). Kelebone A. Maope, ‘Statement By H.E. Mr Kelebone A. Maope Ambassador And Permanent Representative Of Lesotho To The United Nations On Behalf Of African State Parties To The Rome Statute At The Thirteenth Session Of The Assembly Of States Parties To Rome Statute Of The International Criminal Court’, ICC, 8 December 2014, available at: www.icc-cpi.int/en_menus/asp/sessions/general%20 debate/Pages/GeneralDebate_13th_session.aspx (last accessed 29 July 2015). Kenyans for Peace with Truth and Justice, ‘Statement Delivered During the Cooperation Session at the 13th Assembly of State Parties’, Scribd, 11 December 2014, available at: www.scribd.com/doc/249901929/KPTJ-Statement-Delivered-During-theCooperation-Session-at-the-13th-Assembly-of-State-Parties#scribd (last accessed 4 March 2015). Nairobi High Court, Kenya Section of the International Commission of Jurists v Attorney General & Another (2011) Kenyan Law Reports (eKLR), Miscellaneous Criminal Application 685 of 2010. Kenyan Law Reports, 28 November 2011, available at: www .kenyalaw.org/CaseSearch/view_preview1.php?link=74146956184203788646854 (last accessed 8 March 2015).

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Nigerian CICC, ‘NCICC & Others v Federal Republic of Nigeria’, CICC, 2013, available at: www.coalitionfortheicc.org/documents/NCICC_orgs_vs_AG_Federation_on_Al _Bashir.pdf (last accessed 8 March 2015). Nigerian CICC, ‘About NCICC’, NCICC, 18 October 2010, available at: www.ncicc.org.ng/ index.php/about-ncicc (last accessed 24 July 2015). No Peace Without Justice, ‘ICC: NPWJ welcomes Czech Republic’s adoption of Rome Statute implementing legislation’, No Peace Without Justice, 7 January 2014, available at: www.npwj.org/ICC/ICC-NPWJ-welcomes-Czech-Republic%E2%80%99s-adoption -Rome-Statute-implementing-legislation.html (last accessed 4 March 2015). No Peace Without Justice, ‘African Union: ICC non-cooperation drive thwarted, but African States should do more to uphold the rights of African victims’, No Peace Without Justice, 12 October 2013, available at: www.npwj.org/ICC/AU-and-ICC -African-States-should-uphold-rights-African-victims.html-0 (last accessed 8 March 2015). Organisation of American States, ‘Report on Perspectives for a Model Law on State Cooperation with the International Criminal Court (presented by Dr Mauricio Herdocia Sacasa)’, Organisation of American States, 7 March 2008, available at: www .oas.org/en/sla/dil/international_criminal_court_legal_instruments.asp (last accessed 24 August 2015). Pan African Lawyers Union, ‘Memorandum of Understanding Establishing the Framework for Cooperation and Collaboration between the African Union and The Pan African Lawyers Union’, Pan African Lawyers Union, 5 May 2006, available at: www.lawyersofafrica.org/documents (last accessed 8 March 2015). Pan African Lawyers Union, ‘Promoting Accountability for International Crimes in Africa’, Pan African Lawyers Union, 12 October 2013, available at: www.lawyersofafrica .org/archives/1435 (last accessed 8 March 2015). Pan African Lawyers Union, ‘What PALU Does’ Pan African Lawyers Union, available at: www.lawyersofafrica.org/what-palu-does, (last accessed 8 March 2015). Parliamentarians for Global Action, ‘Press Release: PGA Members Present Strategy for Cooperation between the Mercosur Parliament and the International Criminal Court’, PGA, 12 May 2014, available at: www.pgaction.org/news/press-releases /pga-members-present-strategy-for-cooperation-between-the-mercosur-parliament -and-the-international-criminal-court.html (last accessed 6 March 2015). Parliamentarians for Global Action, ‘Rome Plan Of Action On The Prevention Of Atrocities, The Rule Of Law And The International Criminal Court’, PGA, 11 December 2012, available at: www.pgaction.org/news/2012/cap-icc-vii.html (last accessed 24 July 2015). Parliamentarians for Global Action, ‘Implementing Legislation on the Rome Statute’, PGA, available at: www.pgaction.org/programmes/ilhr/icc-legislation.html (last accessed 29 July 2015).

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Permanent Council of The Organization of American States, Committee on Juridical and Political Affairs, ‘Report of The Working Meeting on The International Criminal Court’, The Organization of American States, 6 August 2013, OEA/Ser.G, CP/CAJP -3106/12 rev.4.Add.6, available at: www.oas.org/en/sla/dil/docs/CP-CAJP_3106-12 _rev4_add6_ENG.pdf (last accessed 6 March 2015). Permanent Council of the Organization of American States, Committee on Juridical and Political Affairs, ‘Presentaciones’, Organization of American States, 6 August 2013, OEA/Ser.G CP/CAJP-3106/12 rev. 4 add. 5, available at: www.oas.org/es/sla/ddi/ docs/CP-CAJP_3106-12_rev4_add5.pdf (last accessed 6 March 2015). REDRESS et al, ‘Letter to Members of the EU Genocide Network on Strengthening Efforts to Combat Impunity for Grave International Crimes within EU Member States’, HRW, 29 October 2013, available at: www.hrw.org/news/2013/10/29/lettermembers-eu-genocide-network-strengthening-efforts-combat-impunity-grave (last 28 July 2015). REDRESS, FIDH, CICC, ‘EU Network of contact point – Joint Letter to Vice President and EU Justice Commissioner Reding’, CICC, 27 April 2011, available at: www .coalitionfortheicc.org/?mod=eu&idudctp=21&order=titleasc&show=all#21 (last accessed 28 July 2015). Réseau pour la Réforme du Secteur de Sécurité et de Justice, ‘Les ONG de la RDC demandent au Président Joseph KABILA de faire arrêter M. Omar El- Béchir à Kinshasa’, Réseau pour la Réforme du Secteur de Sécurité et de Justice, 25 February 2014, available at: www.rrssjrdc.org/?p=6338 (last accessed 30 July 2015). The Budget and Finance Team of the CICC, ‘Statement on the Report of the Committee on Budget and Finance: Recommendations to the Fifth Session of the Assembly of States Parties from 23 to 25 November and 27 November to 1 December 2006’, CICC, 17 November 2006, available at: www.coalitionfortheicc.org/?mod=budget&idudct p=21&order=authordesc (last accessed 27 July 2015). The International Centre for Criminal Law Reform and Criminal Justice Policy, ‘International Criminal Court Manual for the Ratification and Implementation of the Rome Statute Third Edition’, CICC, March 2008, available at: www.coalitionfortheicc .org/?mod=romeratification&idudctp=21&show=all (last accessed 29 July 2015). The Kenyans for Peace with Truth and Justice (KPTJ), ‘Statement by the Kenyans for Peace with Truth and Justice (KPTJ) made at the 13th Session of the Assembly of State Parties to the Rome Statute During the General Debate’, ICC, 12 December 2014, available at: www.icc-cpi.int/en_menus/asp/sessions/general%20debate/ Pages/GeneralDebate_13th_session.aspx (last accessed 27 July 2015). Ugandan CICC, Human Rights Network Uganda and Avocats Sans Frontieres, ‘Eleven Years since the Creation of the International Criminal Court: Calling on the AU to support the work of the ICC’, CICC, 17 July 2013, available at: www.coalitionfortheicc .org/?mod=browserdoc&type=21&year=2013&b=8 (last accessed 29 July 2015).

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University of Nottingham Human Rights Law Centre, ‘Training Course on Ratification and Implementation of the Rome Statute of the International Criminal Court (ICC) for the Asia-Pacific Region’, HRLC, September 2005, available at: www.nottingham .ac.uk/hrlc/projects/projects2005.aspx (last accessed 28 July 2015). University of Nottingham Human Rights Law Centre, ‘Training and Capacity Building on Ratification and Implementation of the Rome Statute of the International Criminal Court (ICC) for the CARICOM Region’, HRLC, March 2009, available at: www.nottingham.ac.uk/hrlc/projects/projects2009.aspx (last accessed 29 July 2015). Various NGOs, ‘NGO Letters, Papers, Reports and Statements’, CICC, 2014, available at: www.iccnow.org/?mod=asp13&idudctp=21&show=all#21 (last accessed 7 September 2015).

Using ‘Managerial Compliance’ to Strengthen the International Criminal Court Cooperation Regime Emilie Hunter 1 Introduction Practitioners, ngos, academics and diplomats have identified a diverse variety of challenges that restrict full and effective participation in the cooperation regime of the icc.1 They include the formal challenges of States adopting adequate legal provisions to enable cooperation to take place, but more frequently, of behavioural challenges, where States and other entities engaged in cooperation practices struggle, refuse or ignore the requests for cooperation and judicial assistance. Each of these challenges contributes to the weakening of the icc and frustrates, restricts and even prevents the Court from executing its mandate. Solutions have also been proposed with the purpose of strengthening the icc in this vital area of its mandate.2 These efforts are largely responsive, addressing specific challenges as they arise, and yet the process of addressing States’ adherence to the cooperation regime is a clear example of managerial compliance. As a counterpart to coercive mechanisms such as sanctions and monitoring, managerial compliance seeks to encourage compliance with the law, norm or standard, either in advance of its execution, or as it is being ignored or overlooked.3 It does so through constructive measures such as rule interpretation, capacity building and transparency activities, where the treaty body diversifies its role as an enforcer to one of an expert or manager.4 Given the legal framework of the cooperation regime, and its notable lack of enforcement mechanisms, managerial compliance can be considered a central yet overlooked asset of the Court’s cooperation practice.5 1 See University of Nottingham Human Rights Law Centre (hrlc), ‘Expert Workshop on Cooperation and the International Criminal Court: Report’, hrlc, 18–19 September 2014, available at: www.nottingham.ac.uk/hrlc/newsholding/news-2015/cooperation-workshopreport-published.aspx (last accessed 14 August 2015). 2 Ibid. 3 Chayes and Handler Chayes, ‘A Theory of Compliance’ in Chayes and Handler Chayes, The New Sovereignty: Compliance with International Regulatory Regimes: vol 47, (Cambridge: Harvard University Press, 1995). 4 Tallberg, ‘Paths to Compliance: Enforcement, Management, and the European Union’ (2002) 56 International Organization 609 at 609–612. 5 In contrast, compliance analysis has informed, however vaguely, literature on the complementarity principle and positive complementarity, as well as the completion strategy activities of the ad hoc Tribunals. Jan Kleffner has recognised that the Complementarity regime contained © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_015

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This chapter introduces managerial compliance as a framework that can help to structure responses to the challenges facing rule adherence within the cooperation regime. It does so by first outlining the two core compliance theories (Section 1), then it summarises the cooperation regime in terms of the formal and behavioural actions it requires actors to undertake, including the consequences for failure or rejection to comply (Section 2). It then turns to the managerial solutions or actions to strengthen compliance (Section 3) and its assumptions and limitations (Section 4). 2

Coercive and Managerial Compliance Mechanisms

Compliance theories have been applied to several fields of international law6  as a mechanism to measure State adherence to international treaties,7 elements of managerial compliance, notwithstanding the absence of clear positive obligations under Art. 17 icc Statute in Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford: oup, 2008) 311–312; Burke-White, ‘Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice’ (2008) 49 Harvard International Law Journal 53; Hunter, ‘Establishing the Legal Basis for Capacity Building under the icc Statute’ in Bergsmo (ed), Active Complementarity: Legal Information Transfer (Oslo: Torkel Opsahl Academic EPublisher, 2011) 67; Burchard, ‘Complementarity as Global Governance’ in Stahn and El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: cup, 2011) 167; Howse and Teitel, ‘Beyond Compliance: Rethinking Why International Law Really Matters’ (2010) 1 Global Policy Journal 127. For the Adhoc tribunals, see Scharf, ‘The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal’ (2000) 49 De Paul Law Review 925; Tolbert and Kontic, ‘The International Criminal Tribunal for the Former Yugoslavia: Transitional Justice, the Transfer of Cases to National Courts and Lessons for the icc’, in Stahn and Sluiter (eds), The Emerging Practice of the International Criminal Court, vol 48 (Leiden: Martinus Nijhoff, 2009) 135; Chehtman and Mackenzie, Capacity Development in International Criminal Justice: A Mapping Exercise of Existing Practice (Reykjavik: DOMAC/2, 2009). 6 Montoya, ‘The European Union, Capacity Building, and Transnational Networks: Combating Violence Against Women Through the Daphne Program’ (2008) 62 International Organization 359; Tallberg, ‘Paths to Compliance: Enforcement, Management, and the European Union’ (2002) supra n 4 at 609–612; Ngangjoh-Hodu, Theories and Practices of Compliance with wto Law (Frederick: Aspen Publishers, 2012); Cardenas, Conflict and Compliance: State Responses to International Human Rights Pressure (Philadelphia: University of Pennsylvania Press, 2007); Simmons, ‘From Ratification to Compliance: Quantitative Evidence on the Spiral Model’ in Risse, Ropp and Sikkink (eds), The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge: cup, 2013) 43. 7 Simmons, ‘From Ratification to Compliance: Quantitative Evidence on the Spiral Model’ (2013) supra n 6; Simmons, ‘Treaty Compliance and Violation’ (2010) 13 Annual Review of Political Science 273.

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to  determine the effects of international law,8 to enable rule adherence by States,9 as well as to explain why States comply with international law.10 It has been argued that without a theory of compliance, one cannot consider how to improve ‘the functioning of the international legal system, or develop a workable theory of international legal and regulatory cooperation’.11 Compliance mechanisms have typically been divided into two boxes:12 the more traditional box contains punitive or coercive mechanisms, which aim to punish or shame the State into compliance, following a breach of its duties or obligations. The coercive toolkit enables the application of sanctions regimes, formal determinations of non-compliance, suspension of treaty membership and the application of non-essential contact. They are usually operated according to precise legal rules and form the subject matter of considerable legal debate.13 In contrast, the managerial box contains mechanisms that intend to prevent non-compliance or encourage compliance, before a breach is realised.14 It does so by attempting to address the legitimate challenges that States may face in adhering to the regime, through mechanisms such as rule interpretation, capacity building, support mechanisms such as professional networks and transparency actions.15 In contrast to coercive practices, these mechanisms are infrequently legislated16 and more commonly fall under softer, policy initiatives.

8 Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York: W.W. Norton & Co, 2011). 9 Chayes and Handler Chayes, ‘A Theory of Compliance’ (1995) supra n 3. 10 Two contradictory justifications were made around the adoption of the icc Statute; Posner and Yoo, ‘Judicial Independence in International Tribunals’ (2005) 93 California Law Review 1; Helfer and Slaughter, ‘Why States Create International Tribunals: A Response to Professors Posner and Yoo’ (2005) 93 California Law Review 899; Posner and Yoo, ‘Reply to Helfer and Slaughter’ (2005) 93 California Law Review 957. 11 Guzman, ‘A Compliance-Based Theory of International Law’ (2002) 90 California Law Review 1823 at 1826. 12 Chayes and Handler Chayes, ‘A Theory of Compliance’ (1995) supra n 3; Haas, ‘Choosing to Comply: Theorizing from International Relations and Comparative Politics’ in Shelton (ed), Commitment and Compliance: the role of non-binding norms in the international legal system (Oxford: oup, 2000) 56. 13 Gowland-Debbas, ‘Sanctions Regimes under Article 41 of the un Charter’ in GowlandDebbas (ed), National Implementation of United Nations Sanctions (Leiden: Martinus Nijhoff, 2004). 14 Montoya, ‘The European Union, Capacity Building, and Transnational Networks: Combating Violence Against Women Through the Daphne Program’ (2008) supra n 6. 15 Chayes and Handler Chayes ‘A Theory of Compliance’ (1995) supra n 3. 16 See e.g. the Montreal Protocol and the Framework Convention on Climate Change.

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It is perhaps more realistic to understand these mechanisms as part of a temporal continuum rather than in two separate spectra. Moreover, while the two models may reflect different visions of how international law should work, what incentivises adherence to international systems and, consequently, the choices of policy tools that should be adopted,17 both strategies provide credible and necessary tools that can be applicable to different compliance problems and the dynamics which underpin them and do not need to operate in exclusivity. Indeed, mixed models are used with increasing frequency, including traditional ‘enforcement-orientated’ areas like counter-terrorism,18 where the unsc Counter-Terrorism Committee has adopted managerial compliance strategies.19 Notwithstanding the different mechanisms of compliance, this chapter is largely concerned with enabling improvements in the attempts and adherence to requests for cooperation and judicial assistance, while minimising the rejection of such requests. As such, and given the active requirements of the cooperation regime, it is also concerned with the effect of the icc Statute provisions on cooperation on the actions of the requested party. 3

Effects of the Cooperation Regime: Formal, Behavioural Actions, Attempts and Rejections

The effects of compliance have broadly been understood as formal, where States undertake legislative reform to bring national laws into line with the international treaty they have acceded to, and as behavioural, where the various instruments of the State are required to execute the subject matter of the treaty or the national law that implements it.20 Engagement with formal and behavioural actions may be fully executed, or it may be attempted or rejected: compliance activities target the attempts and rejections. 17

18 19

20

Raustiala and Slaughter, ‘International Law, International Relations and Compliance’ in Carlnaes, Risse and Simmons (eds), Handbook of International Relations (London: Sage, 2002) 538. See the capacity building work of the unsc Counter Terrorism Committee, in addition to the Sanctions Committees. Rosand, ‘Resolution 1373 and the Counter Terrorism Committee: The Security Council’s Capacity Building’ in Nesi (ed), International Cooperation in Counter-Terrorism: The United Nations and Regional Organizations in the Fight Against Terrorism (Hampshire: Ashgate, 2006). Kent Weaver, ‘Compliance Regimes and Barriers to Behavioral Change’ (2014) 27 Governance 243; Edwards, ‘Law and the parameters of acceptable deviance’ (2006) 97 Journal of Criminal Law and Criminology 49.

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A Formal Effects of the Cooperation Regime The icc Statute places an obligation to cooperate on its State Parties,21 and clearly requires them to take necessary formal measures to ensure that its institutions can comply with requests of the Court for cooperation and judicial assistance: ‘States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part’.22 Despite this formal requirement, it is estimated that fewer than 60 of the current 124 State Parties have done so.23 This can be expected to frustrate or delay the delivery of cooperation and judicial assistance requests in many of these State Parties, as national laws must be scrutinised for procedural coherence with the icc Statute, and inconsistencies overcome through consultations and dialogue. Indeed, calls to strengthen national legislation have been made by practitioners24 as well as the asp in its annual Resolutions on Cooperation.25 Moreover, the obligation to cooperate is restricted only to State Parties.26 In the absence of binding obligations, non-State Parties, international organisations and private institutions, such as banks, can enter into voluntary agreements with the Court, but the requests do not have a binding effect on such entities.27 21 22 23

Art. 86 icc Statute. Art. 88 icc Statute. Estimate provided through the National Implementing Legislation Database. icc, ‘National Implementing Legislation Database’, icc, available at: www.legal-tools.org/en/ go-to-database/national-implementing-legislation-database/(last accessed 6 August 2015). 24 University of Nottingham Human Rights Law Centre, ‘Report: Expert Workshop on Cooperation and the International Criminal Court’ (2014) supra n 1 at 14. 25 ‘Recalls that the ratification of the Rome Statute must be matched by national implementation of the obligations emanating therefrom, in particular through implementing legislation and, in this regard, urges States Parties to the Rome Statute that have not yet done so to adopt such legislative and other measures so as to ensure that they can fully meet their obligations under the Rome Statute;’ See asp, Resolution on Cooperation, 17 December 2014, ASP/13/Res.3 at para 13; asp, Cooperation, 27 November 2013, ASP/12/ Res.3 at para 15; asp, Cooperation, 21 November 2012, ASP/11/Res.5 at para 13. 26 Kress and Prost, ‘Article 86: General Obligation to Cooperate’ in Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court : observers’ notes, article by article (Baden-Baden: Nomos, 1999) 1514. 27 University of Nottingham Human Rights Law Centre, ‘Report: Expert Workshop on Coopera­ tion and the International Criminal Court’ (2014) supra n 1 at 4–5. See Relationship Agreement Between the International Criminal Court and the United Nations at Art. 2 and also Arts. 87(5) and 87(6) ICC Statute, which allow voluntary agreements with non-State Parties and international organisations; Arts. 15(2) and 53(3)(c) ICC Statute allow the otp to enter into agreements or ‘arrangements’ with financial or private institutions for the purpose of investigations and prosecutions.

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An exception to this may occur in unsc referrals,28 where the unsc can extend the obligation to cooperate to all un Member States, through its powers under Chapter 7 un Charter.29 However, its referrals to date have restricted the obligation to cooperate with the Court to the States under referral (Sudan and Libya). The consequences of this bifurcation are felt where States reject or fail to comply with requests, through the choice of coercive-type measures available to the Court (see Section 2.C). B Behavioural Effects of the Cooperation Regime Part ix icc Statute requires more than formal action by those under its powers. It requires State Parties, those that enter into agreements with the Court and those instructed to cooperate under unsc referrals, to undertake behavioural actions, upon its request. It sets out a system of rules that instructs or requests States, international organisations or other parties to conduct essential functions of the Court’s criminal proceedings, including: arrest; surrender or provisional arrest of suspects;30 identification and whereabouts of persons or location of items;31 taking evidence and testimony under oath; gathering evidence and securing expert opinions and reports;32 questioning persons under investigation or prosecution;33 servicing documents, including judicial documents;34 facilitating voluntary appearance of witnesses or experts before the Court;35 temporary transfer of persons to the Court;36 execution of searches and seizures;37 provision of records and documents including official

28 29

30 31 32 33 34 35 36 37

Art. 13(b) icc Statute. Its referrals of Darfur and Libya restricted the obligation to cooperate to State Parties and the States of referral, given that neither Sudan nor Libya were members of the icc at the time of referral. E.g. unsc Res 1970, 26 February 2011, S/Res/1970 (2011) at para 5; ‘Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor’. See also Kress and Prost, ‘Article 87: Requests for Cooperation: General Provisions’ (1999) supra n 26 at 1524. Art. 89–92 icc Statute. Art. 93(1)(a) icc Statute. Art. 93(1)(b) icc Statute. Art. 93(1)(c) icc Statute. Art. 93(1)(d) icc Statute. Art. 93(1)(e) icc Statute. Art. 93(1)(g) icc Statute. Art. 93(1)(h) icc Statute.

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records and documents;38 protection of victims and witnesses and the preservation of evidence;39 identification, tracing, freezing, seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture40 and any other type of assistance not prohibited by laws of the requested State.41 These forms of cooperation require positive actions by those who are requested to execute them, and can be intensive, extensive and multifaceted. The delivery of the different forms of cooperation has been recounted as entailing ‘logistical support, access to information and expertise not available [to the otp], judicial cooperation, operational support, assistance with security, access to places, sites and evidence’.42 Within any State infrastructure, this can involve a large number of institutions, including police, armed forces, victims and witness protection programs, judiciary, prosecution and legislature, all of whom may have differing levels of skills, enthusiasm or commitment to cooperate as well as available resources. The requests are also accompanied by differing rule constraints, which can include measures that slow down, pause or halt the execution of the obligation created by the rule, causing compliance gaps or ‘hiccups’. These include national security interests;43 confidentiality of the request, of the materials provided, including third party materials;44 competing requests;45 special conditions;46 challenges of admissibility47 or ne bis in idem;48 lack of consent or agreement for the transfer of persons;49 postponement of requests due to an

38 39 40 41 42 43 44 45

46 47 48 49

Art. 93(1)(i) icc Statute. Art. 93(1)(j) icc Statute. Art. 93(1)(k) icc Statute. Art. 93(1)(l) icc Statute. University of Nottingham Human Rights Law Centre, ‘Report: Expert Workshop on Cooperation and the International Criminal Court’ (2014) supra n 1 at 18. Art. 93(4) icc Statute; Art. 72 and Art. 57(2)(a) icc Statute establishes the procedure for addressing denials of request on grounds of national security: Ibid. Art. 93(8) icc Statute. Competing requests under Art. 90 icc Statute can slow down cooperation procedures, and is in turn regulated by the status of the requested actor as well as the status of the request. Art. 93(5) icc Statute. Art. 19 icc Statute. Art. 89(2) icc Statute. Transfer of person (Art. 93(1)(f) icc Statute) where person does not freely give informed consent to transfer (Art. 93(7)(a)(i) icc Statute) or requested state does not agree.

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on-going investigation or prosecution of a different case50 and incompatibility of the request with established rules of the requested entity.51 Only two statutory provisions – consultations52 and financial reimbursement53 – provide incentives for State compliance, providing avenues to resolve possible rejection or failure to execute requests. The consultative process is intended to resolve problems that impede or prevent the request from being executed, foreseeing three indicative circumstances: insufficient information, the suspected person(s) cannot be located or the request would breach pre-existing treaty obligations. The second incentive aims to remove the financial burden of the request from the State, by assuming the costs of travel, security of witnesses or experts, transfer of witnesses and experts, translation, interpretation and transcription, expert opinion or reports, as well as extraordinary costs that are approved of following consultation. The limited effect of consultation mechanisms with recalcitrant States such as Sudan54 has been recognised, alongside a general acknowledgment that the mechanism itself can be strengthened55 in order to improve the cooperation practices of the Court. Formal Measures for Rejection or Refusal to Comply with Cooperation Requests Finally, the Court can issue findings of non-cooperation in circumstances where requests to cooperate are not fulfilled. As a consequence of a failure to cooperate, such findings, which are issued by the Chambers of the Court, can be considered as a coercive compliance mechanism. However, non-­cooperation mechanisms are restricted according to the status of the requested entity, where ‘the distinction between cooperation on a binding or non-binding basis is crucial’.56 The icc can only subject State Parties to judicial findings of noncooperation. Where the failure to cooperate occurs by non-State Parties, the C

50 51

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Art 94 icc Statute. For example if a request is contrary to the rules of an international organization (Art. 87(6) icc Statute). However, this is not applicable to State Parties, who are obliged to ensure that their domestic legislation enables cooperation requests, under the general obligation to cooperate. Art. 97 icc Statute. Art. 100 icc Statute. University of Nottingham Human Rights Law Centre, ‘Report: Expert Workshop on Cooperation and the International Criminal Court’ (2014) supra n 1 at 15–16. University of Nottingham Human Rights Law Centre, ‘Report: Expert Workshop on Cooperation and the International Criminal Court’ (2014) supra n 1 at 15. Kress and Prost, ‘Article 86: General Obligation to Cooperate’ (1999) supra n 26 at 1527.

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options of the Court are limited: they can ‘inform’ the asp or the unsc, who in turn may decide to impose further measures according to their rules.57 While the unsc has access to sanctions regimes, through its Chapter 7 un Charter powers, its application is restricted only to States that are specifically obliged to cooperate in the unsc referral text. Moreover, in practice, the unsc has omitted to provide a general obligation to cooperate in its referrals and has abstained from any coercive action concerning the frequent instances of non-cooperation connected to its referrals of Sudan and Libya.58 While the icc Statute does not deal with the failure to cooperate of international organisations or private institutions, it has been considered ‘perfectly conceivable’ that an international organisation can assume the treaty obligation to cooperate.59 It has been remarked that the icc’s case law on cooperation is not robust enough to deter non-compliance,60 and that the decisions on non-cooperation lack consistency, quality and authority of legal reasoning.61 Coupled with the absence of formal action from the unsc and asp62 following judicial decisions of non-cooperation, the coercive powers of the Court are muted and can be seen as compounding dis-incentives to comply.63 The effect of non-cooperation on the icc was amply demonstrated when the icc Prosecutor announced to the unsc that issues of non-cooperation gave her no option other than to curtail

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59 60 61

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Art. 87(5) icc Statute. Akande, ‘The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the icc’ (2012) 10 Journal of International Criminal Justice 299. Kress and Prost, ‘Article 86: General Obligation to Cooperate’ (1999) supra n 26 at 1527. University of Nottingham Human Rights Law Centre, ‘Report: Expert Workshop on Cooperation and the International Criminal Court’ (2014) supra n 1 at 37. University of Nottingham Human Rights Law Centre, ‘Report: Expert Workshop on Cooperation and the International Criminal Court’ (2014) supra n 1 at 39. De Hoogh and Knottnerus, ‘icc Issues New Decision on Al-Bashir’s Immunities – But Gets the Law Wrong… Again’, European Journal of International Law: Talk!, 18 April 2014, available at: www.ejiltalk.org/icc-issues-new-decision-on-al-bashirs-immunities-%E2%80%92-but-getsthe-law-wrong-again/(last accessed 19 August 2015). The adoption of non-cooperation guidelines by the asp has not been considered a success in shifting the incentive balance. See non-cooperation guidelines in resolution asp, Strengthening the International Criminal Court and the Assembly of States Parties, 21 December 2011, ICC-ASP/10/Res.5 at Annex. University of Nottingham Human Rights Law Centre, ‘Report: Expert Workshop on Cooperation and the International Criminal Court’ (2014) supra n 1 at 28–29.

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her investigation into the Al Bashir case in the Situation in Darfur, Sudan.64 The simple and forceful statement came just days after the withdrawal of charges against the current President of Kenya, Uhuru Muigai Kenyatta, largely on grounds on non-cooperation and interference, which had heavily contributed to the erosion of evidence in the case.65 The relative absence of sanctions or penalties for non-cooperation continues to be problematic for the icc:66 it limits the choice of actions that the Court can take, restricting its power and limiting its ability to execute its mandate, while removing some of traditional coercive incentives for compliance with international obligations. But coercive practices that seek to incentivise rule compliance following a breach, such as monitoring and sanctions, are not the only choices available to the icc: ‘managerial’ mechanisms such as capacity building and rule interpretation aim to prevent breaches, by addressing the constraints that may prevent adherence and thereby enable compliance.67 It is perhaps surprising then that the asp has shown steadfast reluctance to the Court engaging in managerial activities such as capacity building, even for the purpose of strengthening its essential activities such as cooperation.68 4

Enabling Formal and Behavioural Compliance with the International Criminal Court Cooperation Regime

The cooperation regime requires both formal and behavioural action from States, which cover a range of sensitive and somewhat complex functions and rule constraints. The choice of measures that aim to enable compliance with all dimensions of this regime need to be capable of addressing the causes of 64

ICC-OTP, ‘Statement to the United Nations Security Council on the Situation in Darfur, pursuant to unscr 1593 (2005)’, icc, 12 December 2014, available at: www.icc-cpi.int/en_ menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports %20and%20statements/statement/Pages/stmt-OTP-20th-report.aspx (last accessed 19 August 2015). 65 Ibid. 66 Cryer, Friman, Robinson and Wilmshurst, An Introduction to International Criminal Law and Procedure, 2nd Edn (Cambridge: cup, 2010) 518. 67 Chayes and Handler Chayes, ‘A Theory of Compliance’ (1995) supra n 3. 68 Moreover, such activities have typically been considered in the context of complementarity, rather than cooperation, see asp, Report of the Bureau on Stocktaking: Taking Stock of the Principle of Complementarity: Bridging the Impunity Gap, 18 March 2010, ICCASP/8/51 at para 4.

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non-compliance, as well as altering the balance of considerations towards compliance. Proponents of managerial compliance measures determine that they work where States are willing to enforce or apply the international standard, but are unable to do so due to a combination of rule ambiguity and capacity limitations.69 This may be an appropriate mechanism for many transitional, fragile or conflict-affected States. Indeed, management mechanisms encompass the protracted incapacities of post-conflict countries, where human, organisational and institutional capacity may be devastated or severely disrupted, as well as more discrete legislative, administrative and coordination capacity limitations, where compliance may be restricted due to the need for constitutional or legal amendments, or the ability to internally coordinate the required amendments and changes in practice. A Clarifying Rule Ambiguity through Rule Interpretation Where international rules or treaties are complex or ambiguous, the ability of the State (as well as its willingness) to implement as well as give effect to them may be limited or reduced. Their meaning may not be clear and immediate to those who must work with them in order to implement at the domestic level. Recourse may be made to shortcuts in their implementation that may or may not lead to subsequent compliance shortfalls, to seek expert guidance, or to seek formal clarification on the meaning of treaty provisions from the international treaty body.70 The managerial approach suggested by Tallberg removes the onus from the State, and returns it to the international organisation, which, he suggests, can issue authoritative rule interpretation on the areas of ambiguity or complexity, or which can provide informal and non-binding statements that can clarify the interpretation of treaty rules.71 This happens, for example, in the un Human

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Chayes and Handler Chayes, ‘A Theory of Compliance’ (1995) supra n 3; Tallberg, ‘Paths to Compliance: Enforcement, Management and the European Union’ (2002) supra n 4 at 609–611; Guzman, ‘A Compliance-Based Theory of International Law’ (2002) supra n 11; Lazarev, ‘On a Theoretical Concept of Control over the Fulfillment of International Obligations of States’ in Butler (ed), Control over Compliance with International Law (Dordrecht: Martinus Nijhoff, 1991) 17. See e.g. Montoya, ‘The European Union, Capacity Building, and Transnational Networks: Combating Violence Against Women Through the Daphne Program’ (2008) supra n 6. Tallberg, ‘Paths to Compliance: Enforcement, Management and the European Union’ (2002) supra n 4; Chayes and Handler Chayes, ‘A Theory of Compliance’ (1995) supra n 3.

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Rights Treaty Bodies, through the production of General Comments,72 which seek to elucidate, clarify or update the content of particular provisions, or by the International Law Commission, through the provision of Commentaries that accompany the drafts that they produce, while the Elements of Crimes document of the icc also attempts to provide clarification on the crimes of the icc Statute.73 Although the cooperation regime is acknowledged as a complex series of rules, with a degree of ambiguity written into it, the Court has not engaged in rule interpretation activities. Calls to improve the quality of legal reasoning in decisions on non-cooperation have been made, however, as part of a momentum to improve engagement with and understanding of the cooperation requirements.74 Each of the organs of the Court has refrained from engagement in interpretive activities on cooperation outside of formal judicial ­proceedings: neither the Chambers nor the Registry has issued interpretive guidance on the formal requirements of cooperation, while the otp has engaged in aspects of its approach to cooperation in other policy materials.75 The asp also produces materials on the cooperation regime, including an 72

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General Comments or General Recommendations form the un Treaty Bodies interpretation of the provisions of its respective human rights treaty. Taken from un Office of the High Commission for Human Rights, ‘Human Rights Treaty Bodies – General Comments’, un Office of the High Commission for Human Rights, available at: www.ohchr.org/EN/ HRBodies/Pages/TBGeneralComments.aspx (last accessed 15 June 2015). Constituted through Art. 9 icc Statute, Elements of Crimes; asp, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session: New York, 3–10 September 2002, ICC-ASP/1/3/Add.1 and revised in asp, Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May−11 June 2010, RC/11. University of Nottingham Human Rights Law Centre, ‘Report: Expert Workshop on Cooperation and the International Criminal Court’ (2014) supra n 1 at 32 and 39. ICC-OTP, ‘Policy Paper on Sexual and Gender-Based Crimes’, icc, 5 June 2014, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20 the%20prosecutor/policies%20and%20strategies/Pages/Policy-Paper-on-Sexual-and -Gender-Based-Crimes-05-06-2014.aspx (last accessed 19 August 2015) at Part vii; ICC -OTP, ‘Policy Paper on Preliminary Examinations’, icc, November 2013, available at: www .icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20 prosecutor/policies%20and%20strategies/Pages/draft%20policy%20paper%20on%20 preliminary%20examinations.aspx (last accessed 19 August 2015) at paras 26, 85 and 99; ICC-OTP, ‘Annex to the “Paper on Some Policy Issues before the Office of the Prosecutor”: Referrals and Communications’, icc, 2004, available at: www.icc-cpi.int/en_menus/icc/ structure%20of%20the%20court/office%20of%20the%20prosecutor/policies%20 and%20strategies/Pages/annex%20to%20the%20%20_%20paper%20on%20some%20

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annual Resolution on Cooperation and has established working groups of Member States that respond to operational aspects while also producing reports of its activities.76 These publications do not provide expert guidance or clarification on the meaning of the cooperation provisions, but do serve to raise issues concerning the implementation and operation of the regime. Other international organisations that have agreements with the icc have issued positions or statements concerning the cooperation regime. The Guidance on Contacts with Persons who are the Subject of Arrest Warrants or Summonses Issued by the International Criminal Court,77 issued by the un Secretary General in 2013, marks a type of interpretive activity. However, rather than interpreting the rules of arrest and surrender, it forms part of the softer sanctions associated with non-compliance of requests for arrest or surrender of persons. Equally, the eu has sought to establish a common response to noncooperation with the icc by third States,78 which forms another example of efforts to sway non-cooperation and register disapproval, rather than to clarify the rules governing cooperation. Interpretive support is also provided from other organisations external to the icc, including the development of model laws by the Commonwealth Secretariat79 and datasets of national laws implementing the obligation to cooperate by the University of Nottingham.80

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policy%20issues%20before%20the%20office%20of%20the%20prosecutor%20.aspx (last accessed 19 August 2015). Reports on activities of the asp Bureau with regard to non-cooperation, including any recommendations for action have been published three times. See asp, Report of the Bureau on non-cooperation, 1 November 2012, ICC-ASP/11/29; asp, Report of the Bureau on non-cooperation, 7 November 2013, ICC-ASP/12/34 and asp, Report of the Bureau on non-cooperation, 5 December 2014, ICC-ASP/13/40. un Secretary General, Guidance on contacts with persons who are the subject of arrest warrants or summonses issued by the International Criminal Court, 8 April 2013, A/67/ 828–S/2013/210. icc Sub-area of the Public International Law Working Group (COJUR-ICC), The eu’s response to non-cooperation with the International Criminal Court by third states, 27 November 2013, 16993/13. See Model law to implement the icc Statute, reproduced in Commonwealth Secretariat, ‘International Criminal Court (icc) Statute and implementation of the Geneva Conventions’ (2011) 37 Commonwealth Law Bulletin 681. See also Akande, ‘Commonwealth Revises Its Model Law on the International Criminal Court’, European Journal of International Law: Talk!, 28 July 2011, available at: www.ejiltalk.org/commonwealthrevises-its-model-law-on-the-international-criminal-court/(last accessed 19 August 2015). See the University of Nottingham Human Rights Law Centre and Case Matrix Network (cmn) project to develop the Cooperation and Judicial Assistance Database (cjad), introduced here in Chapter 14. See also cmn, ‘cjad (Cooperation and Judicial Assistance

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B Addressing Capacity Limitations through Capacity Development Rule ambiguity or complexity can further compound the capacity limitations of States to adopt formal or behavioural changes following treaty accession. Managerialists have stressed that complex treaty obligations will be felt more strongly in the political, economic and legal capacities of State institutions.81 They have observed capacity limitations amongst the legislature, where specialist drafting skills may be required, within and across government as well as military institutions where different actors are required to adhere to the international rules, and where administrative or coordination capacity may be required to ensure compliance. Resource constraints can also prevent or limit the fulfilment of international obligations, where additional infrastructure, equipment and skilled personnel are required, all of which demand the allocation of additional budgetary resources.82 Legal capacity can be stretched at all stages of expected compliance: legal drafters may have insufficient knowledge of the international rules that they are required to incorporate, while the relevant actors may lack working familiarity of the international rules and have insufficient understanding of the techniques required to operate within that system. Capacity limitations are both institutional as well as individual, governing rules, infrastructure and resources as well as the knowledge, commitment and independence to execute the rules. As a consequence, where capacity limitations are identified, managerialists suggest that, in many circumstances, they can be better addressed through positive and pre-emptive incentives to comply, rather than through punitive measures once the breach or failure has occurred.83 The expectation is that these processes will ensure greater compliance with treaty obligations and

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Database)’, cmn icj Toolkits Project, available at: https://blog.casematrixnetwork.org/ toolkits/databases/cjad/(last accessed 19 August 2015). Haas, ‘Choosing to Comply: Theorizing from International Relations and Comparative Politics’ (2000) supra n 12; Mackenzie, Romano and Shany, ‘Compliance Procedures in Multilateral Environmental Agencies’ in Mackenzie, Romano and Shany (eds), Manual on International Courts and Tribunals, 2nd edition (Oxford: oup, 2010) 501; Montini, ‘Improving Compliance with Miltilateral Environmental Agreements through Positive Measures: The Case of the Kyoto Protocol on Climate Change’ in Kiss, Shelton and Ishibashi (eds), Economic Globalization and Compliance with International Environmental Agreements (The Hague: Kluwer Law International, 2003) 157. See e.g. Human Rights Centre, ‘The Long Road: Accountability for Sexual Violence in Conflict and Post-Conflict Settings’, University of California, Berkely, August 2015, available at: www.law.berkeley.edu/centers/human-rights-center/(last accessed 31 August 2015). Chayes and Handler Chayes, ‘A Theory of Compliance’ (1995) supra n 3; Tallberg, ‘Paths to Compliance: Enforcement, Management and the European Union’ (2002) supra n 4 at 360.

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assist in the prevention of the escalation of disputes.84 It is unsurprising that conflict-affected States, as well less economically developed States or transitioning States tend to demonstrate the greatest non-compliance in complex treaty adherence.85 The use of capacity development to address capacity limitations that prevent treaty compliance by States is a popular managerial solution, particularly through the provision of resources, such as technology, expertise, personnel and administrative services.86 Managerialists recognise that this can require intense resource investment from the treaty organisation or other supportive development agencies, and look to the services provided by the un, eu and World Bank in providing compliance-focused assistance.87 Similar options are also available to the icc, through explicit clauses of the cooperation agreements concluded with the un,88 the eu89 and the Commonwealth Secretariat.90 C Supporting Ongoing Compliance through Professional Networks The use of inter-institutional links, or networks, has also been observed as a compliance tool, where the creation of networks that amplify institutional 84 Sands, ‘The Role of Non-Governmental Organisations in Enforcing International Environmental Law’ in Butler (ed), Control over Compliance with International Law (London: Martinus Nijhoff, 1991) 61; Downs and Trento, ‘Conceptual Issues Surrounding the Compliance Gap’ in Luck and Doyle (eds), International Law and Organization: Closing the Compliance Gap (Maryland: Rowman & Littlefield, 2004) 19. 85 Ibid., Downs and Trento ‘Conceptual Issues Surrounding the Compliance Gap’ (2004) at 21; World Bank, ‘World Development Report 2011: Conflict, Security, and Development’, World Bank, 11 April 2011, available at: http://go.worldbank.org/QLKJWJB8X0 (last accessed 20 August 2015). 86 Tallberg, ‘Paths to Compliance: Enforcement, Management and the European Union’ (2002) supra n 4 at 360. 87 Cardenas, Conflict and Compliance: State Responses to International Human Rights Pressure (2007) supra n 6; Montoya, ‘The European Union, Capacity Building, and Transnational Networks: Combating Violence Against Women Through the Daphne Program’ (2008) supra n 6; Chayes and Handler Chayes, ‘A Theory of Compliance’ (1995) supra n 3 at 13–15. 88 Art. 15(2) icc, Negotiated Relationship Agreement between the International Criminal Court and the United Nations, 22 July 2004, ICC-ASP/3/Res.1; specifies forms of cooperation and allows other forms of assistance that are compatible with the mandates of both bodies. 89 Art. 16 icc, Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, 10 April 2006, ICC-PRES/01-01-06. 90 Art. 8, icc, Memorandum of Understanding between the International Criminal Court and the Commonwealth on Cooperation, 13 July 2011, ICC-PRES/10-04-11.

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elements of international rule adherence can positively affect State compliance.91 International organisations also provide indirect compliance-orientated capacity building, through funded programmes, partnerships and transnational networks, although this has received less attention and scrutiny as regards its impact on compliance.92 Indirect networks, of civil society or advocates who can maintain pressure on those responsible for executing the rule requirements, have also been acknowledged as effective contributors towards maintaining compliance. Transnational networks have been acknowledged to shape and affect changes in law and legal practice and facilitate the sharing of resources, knowledge and experience, which make rule adherence more likely to increase. Both network options have been identified as valuable solutions to certain compliance constraints within the cooperation regime: practitioner-led networks such as the Law Enforcement Network, the eu-Genocide Network, financial investigation networks as well as focal points, the prospective Network of National Cooperation Practitioners, as well as the icc Visiting Professional Programme all fall under this mechanism.93 Moreover, indirect networks of civil society, law firms and universities serve to maintain pressure on national actors responsible for cooperation by sharing information, mobilising for advocacy campaigns or submitting legal actions.94 D Maintaining Compliance through Transparency As the fourth tool in the managerialists’ compliance toolkit, ‘transparency’ is an elusive concept, which seeks to encourage rule conformity through social pressure. As part of a package of measures, transparency activities conducted by the treaty body are considered to improve compliance by facilitating coordination on the treaty requirements, practices and norms, raising awareness of 91

Haas, ‘Choosing to Comply: Theorizing from International Relations and Comparative Politics’ (2000) supra n 12 at 56. 92 Montoya, ‘The European Union, Capacity Building, and Transnational Networks: Combating Violence Against Women Through the Daphne Program’ (2008) supra n 6. 93 University of Nottingham Human Rights Law Centre, ‘Report: Expert Workshop on Cooperation and the International Criminal Court’ (2014) supra n 1 at 22, 61 and 82. 94 See e.g. the role of South African ngo, the Southern African Litigation Centre (salc) in submitting a motion seeking the execution of icc arrest warrants against Sudanese President, Omar Al Bashir, to the South African High Court and the subsequent judgment and appeals, summarised in cmn, ‘South African High Court Delivers Al Bashir Judgment’ cmn icj Toolkits Project, 7 July 2015, available at: blog.casematrixnetwork.org/toolkits/ eventsnews/news/south-african-high-court-delivers-al-bashir-judgment/(last accessed on 31 August 2015).

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alternative national compliance strategies and reassuring members that they receive equal treatment.95 Many of these activities seem familiar to the panoply of outreach activities that have grown around international criminal tribunals. Various agreements with international organisations and the icc include clauses on promotion and dissemination of the principles and values of the icc Statute, concluded with the Organization of American States, the World Bank and the Asian-African Legal Consultative Organisation,96 can serve as conduits to greater transparency building within organisations and their membership communities. 5

Managerial Assumptions and Limitations

Each of the compliance mechanisms introduced here is based on several overlapping assumptions about why States violate, reject, overlook, ignore, attempt or adhere to treaty rules or norms. Accurate diagnosis of the reasons why States may not adequately comply with their obligations or requirements is an important component of identifying appropriate remedies or compliance mechanisms. Two largely theoretical sets of assumptions have been developed in support of managerial options. A Propensity to Comply The first is referred to as the ‘propensity to comply’.97 Here, the principle cause of non-compliance is not wilful disobedience, but a lack of clarity, resources and capacity to execute the rule.98 Where these conditions exist, it is argued that international organisations can encourage compliance through constructive

95

Tallberg, ‘Paths to Compliance: Enforcement, Management and the European Union’ (2002) supra n 4. 96 icc, Exchange of Letters Between the International Criminal Court and the General Secretariat of the Organization of American State for the establishment of a Framework Cooperation Agreement, 18 April 2011, ICC-PRES/08-02-1; icc, Memorandum of Understanding between the International Criminal Court and the Asian-African Legal Consultative Organization, 5 February 2008, ICC-PRES/05-01-08; icc Press Release, ‘icc Prosecutor and World Bank Vice-Presidency to Cooperate on Investigations’, icc, 12 October 2009, ICC-OTP-20091012-PR462, available at: www.icc-cpi.int/en_menus/icc/ press%20and%20media/press%20releases/press%20releases%20(2009)/Pages/pr462. aspx (last accessed 20 August 2015). 97 Chayes and Handler Chayes, ‘A Theory of Compliance’ (1995) supra n 3. 98 Ibid.

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measures.99 A second assumption is that States approach international rules rationally.100 Conjoined to the assumption of rationality is an expectation that the State acts efficiently, where continuous recalculation of the trade-offs of non-compliance reduces the efficiency of the State and its ability to freely allocate its resources to the most urgent and pressing matters. The final assumption is that States are willing to comply with the international rules that they sign up to. The existence of a legal obligation translates into a presumption of compliance in the absence of strong countervailing circumstances: where a State ratifies a treaty, they do so with the understanding that this entails a legal obligation to obey.101 The expectation of monolithic State machinery behaving in a consistently rational manner appears out-dated and ill-suited102 to the subject matter of cooperation in the investigation and prosecution of persons suspected of genocide, crimes against humanity and war crimes. B Likelihood to Comply An alternative and more persuasive model works on the bases of the perceived and actual legal, financial, political and social costs of compliance. Defined as the ‘likelihood to comply’, it works on the basis of a cost-benefit analysis, where States are likely to comply where the composite costs are low, but that as soon as those costs increase, the likelihood to comply shrinks rapidly.103 In conjunction, different compliance strategies are also suggested according to the State capacity: where a State is willing and able, modest sanctions may be sufficient to encourage corrective behaviour. Where States are able but unwilling, coercion should be applied to the sum of the perceived benefit of non-compliance. It is only where States are unable but willing that positive incentives should be provided. Finally, where both willingness and capacity are deficient, the use of multiple strategies is advocated, using positive incentives to remove capacity deficiencies, transparency measures to map the progress and more coercive 99

Tallberg, ‘Paths to Compliance: Enforcement, Management and the European Union’ (2002) supra n 4 at 609–612. 100 Raustiala and Slaughter, ‘International Law, International Relations and Compliance’ (2002) supra n 17 at 542; Downs, ‘Enforcement and the Evolution of Cooperation’ (1998) 19 Michigan Journal of International Law 319; Tallberg, ‘Paths to Compliance; Enforcement, Management and the European Union’ (2002) supra n 4 at 613; Chayes and Handler Chayes, ‘A Theory of Compliance’ (1995) supra n 3 at 3. 101 Chayes and Handler Chayes, ‘A Theory of Compliance’ (1995) supra n 3 at 6–9. 102 Cardenas, Chains of Justice: The Global Rise of State Institutions for Human Rights, 1st edition (Philadelphia: University of Pennsylvania Press, 2014). 103 Downs and Trento Downs and Trento, ‘Conceptual Issues Surrounding the Compliance Gap’ (2004) supra n 84 at 45–47.

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compliance where necessary to change the attitudes of the relevant parties towards compliance.104 The likelihood to comply can be reproduced as a basic matrix: Table 1

Composite matrix of the likelihood to comply and compliance mechanisms (Downs)

State capacity

Costly compliance

Non-costly compliance

Compliance mechanism

Willing and able Able but unwilling Unable but willing Unable and unwilling

Possible Unlikely Try and fail Highly unlikely

Most likely Unlikely Try to comply Unlikely

Modest sanctions Coercion Positive incentives Multiple strategies

However, where international treaties require ‘deep cooperation’105 by the State, it can be expected that the required behavioural change will affect a great many institutions as well as private entities. This is likely to raise the costs of compliance and the likelihood of deviance from the treaty. Moreover, it has been reflected that 90% of cases before the icc addressed violations by or involving State agents or State institutions and yet it is often the territorial State which is required to cooperate with the icc.106 Such tentative observations of the cooperation regime are inclined to reinforce the deep cooperation thesis, although there are other variables that also affect the generally pessimistic outlook of the regime. These include objective determinates of States emerging from or remaining in spasms of conflict, where severe limitation of infrastructural resources and economic, human and legal capital may be ­determined, as well as more subjective determinates of political, military and social support for the actions of the requests, where it involves scrutiny of those who maintain or wield power and influence.107 104 Ibid. at 31. 105 Ibid. 106 University of Nottingham Human Rights Law Centre, ‘Report: Expert Workshop on Cooperation and the International Criminal Court’ (2014) supra n 1 at 6(c). 107 See e.g. the evolving general indicators for fragile and conflict affected States developed by the World Bank, as well as its sector specific interests in World Bank Fragility, Conflict and Violence Group, ‘Information Note: The World Bank Group’s Harmonized List of Fragile Situations’, World Bank, July 2015, available at: www.worldbank.org/en/topic/ fragilityconflictviolence (last accessed 31 August 2015) and Leroy, ‘Legal Note on Bank Involvement in the Criminal Justice Sector: Legal note submitted by the Senior Vice President and Group General Counsel’, World Bank, 9 February 2012, available at: documents.worldbank.org/curated/en/2012/02/15889342/legal-note-bank-involvement-criminal -justice-sector (last accessed 9 September 2015).

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The observation that deep cooperation can be expected to raise the costs of compliance and therefore lead to increase in scale and depth of noncompliance raises important strategic and policy issues for the icc as regards the cooperation regime. During the University of Nottingham Human Rights Law Centre’s Expert Workshop on Cooperation and the Inter­ national Criminal Court, several examples of this were raised, from the breadth of national institutions that need to comply with cooperation requests, to the depth of resources that any single institution may require in order to execute requests. The challenges imposed by the legal framework of the cooperation regime formed a central focus, including the absence of enforcement mechanisms, the limited powers of obligations over third parties and non-State Parties.108 Other systemic challenges included the subject matter of the cooperation regime and its impact on the power structures of the institutions responsible for executing the requests.109 Examples of the diversity of the challenges raised in practice included the limited effect of consultation mechanisms with recalcitrant States such as Sudan,110 the absence of third party compulsion powers regarding requests directed to financial institutions111 and the reflection that the profiles of witnesses requiring relocation often influenced States decisions. Anecdotes included difficulties encountered by the Ugandan army in detaining those named in the lra arrest warrants,112 despite the partnership between the Ugandan military and us Special Operations Troops, who have provided information, assistance, security and combat training to African units since 2011 to capture lra leaders. While the icc is not in a position to provide such assistance (by virtue of not having its own police or armed forces), the asp would be unlikely to support other compliance actions of a similar scale of personnel, duration and cost. Since consideration of the Court’s prospective role in delivering positive complementarity activities during the Review Conference, the asp Bureau warned against the icc taking on such

108 University of Nottingham Human Rights Law Centre, ‘Report: Expert Workshop on Cooperation and the International Criminal Court’ (2014) supra n 1 at paras 4–7. 109 Ibid. at para 6(c). 110 Ibid. at paras 15–16. 111 Ibid. at para 18. 112 Although Uganda recently demonstrated its willingness and ability to surrender Dominic Ongwen to the icc, following his arrest in the CAR and subsequent transfer to the icc on 20 January 2015. See hrw, ‘icc: lra Transfer Advances Chance for Justice’, hrw, 20 January 2015, available at: www.hrw.org/news/2015/01/20/icc-lra-transfer-advanceschance-justice (last accessed on 31 August 2015).

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work with the refrain that the icc is not a development agency.113 Meanwhile other such agencies, notably the World Bank, have encouraged the importance of seeking collaborative solutions to the capacity restraints experienced in post-conflict countries.114 Moreover, it was remarked that the icc’s case law on cooperation is not robust enough to deter non-compliance,115 which, coupled with the absence of formal action from the unsc and the asp following judicial decisions of non-cooperation, could compound dis-incentives to comply associated with deep cooperation.116 6 Conclusions In considering the relevance of managerial compliance as a framework to strengthen the icc cooperation regime, this chapter has framed cooperation practices in terms of compliance mechanisms, effects, actions and assumptions. It has been observed that the cooperation regime operates with a considerable handicap due to the absence of enforcement mechanisms, the limited powers of obligations over third parties and non-State Parties and the intersection of the icc’s legal framework with its domestic counterparts concerning conflicting obligations.117 Equally, the complexity of the regime and the breadth of formal and behavioural actions can impose significant burdens upon States’ institutions and often requires the formal support of leaders who may be the subject of the icc’s scrutiny. These two formal conditions – weak enforcement mechanisms and the complexity of the obligations – indicate the difficulties that lay ahead in ensuring compliance, regardless of the choice of compliance actions. The reflection that such ‘deep cooperation’ is likely to raise the likelihood of treaty deviance is mirrored in the relative weakness of the Court’s practice in developing and applying effective and persuasive compliance measures, where States reject or fail to comply with requests. Continued non-cooperation and ineffective 113 asp, Report of the Bureau on Stocktaking: Taking Stock of the Principle of Complementarity: Bridging the Impunity Gap (2010) supra n 68. 114 World Bank, ‘World Development Report 2011: Conflict, Security, and Development’ (2011) supra n 85. 115 University of Nottingham Human Rights Law Centre, ‘Report: Expert Workshop on Cooperation and the International Criminal Court’ (2014) supra n 1 at para 37. 116 Ibid. at paras 28–29. 117 Ibid. at 4–7 and 56.

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responses by the icc, its asp and the unsc weaken the system and the choice of incentives to comply. Moreover, without reform to strengthen the more coercive practices available to the Court, the continued absence of effective sanctions leaves little option other than to prioritise managerial options. As a counterpart to coercive mechanisms, managerial compliance can provide tangible avenues to enable compliance with the cooperation regime, but they are more likely to be effective within relatively limited parameters, where States have a degree of willingness but less ability. Several managerial activities have been discussed or deployed, from activities to support the implementation of legislation (formal compliance) to agreements to provide capacity development and the availability or discussion of creating professional networks. As largely responsive or disparate activities, they appear to address a specific situation, or form part of a particular initiative, rather than being a part of an over-arching plan or policy. While this may, of itself, be part of the general growing pains of the icc, the absence of a more clearly articulated plan or policy is unlikely to service the mandate of the Court. This may be compounded by the reliance upon external actors for the coordination, funding and or execution of compliance activities. While this may yet represent an effective model of partnership between different, largely public, bodies, such a direction would benefit from careful assessment and analysis to ensure coherence and consistency and to reduce the inevitable ­repetition and overlap that occurs in multi-agency delivery.118 Compliance theories can also contribute to this analysis, by providing a framework for analysis as well as a structure to identify the purpose and outcomes required by the different institutions. In ensuring the necessary formal and behavioural actions take place, various legal, institutional and policy issues will need to be addressed. Some examples include the formal coherence

118 See e.g. Chandy and Kharas, ‘Why Can’t We All Just Get Along? The Practical Limits to International Development Cooperation’, (2011) 23 Journal of International Development 739; Baker and Scheye, ‘Multi-layered justice and security delivery in post-conflict and fragile states’ (2007) 7 Conflict Security and Development 503; Addison, Mavrotas and McGillivray, ‘Development assistance and development finance: evidence and global policy agendas’ (2005) 17 Journal of International Development 819. The creation of coordination offices within Justice Ministries, such as the Justice Sector Coordination Office in Sierra Leone have been in response to the range of actors engaged in long-term development funding and investment. However analysis of multi-agency delivery of justice sector capacity initiatives remain limited. See e.g. Wiafe-Amoako, Human Security and Sierra Leone’s Post-Conflict Development (Lanham: Lexington Books, 2014).

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between the mandates of different international organisations and the resources required and actors willing to provide them. The icc appears to have a broad choice of external actors available for such coordination, funding and execution. It has concluded cooperation agreements with several international organisations where the provision of capacity development activities are foreseen, and whose mandates more easily enable them to address those broader compliance constraints. However, scrutiny of the respective mandates is required to ensure that such bodies mutually act within and in accordance with their powers. The icc Statute has established standards that are in some instances distinct to standards and obligations held under different international bodies: one example could include the differences in the requirements of fair trial standards within the un human rights treaty system and those fair trial tests required of the icc’s admissibility process, while another may include the differing approaches taken to the application of the death penalty by State Parties by the icc and the eu or un.119 In the context of cooperation and judicial assistance, compliance activities should be targeted to the legal requirements of the icc, which may mean excluding statutes, standards or guidelines that form part of the partner organisations’ substantive mandate. Moreover, the ‘deep cooperation’ demand imposed by the icc cooperation regime is likely to require considerable and sustained injections of finance, resources and equipment in many countries. This may require additional planning or adaptation from the services or redevelopment funds and priorities of external partners such as the World Bank, eu, un as well as States. Notwithstanding the agreements between these organisations and the icc, this may require significant deviation of finite ‘development’ resources away from other vital areas, such as healthcare or sanitation or the willingness to expand the budgets of these organisations. Recent studies on the resources required to implement criminal justice activities at the national level, along with emerging interests in national needs assessments, can all help to inform 119 The icc Statute can impose a maximum sentence of 30 years or life (Art. 77 icc Statute) and includes an explicit non-prejudice clause concerning the application by States of penalties prescribed by their national law (Art. 80 icc Statute) whereas the eu has an explicit opposition to the application of the death penalty, along with un iccpr Optional Protocol ii whose signatories commit to the abolition of the death penalty. See Council of the eu, eu Guidelines on Death Penalty, 12 April 2013, 8416/13 COHOM 64 PESC 403 oc 213 and unga, Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, 15 December 1989, A/RES/44/128.

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this process.120 In turn, broader critiques and questions on the dominant role of the ‘international community’ in the reconstruction of a State may arise and require attention to ensure that compliance models are sustainable, economically, politically and legally.121 In conclusion, compliance theories can provide a framework to analyse the causes that trigger non-compliance, while managerial compliance can help to structure the activities that may strengthen adherence to the cooperation regime. Neither offers a golden panacea to the fragilities of the cooperation regime, which, as early experience has shown, is inherently complex and sensitive. However, taken together they can contribute towards a more sustained policy on the strengthening of the icc and its cooperation regime. List of References Books and Journals

Addison, Mavrotas and McGillivray, ‘Development assistance and development finance: evidence and global policy agendas’ (2005) 17 Journal of International Development 819. Akande, ‘The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC’ (2012) 10 Journal of International Criminal Justice 299. Baker and Scheye, ‘Multi-layered justice and security delivery in post-conflict and fragile states’ (2007) 7 Conflict Security and Development 503. Banks, ‘Reconstructing Justice in Iraq: Promoting the Rule of Law in a Post-Conflict State’ (2010) 2 Hague Journal on the Rule of Law 155.

120 E.g. Human Rights Centre, ‘The Long Road: Accountability for Sexual Violence in Conflict and Post-Conflict Settings’ (2015) supra n 82; International Centre for Transitional Justice, ‘The Accountability Landscape in Eastern drc: Analysis of the National Legislative and Judicial Response to International Crimes (2009–2014)’, International Centre for Transitional Justice, July 2015, available at: www.ictj.org/publication/accountability -landscape-eastern-drc-analysis-national-legislative-and-judicial-response (last accessed 9 September 2015). 121 See e.g. Bhuta, ‘Democratization, State-building and Politics as Technology’ in Charlesworth, Bowden and Farrall (eds), Great Expectations: The Role of International Law in Restructuring Societies After Conflict (Cambridge: cup, 2008) 38; Banks, ‘Reconstructing Justice in Iraq: Promoting the Rule of Law in a Post-Conflict State’ (2010) 2 Hague Journal on the Rule of Law 155.

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Bhuta, ‘Democratization, State-building and Politics as Technology’ in Charlesworth, Bowden and Farrall (eds), Great Expectations: The Role of International Law in Restructuring Societies After Conflict (Cambridge: CUP, 2008) 38. Burchard, ‘Complementarity as Global Governance’ in Stahn and El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: CUP, 2011) 167. Burke-White, ‘Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice’ (2008) 49 Harvard International Law Journal 53. Cardenas, Conflict and Compliance: State Responses to International Human Rights Pressure (Philadelphia: University of Pennsylvania Press, 2007). Cardenas, Chains of Justice: The Global Rise of State Institutionsfor Human Rights, 1st edition (Philadelphia: University of Pennsylvania Press, 2014). Chandy and Kharas, ‘Why Can’t We All Just Get Along? The Practical Limits to International Development Cooperation’, (2011) 23 Journal of International Development 739. Chayes and Handler Chayes, ‘A Theory of Compliance’ in Chayes and Handler Chayes, The New Sovereignty: Compliance with International Regulatory Regimes: vol 47, (Cambridge: Harvard University Press, 1995). Chehtman and Mackenzie, Capacity Development in International Criminal Justice: A Mapping Exercise of Existing Practice (Reykjavik: DOMAC/2, 2009). Commonwealth Secretariat, ‘International Criminal Court (ICC) Statute and implementation of the Geneva Conventions’ (2011) 37 Commonwealth Law Bulletin 681. Cryer, Friman, Robinson and Wilmshurst, An Introduction to International Criminal Law and Procedure, 2nd Edn (Cambridge: CUP, 2010) 518. Downs, ‘Enforcement and the Evolution of Cooperation’ (1998) 19 Michigan Journal of International Law 319. Downs and Trento, ‘Conceptual Issues Surrounding the Compliance Gap’ in Luck and Doyle (eds), International Law and Organization: Closing the Compliance Gap (Maryland: Rowman & Littlefield, 2004) 19. Edwards, ‘Law and the parameters of acceptable deviance’ (2006) 97 Journal of Criminal Law and Criminology 49. Gowland-Debbas, ‘Sanctions Regimes under Article 41 of the UN Charter’ in GowlandDebbas (ed), National Implementation of United Nations Sanctions (Leiden: Martinus Nijhoff, 2004). Guzman, ‘A Compliance-Based Theory of International Law’ (2002) 90 California Law Review 1823. Haas, ‘Choosing to Comply: Theorizing from International Relations and Comparative Politics’ in Shelton (ed), Commitment and Compliance: the role of non-binding norms in the international legal system (Oxford: OUP, 2000) 56.

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Helfer and Slaughter, ‘Why States Create International Tribunals: A Response to Professors Posner and Yoo’ (2005) 93 California Law Review 899. Howse and Teitel, ‘Beyond Compliance: Rethinking Why International Law Really Matters’ (2010) 1 Global Policy Journal 127. Hunter, ‘Establishing the Legal Basis for Capacity Building under the ICC Statute’ in Bergsmo (ed), Active Complementarity: Legal Information Transfer (Oslo: Torkel Opsahl Academic EPublisher, 2011) 67. Kent Weaver, ‘Compliance Regimes and Barriers to Behavioral Change’ (2014) 27 Governance 243. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford: OUP, 2008). Kress and Prost, ‘Article 86: General Obligation to Cooperate’ in Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court : observers’ notes, article by article (Baden-Baden: Nomos, 1999) 1514. Lazarev, ‘On a Theoretical Concept of Control over the Fulfillment of International Obligations of States’ in Butler (ed), Control over Compliance with International Law (Dordrecht: Martinus Nijhoff, 1991) 17. Mackenzie, Romano and Shany, ‘Compliance Procedures in Multilateral Environmental Agencies’ in Mackenzie, Romano and Shany (eds), Manual on International Courts and Tribunals, 2nd edition (Oxford: OUP, 2010) 501. Montini, ‘Improving Compliance with Miltilateral Environmental Agreements through Positive Measures: The Case of the Kyoto Protocol on Climate Change’ in Kiss, Shelton and Ishibashi (eds), Economic Globalization and Compliance with International Environmental Agreements (The Hague: Kluwer Law International, 2003) 157. Montoya, ‘The European Union, Capacity Building, and Transnational Networks: Combating Violence Against Women Through the Daphne Program’ (2008) 62 International Organization 359. Ngangjoh-Hodu, Theories and Practices of Compliance with WTO Law (Frederick: Aspen Publishers, 2012). Posner and Yoo, ‘Judicial Independence in International Tribunals’ (2005) 93 California Law Review 1. Posner and Yoo, ‘Reply to Helfer and Slaughter’ (2005) 93 California Law Review 957. Raustiala and Slaughter, ‘International Law, International Relations and Compliance’ in Carlnaes, Risse and Simmons (eds), Handbook of International Relations (London: Sage, 2002) 538. Rosand, ‘Resolution 1373 and the Counter Terrorism Committee: The Security Council’s Capacity Building’ in Nesi (ed), International Cooperation in Counter-Terrorism: The United Nations and Regional Organizations in the Fight Against Terrorism (Hampshire: Ashgate, 2006).

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Sands, ‘The Role of Non-Governmental Organisations in Enforcing International Environmental Law’ in Butler (ed), Control over Compliance with International Law (London: Martinus Nijhoff, 1991) 61. Scharf, ‘The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal’ (2000) 49 De Paul Law Review 925. Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York: W.W. Norton & Co, 2011). Simmons, ‘Treaty Compliance and Violation’ (2010) 13 Annual Review of Political Science 273. Simmons, ‘From Ratification to Compliance: Quantitative Evidence on the Spiral Model’ in Risse, Ropp and Sikkink (eds), The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge: CUP, 2013) 43. Tallberg, ‘Paths to Compliance: Enforcement, Management, and the European Union’ (2002) 56 International Organization 609. Tolbert and Kontic, ‘The International Criminal Tribunal for the Former Yugoslavia: Transitional Justice, the Transfer of Cases to National Courts and Lessons for the ICC’, in Stahn and Sluiter (eds), The Emerging Practice of the International Criminal Court, vol 48 (Leiden: Martinus Nijhoff, 2009) 135. Wiafe-Amoako, Human Security and Sierra Leone’s Post-Conflict Development (Lanham: Lexington Books, 2014).



Legal Cases and United Nations Documents



Other Documents

UNGA, Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, 15 December 1989, A/RES/44/128. UN Secretary General, Guidance on contacts with persons who are the subject of arrest warrants or summonses issued by the International Criminal Court, 8 April 2013, A/67/828–S/2013/210. UNSC Res 1970, 26 February 2011, S/Res/1970 (2011).

ASP, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session: New York, 3–10 September 2002, ICCASP/1/3/Add.1. ASP, Report of the Bureau on Stocktaking: Taking Stock of the Principle of Complementarity: Bridging the Impunity Gap, 18 March 2010, ICC-ASP/8/51. ASP, Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May−11 June 2010, RC/11. ASP, Strengthening the International Criminal Court and the Assembly of States Parties, 21 December 2011, ICC-ASP/10/Res.5 at Annex. ASP, Cooperation, 21 November 2012, ASP/11/Res.5.

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ASP, Report of the Bureau on non-cooperation, 1 November 2012, ICC-ASP/11/29. ASP, Report of the Bureau on non-cooperation, 7 November 2013, ICC-ASP/12/34. ASP, Cooperation, 27 November 2013, ASP/12/Res.3. ASP, Report of the Bureau on non-cooperation, 5 December 2014, ICC-ASP/13/40. ASP, Resolution on Cooperation, 17 December 2014, ASP/13/Res.3. Council of the EU, EU Guidelines on Death Penalty, 12 April 2013, 8416/13 COHOM 64 PESC 403 OC 213. ICC, Negotiated Relationship Agreement between the International Criminal Court and the United Nations, 22 July 2004, ICC-ASP/3/Res.1. ICC, Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, 10 April 2006, ICC-PRES/01-01-06. ICC, Memorandum of Understanding between the International Criminal Court and the Asian-African Legal Consultative Organization, 5 February 2008, ICC-PRES/ 05-01-08. ICC, Exchange of Letters Between the International Criminal Court and the General Secretariat of the Organization of American State for the establishment of a Framework Cooperation Agreement, 18 April 2011, ICC-PRES/08-02-1. ICC, Memorandum of Understanding between the International Criminal Court and the Commonwealth on Cooperation, 13 July 2011, ICC-PRES/10-04-11. ICC Sub-area of the Public International Law Working Group (COJUR-ICC), The EU’s response to non-cooperation with the International Criminal Court by third states, 27 November 2013, 16993/13.



Online Materials

Akande, ‘Commonwealth Revises Its Model Law on the International Criminal Court’, European Journal of International Law: Talk!, 28 July 2011, available at: www.ejiltalk .org/commonwealth-revises-its-model-law-on-the-international-criminal-court/ (last accessed 19 August 2015). CMN, ‘CJAD (Cooperation and Judicial Assistance Database)’, CMN ICJ Toolkits Project, available at: https://blog.casematrixnetwork.org/toolkits/databases/cjad/(last accessed 19 August 2015). CMN, ‘South African High Court Delivers Al Bashir Judgment’, CMN ICJ Toolkits Project, 7 July 2015, available at: blog.casematrixnetwork.org/toolkits/eventsnews/news/ south-african-high-court-delivers-al-bashir-judgment/(last accessed on 31 August 2015). De Hoogh and Knottnerus, ‘ICC Issues New Decision on Al-Bashir’s Immunities – But Gets the Law Wrong… Again’, European Journal of International Law: Talk!, 18 April 2014, available at: www.ejiltalk.org/icc-issues-new-decision-on-al-bashirs -immunities-%E2%80%92-but-gets-the-law-wrong-again/(last accessed 19 August 2015).

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Downs and Trento ‘Conceptual Issues Surrounding the Compliance Gap’ (2004) at 21; World Bank, ‘World Development Report 2011: Conflict, Security, and Development’, World Bank, 11 April 2011, available at: http://go.worldbank.org/QLKJWJB8X0 (last accessed 20 August 2015). HRW, ‘ICC: LRA Transfer Advances Chance for Justice’, HRW, 20 January 2015, available at: www.hrw.org/news/2015/01/20/icc-lra-transfer-advances-chance-justice (last accessed on 31 August 2015). Human Rights Centre, ‘The Long Road: Accountability for Sexual Violence in Conflict and Post-Conflict Settings’, University of California, Berkely, August 2015, available at: www.law.berkeley.edu/centers/human-rights-center/(last accessed 31 August 2015). ICC-OTP, ‘Annex to the “Paper on Some Policy Issues before the Office of the Prosecutor”: Referrals and Communications’, ICC, 2004, available at: www.icc-cpi .int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/policies%20and%20strategies/Pages/annex%20to%20the%20%20_%20 paper%20on%20some%20policy%20issues%20before%20the%20office%20 of%20the%20prosecutor%20.aspx (last accessed 19 August 2015). ICC-OTP, ‘Statement to the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005)’, ICC, 12 December 2014, available at: www.icc-cpi .int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/statement/Pages/stmt-OTP-20th-report .aspx (last accessed 19 August 2015). ICC Press Release, ‘ICC Prosecutor and World Bank Vice-Presidency to Cooperate on Investigations’, ICC, 12 October 2009, ICC-OTP-20091012-PR462, available at: www .icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/press%20 releases%20(2009)/Pages/pr462.aspx (last accessed 20 August 2015). ICC-OTP, ‘Policy Paper on Preliminary Examinations’, ICC, November 2013, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20 of%20the%20prosecutor/policies%20and%20strategies/Pages/draft%20policy%20 paper%20on%20preliminary%20examinations.aspx (last accessed 19 August 2015). ICC-OTP, ‘Policy Paper on Sexual and Gender-Based Crimes’, ICC, 5 June 2014, available at: www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20 of%20the%20prosecutor/policies%20and%20strategies/Pages/Policy-Paper-onSexual-and-Gender-Based-Crimes-05-06-2014.aspx (last accessed 19 August 2015). ICC, ‘National Implementing Legislation Database’, ICC, available at: www.legal-tools .org/en/go-to-database/national-implementing-legislation-database/(last accessed 6 August 2015). International Centre for Transitional Justice, ‘The Accountability Landscape in Eastern DRC: Analysis of the National Legislative and Judicial Response to Inter­national Crimes (2009–2014)’, International Centre for Transitional Justice, July 2015, available at: www.ictj.org/publication/accountability-landscape-eastern-drc-analysis national-legislative-and-judicial-response (last accessed 9 September 2015).

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Leroy, ‘Legal Note on Bank Involvement in the Criminal Justice Sector: Legal note submitted by the Senior Vice President and Group General Counsel’, World Bank, 9 February2012,availableat:documents.worldbank.org/curated/en/2012/02/15889342/ legal-note-bank-involvement-criminal-justice-sector (last accessed 9 September 2015). UN Office of the High Commission for Human Rights, ‘Human Rights Treaty Bodies – General Comments’, UN Office of the High Commission for Human Rights, available at: www.ohchr.org/EN/HRBodies/Pages/TBGeneralComments.aspx (last accessed 15 June 2015). University of Nottingham Human Rights Law Centre, ‘Expert Workshop on Cooperation and the International Criminal Court: Report’, HRLC, 18–19 September 2014, available at: www.nottingham.ac.uk/hrlc/newsholding/news-2015/cooperation-workshop -report-published.aspx (last accessed 14 August 2015). World Bank Fragility, Conflict and Violence Group, ‘Information Note: The World Bank Group’s Harmonized List of Fragile Situations’, World Bank, July 2015, available at: www.worldbank.org/en/topic/fragilityconflictviolence (last accessed 31 August 2015).

Fostering Cooperation through Technology-Driven Tools Olympia Bekou, William E. M. Lowe and Daley J. Birkett 1 Introduction Obtaining effective cooperation is one of the major contemporary challenges to the practical functioning of the icc. States – as well as international and regional organisations and civil society – are at the forefront of this crucial task. Without effective international cooperation, the icc simply cannot function. The icc Statute requires State Parties, as well as other States under an obligation to cooperate, for example, pursuant to a unsc Resolution or an ad hoc arrangement,1 to execute cooperation requests, but provides no guidance as to how this must be done. Art. 88 icc Statute requires State Parties to have ‘procedures available under […] national law for all of the forms of cooperation’ specified under Part ix thereof.2 Without such procedures in place, States may not be able to cooperate, particularly as they may lack the requisite authority to execute cooperation requests at the national level.3 Consequently, in order that the icc might operate successfully in all of its activities, its State Parties need to incorporate elements of the icc Statute into their respective domestic legal systems: a process known as ‘implementation’.4 More generally, the dual purpose of enacting 1 See Art. 87(5) icc Statute. 2 Art. 88 icc Statute. 3 See generally Bekou, ‘A Case for Review of Article 88, icc Statute: Strengthening a Forgotten Provision’ (2009) 12 New Criminal Law Review 468. 4 See e.g. Alvarez, ‘The Implementation of the icc Statute in Argentina’ (2007) 5 Journal of International Criminal Justice 480; Boas, ‘An Overview of Implementation by Australia of the Statute of the International Criminal Court’ (2004) 2 Journal of International Criminal Justice 179; Hay, ‘Implementing the icc Statute in New Zealand’ (2004) 2 Journal of International Criminal Justice 191; Liivoja, Värk and Kastemäe, ‘Implementation of the Rome Statute in Estonia’ (2005) 16 Finnish Yearbook of International Law 70; Meierhenrich and Ko, ‘How Do States Join the International Criminal Court? The Implementation of the Rome Statute in Japan’ (2009) 7 Journal of International Criminal Justice 233; du Plessis, ‘South Africa’s Implementation of the icc Statute: An African Example’ (2007) 5 Journal of International Criminal Justice 460; Relva, ‘The Implementation of the Rome Statute in Latin American States’ (2003) 16 Leiden Journal of International Law 331; Roscini, ‘Great Expectations The Implementation of the Rome Statute in Italy’ (2007) 5 Journal of International Criminal Justice 493; Sluiter, ‘Implementation of the icc Statute in the Dutch Legal Order’ (2004)

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004304475_016

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national implementing legislation is (1) to empower States to cooperate with the Court; and (2) to enable States to exercise primary jurisdiction over the crimes listed in the icc Statute,5 thereby realising the principle of complementarity.6 At the time of writing, less than half of the 124 icc State Parties7 have adopted legislation to implement Part ix icc Statute at the domestic level,8 which may hinder them from meeting the general obligation to cooperate with the Court, contained in Art. 86 icc Statute.9 The University of Nottingham Human Rights Law Centre (hrlc)10 has developed a database that aims to respond to the challenge posed by the need to draft and adopt cooperation legislation. This chapter aims to introduce the Cooperation and Judicial Assistance Database (cjad), arguing that cjad is a useful tool for fostering improved international cooperation with the icc. In 2003, hrlc established the International Criminal Justice Unit,11 which conducts extensive research and training activities centred on strengthening the icc Statute system of justice. hrlc became the second official outsourcing partner of the icc in 2006, signing a cooperation agreement to develop a 2 Journal of International Criminal Justice 158; Terracino, ‘National Implementation of icc Crimes Impact on National Jurisdictions and the icc’ (2007) 5 Journal of International Criminal Justice 421; Triggs, ‘Implementation of the Rome Statute for the International Criminal Court: A Quiet Revolution in Australian Law’ (2003) 25 Sydney Law Review 507. 5 See Art. 5 icc Statute. 6 The focus of the present chapter rests on implementing legislation of particular importance to cooperation. For discussion of the relationship between national implementing legislation and the principle of complementarity, see e.g. Bekou, ‘Crimes at Crossroads: Incorporating International Crimes at the National Level’ (2012) 10 Journal of International Criminal Justice 677 and Kleffner, ‘The Impact of Complementarity on National Imple­ mentation of Substantive International Criminal Law’ (2003) 1 Journal of Inter­national Criminal Justice 86. 7 For a list of all icc State Parties, see icc, ‘The States Parties to the Rome Statute’, icc, available at: www.icc-cpi.int/en_menus/asp/states%20parties/(last accessed 28 July 2015). 8 See asp, Report of the Court on cooperation, 22 September 2015, icc-asp/14/27 at para 40. 9 See Art. 86 icc Statute, which provides that ‘States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court’. 10 hrlc, ‘Human Rights Law Centre’, hrlc, available at www.nottingham.ac.uk/hrlc/(last accessed 5 August 2015). hrlc possesses over twenty years’ experience in human rights research, capacity building and policy activities. It has conducted programmes worldwide and for a large variety of stakeholders, including intergovernmental organisations, governments, civil society and the judiciary. 11 See hrlc, ‘International Criminal Justice Unit’, hrlc, available at www.nottingham .ac.uk/hrlc/icjunit (last accessed 5 August 2015).

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dynamic, fully-searchable database of national legislation implementing the icc Statute as well as legal analysis thereof.12 The National Implementing Legislation Database (nild)13 forms part of the icc Legal Tools Project, an online knowledge transfer platform developed by the icc since 2002, which aims to provide access – free of charge – to ‘the most comprehensive electronic library on international criminal law and justice’, and which, at the time of writing, consists of over 95,000 electronic documents.14 Drawing upon the lessons learnt in the development of nild, cjad represents the logical next step for hrlc in the creation of technology-driven tools to further support the work of the icc. The advent of new technologies could not have merely passed by the field of law dealing with the aftermath of mass atrocity. Although conduct which now amounts to core international crimes has occurred since time immemorial, the development of international criminal law and justice as distinct disciplines are relatively recent and coincide with major technological developments. With a number of international institutions administering justice at the international level, coupled with national, hybrid as well as local initiatives, justice for atrocities has covered significant ground and has contributed towards the aim of putting an end to impunity for core international crimes. In this counter-impunity process, technology has an important role to play with regard to improving the effectiveness of the criminal process but also in terms of enhancing the capacity to investigate, prosecute and adjudicate core international crimes, both at the icc and in national jurisdictions.15 At the national level, this role extends to alleviating the challenges faced by States when implementing the icc cooperation regime into their national law. As part of a project funded by the eu and the Royal Norwegian Ministry of Foreign Affairs, hrlc partnered with the Case Matrix Network (cmn) for the development of cjad. To this end, cjad forms part of the cmn Ratification,

12 hrlc remains the Court’s longest serving outsourcing partner. 13 See icc, ‘National Implementing Legislation Database’, icc, available at: www.legal-tools .org/en/go-to-database/national-implementing-legislation-database/(last accessed 6 August 2015). 14 See icc, ‘Browse the Tools’, icc, available at: www.legal-tools.org (last accessed 30 July 2015). 15 Indeed, recognising the importance of technology, the fourth strategic goal adopted by the otp for the period 2016–2018 is to ‘further adapt the Office’s investigative and prosecutorial capabilities, as well as its professional network, to the scientific and technological environment in which it operates’. icc-otp, ‘Strategic plan, 2016–2018’, icc, 6 July 2015, available at: www.legal-tools.org/doc/7ae957/(last accessed 30 September 2015).

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Implementation and Co-operation Toolkit,16 and is supplemented by Compa­ rative Cooperation Charts and Implementation Guidelines. The Comparative Cooperation Charts statistically demonstrate information on cooperation, thereby enhancing the universal ease of access to such information, while the Implementation Guidelines provide general guidance on those cooperation obligations that require implementation and what options there are available. The Implementation Guidelines aim to both speed up the adoption of legislation and also to facilitate increased cooperation, where legislation is adopted. As the presence of adequate legislation is a crucial step in ensuring that State cooperation is forthcoming, cjad aims to provide a central information hub on all aspects of cooperation legislation. Through free universal access to cjad, users are able to gain information, review, compare, and access online information regarding the drafting of cooperation legislation. In turn, this aims to enable increased cooperation with the Court. Consequently, not only are end users able to access more precise and thorough data on cooperation requirements and implementation practices, but States are also able to compare implementation approaches of other States and amend their legislation, as necessary, in order to better comply with the icc Statute. The cmn Ratification, Implementation and Co-operation Toolkit aims to provide national legislators, State institutions, ngos and academics with tools and resources to support efforts to implement the icc Statute and to cooperate with the icc. In addition – through cjad – national bodies, including domestic legislative drafters, are better equipped to easily compare the national implementation practices of other States in the context of cooperation obligations as well as best practice indicators, thereby reducing obstacles to ratification and implementation of the icc Statute. Filtering information on cjad with the use of purposely-designed keywords can serve to clearly guide national actors when drafting legislation, as they are able to access concrete paragraph level examples, thus increasing the possibility that more legislation will be drafted. Finally, all actors engaged in matters of cooperation and judicial assistance as regards icc crimes can improve their knowledge of the icc 16 See cmn, ‘Ratification, Implementation and Co-operation Toolkit’, cmn icj Toolkits Project, available at: blog.casematrixnetwork.org/toolkits/toolkit/ratification-implementation -cooperation/(last accessed 28 July 2015). The cmn is a department of the Centre for International Law Research and Policy (cilrap), an international non-profit organisation. The cmn is also the support platform of the icc Legal Tools Project Coordinator. hrlc and the cmn have collaborated fruitfully on this basis since 2007 on the external application of the Legal Tools Project, primarily through the provision of legal research and database services as well as in-country missions.

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Statute system of international criminal justice through referral to this technology-driven knowledge information system. In this light, the present chapter will discuss the development of cjad, analysing the decisions taken in the course of its construction and the processes employed during its operation. The chapter will also briefly reflect upon the intended outputs of the database. However, before exploring how cjad can assist States in discharging their duty to implement elements of the icc Statute at the national level, several key issues need to be addressed. The following section will therefore discuss which elements of the icc Statute ought to be implemented at the national level, whether there is a time limit by which States should adopt implementing legislation and the options available when implementing. This section will include a brief analysis of the advantages and disadvantages of adopting an all-encompassing piece of legislation, incorporating provisions on crimes and cooperation, as opposed to incorporating the icc Statute into pre-existing legislation by amendment. 2

Implementing the International Criminal Court Statute

As indicated above, without State cooperation the icc simply cannot function effectively, not only because the Court is reliant upon States to arrest and surrender suspects subject to an icc arrest warrant, but also because its complementary jurisdiction depends on State action or inaction. Although icc State Parties are, of course, subject to a positive obligation under Art. 88 icc Statute to ‘ensure that there are procedures available under their national law for all of the forms of cooperation’,17 there is no equivalent provision with regard to the substantive law provisions. In fact, when implementing, States have tended to replicate the wording of the icc Statute, to go beyond its requirements or to fall short thereof. To enact a piece of implementing legislation in a particular State necessitates a thorough analysis of all issues regarding implementation in a manner that deals with individual State concerns. The icc Statute does not specify when – or indeed how – its provisions ought to be implemented at the domestic level. A margin of discretion is therefore afforded to its State Parties to this end. However, since the entry into force of the icc Statute on 1 July 2002, its State Parties are under an obligation to cooperate with the Court. As a result, should a State be without legislation enabling it to fulfil this obligation – with regard to arrest and surrender, for example – it risks violating Art. 86 icc 17

Art. 88 icc Statute.

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Statute, which contains the general obligation to cooperate with the Court.18 In practice, most State Parties ratify the icc Statute before implementing the relevant provisions thereof. On the other hand, both the United Kingdom and the Philippines are examples of States that internalised the icc Statute before ratification. The latter approach has (at least) one significant advantage. By implementing relevant parts of the icc Statute first – and ratifying later – the State in question is able to execute any cooperation requests originating from the Court immediately after ratification. The icc Statute is a highly complicated legal instrument, which does not contain a provision prescribing a particular implementation approach, thereby affording States wide discretion when it comes to implementing it at the domestic level.19 One option available to States when attempting to internalise (elements of) the icc Statute at the national level is to draft a single, comprehensive piece of legislation incorporating all relevant provisions into their domestic law. To adopt a single, all-encompassing act addressing all iccrelated matters creates a single point of reference for legal actors in search of information on matters of international criminal law at the national level. Several States have followed this method, including Uganda,20 Samoa21 and Ireland.22 An alternative approach is to incorporate the relevant elements of the icc Statute into the pre-existing legal framework by – for example – amending national criminal codes and codes of criminal procedure. This method can be particularly useful where pre-existing legislation already covers elements of the icc Statute and can therefore be amended to incorporate further aspects 18 19

20 21 22

See Art. 86 icc Statute. A variety of approaches has been followed to this end. See e.g. Cassese and Delmas-Marty, Juridictions Nationales et Crimes Internationaux, (Paris: puf, 2002); Fischer, Kress and Lüder (eds), International and National Prosecution of Crimes under International Law (Berlin: Arno Spitz, 2001); Kress and Lattanzi (eds), The Rome Statute and Domestic Legal Orders, Volume i, General Aspects and Constitutional Issues (Baden-Baden: Nomos, 2000); Kress, Broomhall, Lattanzi and Santori (eds) The Rome Statute and Domestic Legal Orders, Volume ii, Constitutional Issues, Cooperation and Enforcement (Baden-Baden: Nomos, 2005); Neuner (ed), National Legislation Incorporating International Crimes; Approaches of Civil and Common Law Countries (Berlin: Berliner Wissenschafts-Verlag, 2003). See Uganda, ‘International Criminal Court Act 2010’, icc, 25 June 2010, available at: www .legal-tools.org/doc/9c5540/(last accessed 1 July 2015). See Samoa, ‘International Criminal Court Act 2007’, icc, 9 November 2007, available at: www.legal-tools.org/doc/077ce7/(last accessed 1 July 2015). See Ireland, ‘International Criminal Court Act 2006’, icc, 31 October 2006, available at: www.legal-tools.org/doc/0bc122/(last accessed 1 July 2015).

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without the need for significant re-drafting. For example, before the entry into force of the icc Statute, States may have had legislation covering extradition requests or the execution of requests from existing international criminal tribunals, such as the ad hoc icty and ictr. Among other States, Senegal followed this approach when implementing Part ix icc Statute into its respective national law.23 Several intergovernmental organisations, including the Commonwealth Secretariat24 and the South African Development Community,25 have attempted to prepare model laws implementing the icc Statute to be adopted by States. Such model laws provide a template that States may use (and, indeed, have used) in drafting their own national implementing legislation.26 However, although such model laws may prove useful in highlighting particular issues – providing guidance and serving as a template from which to work – they will inevitably need to be amended to a greater or lesser extent as they cannot cover all eventual difficulties that may arise in different national legal systems. As a result, States have largely favoured the adoption of their own national implementing legislation. The abovementioned approaches are not mutually exclusive. Indeed, a combination of the above approaches can be, and has been, followed by States when implementing (elements of) the icc Statute. For example, Canada implemented the icc cooperation regime into its national legal framework by amending its existing legislation as far as possible, while also enacting a new, specific piece of legislation to incorporate icc crimes into Canadian law.27 All of the foregoing approaches can benefit from comparing other States’ legislation using cjad. Effective national implementation of the icc Statute depends on many State-specific factors. There is no ‘one size fits all’ approach to implementation and a variety or combination of different methods may be appropriate, depending on the particular circumstances of the State in question. The  foregoing analysis aimed to highlight some of the issues surrounding the implementa23

See Senegal, ‘Loi n° 2007–05 du 12 février 2007 modifiant le Code de la Procédure pénale relative à la mise en œuvre du Traité de Rome instituant la Cour pénale internationale’, icc, 12 February 2007, available at: www.legal-tools.org/doc/dbe39e/(last accessed 1 July 2015). 24 Reproduced in Commonwealth Secretariat, ‘International Criminal Court (icc) Statute and implementation of the Geneva Conventions’ (2011) 37 Commonwealth Law Bulletin 681. 25 Reproduced in Maqungo, ‘The establishment of the International Criminal Court: sadc’s participation in the negotiations’ (2000) 9 African Security Review 42 at 51–53. 26 For example, among other States, Samoa used the model law prepared by the Commonwealth Secretariat in drafting its national implementing legislation. 27 See Canada, ‘Crimes Against Humanity and War Crimes Act’, icc, 29 June 2000, available at: www.legal-tools.org/doc/7b89e0/(last accessed 1 July 2015).

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tion of the icc Statute at the national level. Without doubt, the complexities associated with drafting national implementing legislation pertaining to cooperation – coupled with the desire to develop an effective knowledge system to that effect – motivated the creation of cjad, which is examined in the following section. 3

The Need for the Cooperation and Judicial Assistance Database

cjad has been created following a request to this end by The Hague Working Group of the Bureau of the asp. According to the Report of the Bureau on cooperation: Recalling […] previous resolutions and declarations, the importance of implementing legislation was underlined both by States and by the Court. The need for facilitation of exchange of information relating to implementing legislation was raised by some parties. In this regard, it was suggested that the National Implementing Legislation Tool of the Court’s Legal Tools Database could be further developed to facilitate the retrieval of information about national implementing legislation relevant to States’ obligations to cooperate with the Court. It was suggested that such a function could be beneficial both for the Court in its communication with States, and also for States in the drafting of new implementing legislation. Moreover such a function could help identify and share information about best practices.28 Now that over 40% of State Parties have adopted national legislation implementing the icc Statute cooperation regime into their national legal frameworks, there is a rich source of comparative information about implementation strategies. This information is an important resource for those States that wish to adopt – or that are currently in the process of adopting – such legislation. However, a number of possible hurdles remain for these States, including time, the complexity of the icc Statute and the peculiarities of the particular legal system in the State seeking to implement (elements of) the icc Statute regime into their national law. In response to these challenges, when implementing the icc Statute at the national level, States are able to utilise ICC-related legislation already adopted by other States. Indeed, if their legal systems share common features – such as, 28

asp, Report of the Bureau on cooperation, 23 October 2012, icc-asp/11/28 at para 10.

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inter alia, Commonwealth States, States from the same geographic region or States sharing similar legal traditions – it may even be advisable for a State to adopt and amend legislation enacted by another State. A significant advantage of following this method stems from the fact that any legislation that has been in force for a number of years is likely to have been subject to scrutiny and therefore amended in this light.29 To respond to this pressing need, all national provisions related to cooperation with the icc, as well as the Agreement on the Privileges and Immunities of the International Criminal Court (apic),30 are freely accessible online through the newly-developed cjad. Before providing an overview of the cjad methodology, it is crucial to identify the primary functions and beneficiaries of the database, which can be summarised as follows: (a) Helping States to fulfil their obligation to cooperate with the icc. Coop­ eration between States and the icc is a fundamental element of the icc Statute system of international criminal justice, with implementing legislation a prerequisite for a State to be able to cooperate effectively with the Court. (b) Supporting national processes for the drafting of legislation. cjad is an invaluable tool for national legislators who have not yet adopted, but are considering or are engaging in the drafting of implementing legislation. cjad enhances their capability to draft effective legislation by drawing upon the experiences of fellow icc State Parties with legislation already in force. As national legislators are often under-resourced, with limited capacity to evaluate the legislative approaches of other States or assimilate the complexities of cooperation with the icc into national law, such a tool is of particular value. cjad can also be of assistance to legislators in States which are not Party to the icc Statute, but which are in the process of considering accession to it, by providing them with examples of implementing obligations and assisting them in the assessment of national capacity. 29

30

See Bekou, ‘Regionalising icc Implementing Legislation: A Viable Solution for the AsiaPacific Region’? in Boister and Costi (eds), Regionalising International Criminal Law in the Pacific (Wellington: New Zealand Association for Comparative Law, 2006) 117 at 137. asp, ‘Agreement on the Privileges and Immunities of the International Criminal Court’, icc, 9 September 2002, available at: www.legal-tools.org/doc/6eefbc/(last accessed 1 July 2015). The apic is a multilateral agreement that entered into force on 22 July 2004. The apic, inter alia, grants privileges and immunities to the Court, its officials, personnel, counsel, witnesses, victims, experts, State representatives participating in icc proceedings or the asp, as well as other persons whose presence is required at the seat of the Court.

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(c) Monitoring the uptake and coverage of the icc Statute cooperation provi­ sions. States that already have legislation incorporating the cooperation provisions of the icc Statute may wish to view how this legislation compares with other States’ approaches, in order to evaluate whether an amendment may be necessary, or indeed desirable. By utilising cjad, such States are able to monitor the impact of their legislation on other States and to undertake necessary amendments if the content of the icc Statute or the apic were to change, or if improvements to the existing legislation are deemed necessary. (d) Facilitating the work of ngos and wider civil society organisations. Regu­ lators at the national and international levels will find cjad to be a useful tool, providing them with easy access to comparative knowledge vital to monitor national implementation of the cooperation provisions of the icc Statute and to effectively plan advocacy campaigns. (e) Enhancing comparative research. cjad aims to offer a ‘one-stop-shop’ comparative research tool, affording researchers unprecedented access to information not readily available elsewhere. Section level decompositions can be used by States, ngos and private citizens in order to understand the cooperation procedures in a particular State. Historians may use the document level information to construct accurate chronologies and track diplomatic relations, whereas social scientists may use the metadata itself to study diplomatic and institutional constraints on State action. For example, ratification dates are data for political scientists interested in diplomatic pressure and international organisations, whereas metadata may be useful for national and international lawyers interested in comparing the structure of implementation across a particular region. (f) Aiding harmonisation, convergence and consistency in cooperation with the icc. cjad represents an important tool in enhancing consistency in national cooperation with the icc, leading to improvements in both the number and speed of successfully executed requests for cooperation from the icc and contributing to the fight against impunity. 4

Building on Strong Foundations: The National Implementing Legislation Database

Although an independent tool developed at the request of The Hague Working Group of the Bureau of the asp, cjad is closely related to nild, which was also

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created – and is still maintained – by hrlc.31 The success of nild, which has become the central information hub for legislation implementing the icc Statute at the national level, has informed the development of cjad. However, given the importance and complexity of cooperation, cjad exclusively focuses on legislation incorporating Part ix icc Statute, the apic and related instruments. In this way, cjad can better serve the needs of its end users. A Choosing a Format: Data Matrix or Relational Database? The desire for an effective way to accurately and comprehensively conduct comparative research analysis of national implementing legislation is better achieved through detailed data analysis using multi-disciplinary approaches, namely political science methodologies and data-analysing techniques. There are two forms of data structures not often used in academic circles, but which are used for commercial purposes. In the former, structured metadata are added, whereas in the latter, data is structured ‘relationally’. Data available on cjad are generated through the use of a ‘relational’ database. In order to understand the value of a relational database – and why this has been chosen for cjad – it is worth examining several extremes. The first extreme consists of qualitative data. A database constructed in this way would be a collection of documents.32 In such an instance, the data collected is not deconstructed in any way at all. The second extreme consists of quantitative data. Collection of quantitative data involves a data matrix, which, in its simplest form, could be an Excel spreadsheet. A matrix generated this way would contain headings and each of the (infinite number of) rows would contain the relevant data of interest. Although a matrix works well with, for example, historical records, it does not provide maximum functionality when it comes to information that can be found within the documents the matrix contains. With a tabular form, there can be only one matrix per table at the time. Moreover, a data matrix assumes that the person constructing the data knows what each of the rows represents before the data is inputted.33 In this type of database, all data is structured as a table. If, however, a different angle is needed, the tables need to be downloaded and reworked to produce the desired outcomes.

31

32 33

See Bekou, ‘Building Databases for the icc Legal Tools Project: Data Structures and the National Implementing Legislation Database’ in Bergsmo (ed), Active Complementarity: Legal Information Transfer (Oslo: Torkel Opsahl Academic EPublisher, 2011) 153. E.g. data sorted by State. Demographic data, for instance, can be adequately depicted using such a data structure.

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cjad adopts a relational structure rather than a data matrix to ensure a radical degree of flexibility.34 Most data sets used in political science and international relations use a data matrix or spreadsheet in order to provide raw data for analysis, including the datasets from the Correlates of War Project, including Militarized Interstate Disputes,35 and International Governments in the Global System.36 In contrast, the primary methodological innovation in the construction of cjad is the deliberate mix of qualitative information, variableoriented quantitative data and legal metadata in the same structure. This innovative combination affords much greater flexibility to those researchers who not only wish to conduct research across disciplinary boundaries, but also across the qualitative/quantitative divide within the social sciences. The use of relational database technology is therefore not merely a way to flexibly express familiar information, but a direct consequence of the need to effectively integrate many types of data into a single structure. One of the desirable consequences of investing – in advance – in a more complex data representation is that cjad is able to generate subsets of data tailored to specific research ­questions, in a form rather more familiar to researchers. For example, purely qualitative research may require just a subset of the collection of cooperation legislation, which can be offered in the form of document collection. On the other hand, a quantitative comparative or international relations research question may require a flat variable-oriented representation of the State or international organisation information in the database. This can be provided by selecting the relevant information and using standard database technology (for example, sql queries) to generate a ‘flattened’ dataset suitable for manipulation in standard statistical software. Although a relational structure is rather more complex to design than the typical data matrix or spreadsheet, it provides substantial flexibility and choice of search options. For instance, a data matrix would be constructed by joining many different tables of information and could only be analysed according to the routes specified when finishing this process. This format is therefore of particular use to quantitative research. A relational structure consequently presents clear advantages. However, certain disadvantages may also have to be identified. The first and perhaps the most important of those is the issue of cost. The creation of a relational database incurs start-up costs. Moreover, the 34 Date, An Introduction to Database Systems (Boston: Pearson/Addison-Wesley, 2004). 35 See Jones, Bremer and Singer, ‘Militarized Interstate Disputes, 1816–1992: Rationale, Coding Rules, and Empirical Patterns’ (1996) 15 Conflict Management and Peace Science 163. 36 See Wallace and Singer, ‘International Governmental Organization in the Global System, 1815–1964’ (1970) 24 International Organization 239.

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relationships among documents contained in the database must be determined in advance. That means that all possible questions need to be generated and documents organised in all possible ways at an early stage of the work. The third difficulty relates to a lack of expertise. When it comes to building databases, there is an inherent institutional-sociological miscommunication. As a rule, computer scientists do not regularly interact with researchers in the social sciences. Although commercial legal products used by academics37 utilise this type of software, legal academics do not use this form of software very often as such. The scarcity of relational databases in social sciences may, nevertheless, be explained by the lack of infrastructure. Many social science and law departments do not have such resources in situ or the ability to hire them. This leads to the final reason why relational databases are not common in legal research, which is one of possibility. There is no realisation that such a data structure is possible. If this has not been pointed out to the researcher, it is not possible for him/her to choose such a solution if he/she does not possess such knowledge. Comparing cjad to a number of other text database tools from social sciences,38 it was concluded that, although their text and search representations were quite adequate, they could not easily represent the other types of information cjad is able to represent. Also, as proprietary technologies it was felt that that would limit dissemination. Most importantly, they were not relational, which limited their ability to generate flat datasets for subsequent statistical analysis. Like most commercial content and document management solutions, these tools are hierarchically designed so as to resemble file-folder relationships. The non-relational aspect of these kinds of representations is problematic because the end users may wish to be able to generate textoriented data for some purposes, but more attribute-oriented data for other purposes, without having to squeeze both types of information into a textual format. Moreover, the information stored on cjad is genuinely non-­hierarchical in the sense that it is not exclusively structured around pieces of implementing legislation, or around States or organisations of which they are members. To ‘root’ this data using any one of these units of analysis would simply make it harder for researchers with orthogonal interests to manipulate the data. Designing a relational database specifically for cjad – based on the experience of the associated nild – was therefore the optimal solution.

37 38

Such as Westlaw, LexisNexis and HeinOnline. E.g. NVivo or atlas.ti.

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B Methodology (i) Sourcing Legislation Having explored the reasons behind developing cjad in the chosen format, the following section will provide a detailed overview of the steps taken and processes that have been established in operating this technology-driven tool. The point of departure is the sourcing of legislation. Desktop research is conducted from the outset of the project in order to obtain any new or amended national implementing legislation pertaining to cooperation. Obtaining officially sanctioned versions of national legislation in a timely fashion is always a challenge for the research team. However, a particularly useful avenue for obtaining new legislation results from attending the annual asp meetings, at which States notify attendees of their intention to begin to draft, or the status of, their icc-related legislation.39 By attending these meetings, the hrlc team is able to make contact with relevant States, icc staff and civil society in order to verify the status of the implementation process in a particular State.40 (ii) Populating the Database After legislation has been sourced, the next stage in the process, namely the ‘marking’ of legislation, commences. ‘Marking’ is understood to be the process by which each piece of legislation is read alongside a list of keywords, following which the appropriate one(s) are selected and matched with corresponding deconstructed pieces of text, known as ‘spans’. Attaching specific keywords to each paragraph of legislation in this way makes the relevant text discoverable in the database through the search function. There are approximately 200 purposely-designed keywords (legal metadata) pertaining to cooperation and judicial assistance contained in cjad. The keywords not only reflect the legal structure of the icc Statute but also provisions found in national legislation and the apic. Each keyword generally corresponds to an article of the icc Statute (or the apic), but may also represent finer decompositions of an article (or articles) thereof. In addition, procedures found in domestic law, but which do not necessarily pertain to a provision of the icc Statute or the apic, are also represented by relevant keywords.41 In order to ensure consistency in the cjad marking process, a ‘codebook’ – a document containing the keywords, their 39

40 41

Indeed, State Parties have been encouraged by the asp to complete a questionnaire on the measures carried out at the national level in respect of national implementing legislation. See asp, Review Conference, 25 March 2010, icc-asp/8/Res.9 at para 6. On the role of civil society vis-à-vis national implementing legislation, see Chapter 12. The suffixes ‘– icc proceedings’, ‘– national procedures for icc proceedings’, and ‘– national proceedings’ are attached to certain categories of keywords.

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relationship to the corresponding provisions of the icc Statute (or the apic), their use, as well as suggestions of other keywords that could be considered – has been developed alongside cjad for internal use by the hrlc marking team. Spans, which are taken directly from sourced legislation, are ‘tagged’ with one or more of the abovementioned keywords. The presence of documents and their decomposition into spans gives cjad large amounts of textual content. For example, the relevant provision of a piece of national legislation referring to the ‘Other forms of cooperation’ listed in Art. 93 icc Statute is tagged with the ‘Cooperation’ and ‘Other forms of cooperation’ keywords, as well as with any of the following keywords, among others, depending on the context: ‘Identification and whereabouts of persons – national procedures for icc proceedings’,42 ‘Taking of evidence – national procedures for icc proceedings’,43 ‘Service of documents – national procedures for icc proceedings’,44 ‘Search and seizure – national procedures for icc proceedings’45 or ‘Freezing of assets – national procedures for icc proceedings’.46 When marked and checked, national legislation is added to cjad both in full document form (in all available languages) and as individual spans (in English), according to the procedure described in an inputting manual developed for internal use by hrlc inputters. The inputters use a user-friendly administration site, which can be accessed remotely by multiple users at the same time in order to complete the inputting task as quickly and efficiently as possible. (iii) Ensuring Consistency through Checks and Balances In a process involving large numbers of documents and keywords, as well as multiple legal systems, languages and researchers, inconsistencies or (unintentional) mistakes are bound to occur. To eliminate their occurrence – as well as ensuring that when mistakes are made, they are (a) corrected and (b) not repeated – a rigorous checking mechanism has been put in place at every stage of the process. When a new piece of legislation is first identified, it is checked for relevance, accuracy and reliability of the source prior to it being marked by a senior member of the team. After it has been marked, each of the keywords allocated 42 43 44 45 46

See Art. 93(1)(a) icc Statute. See Art. 93(1)(b) icc Statute. See Art. 93(1)(d) icc Statute. See Art. 93(1)(h) icc Statute. See Art. 93(1)(k) icc Statute.

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thereto is checked for errors, inconsistencies or omissions, which are rectified prior to inputting. When legislation has been inputted, spot-checks are conducted to ensure that no errors have been made in the inputting process. Moreover, a careful comparison of the results yielded through particular keyword searches reveals whether particular provisions have been tagged correctly, when read apart from the context of the particular legislation and compared with all other provisions tagged with the same keyword. A log of changes made during this process is maintained at all times. Finally to this end, a worksheet with outstanding tasks and the use of a dedicated calendar where individual tasks and completion targets are logged is accessible by all researchers at all times and serves as a valuable tool of monitoring progress and outstanding tasks. (iv)

Conducting Searches on the Cooperation and Judicial Assistance Database cjad aims to serve as a fully searchable database able to bring together data pertaining to cooperation with the icc in a number of ways. Data is searchable by State, document, keyword, corresponding icc Statute article or specific keyword-State relationship. First, documents are available in their original format (either in Word or pdf format) with a free text search function. Second, each document is structured with legal metadata. These metadata constitute the common denominator for describing content across cjad. Third, text spans for each piece of legislation available on cjad are searchable using keywords corresponding to different aspects of cooperation and judicial assistance, including apic provisions. Because each span is labelled or tagged with as many keywords as is relevant, spans are searchable to the end user in a variety of ways. Fourth, the same segment is searchable according to the particular provision of the icc Statute or the apic implemented thereby. This produces comparative results, which may be useful for end users interested in comparing the implementation approach adopted by a particular State as regards specific issues, for example, the surrender of persons to the icc. Finally in this regard, if the end user wishes to see how a specific keyword has been implemented by a particular State, for example, how ‘Spain’ has implemented ‘Provisional arrest’, he or she can choose the State and keyword from the two drop-down menus available in the keyword-State search function. Another innovation found in cjad is the inclusion of ‘smart relationships’. These consist of cross-referencing among keywords in the form of suggestions to the end user as to other keywords that may be of interest. This prompts users to easily further refine their searches or to identify related subject matters, allowing comparative analysis where relevant to their purposes. For instance,

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to continue with the ‘Other forms of cooperation’ example described above, cjad not only suggests to the user all potentially relevant keywords related to Art. 93(1) icc Statute, but also directs the attention of the user to the ‘International assistance in criminal matters’ keyword, which may also be of relevance for his or her research. (v) The Limits of the Cooperation and Judicial Assistance Database The diversity of raw data, coupled with the inherent differences of the legal systems from which implementing legislation originates, require strong comparative legal research skills and the development of procedures that guarantee a fair, accurate representation of data on the database. The use of a ‘codebook’ to mark legislation as well as clear management, checking and accountability structures aim to standardise the approach and to overcome the challenge of working with a variety of legal traditions and outside the context of a particular legal system. The use of research assistants with specific knowledge and expertise, as well as a strong commitment towards the project, an eye for detail and the key skill of precision are important in that respect. Another challenge faced by this project is a linguistic one. Whilst cjad is capable of representing text in multiple languages and whole documents are available already also in the original language, searches can currently only be conducted in English.47 Thanks to a truly international – and multilingual – team comprising hrlc staff and students undertaking the LL.M. degree in International Criminal Justice and Armed Conflict at the University Nottingham, who volunteer for this project, the team has been able to work in a number of languages facilitating the collection of information. 5

Concluding Remarks

cjad is a versatile tool that serves a multitude of purposes. It contains a comprehensive and up-to-date collection of the raw data of national legislation that has been adopted by States in relation to the cooperation provisions of the icc Statute and the apic. Crucially, it includes a fully-searchable relational database of all national legislation, enabling users to efficiently identify relevant provisions or sections of any, or all, pieces of legislation, according to approximately 200 purposely-designed keywords or articles of the icc Statute.

47

It would be desirable, dependent on funding, to make cjad fully available in French, Spanish and possibly other languages in the future.

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Smart relationships and cross-referencing among keywords further facilitate searches. cjad is able to illuminate the variety and diversity of approaches adopted by States when incorporating the icc Statute cooperation regime into national law and to highlight the strengths and weaknesses of different implementation laws through a pre-defined evaluative framework using political science/data analysis techniques. Finally to this end, cjad constitutes a suitable example for showcasing and appreciating the use and value of datasets in legal research, a recent phenomenon in international criminal justice. Given the vast and ongoing importance of cooperation, there is an evident need to have a dedicated open access resource providing detailed information on national legislation related to cooperation. Prior to the development of cjad, States wishing to discharge their cooperation obligations faced a difficult task to identify which of the icc Statute provisions need to be implemented and how this should be done. Moreover, comparing their respective positions with other States in similar legal or material situations could not have easily been done, as this information was disparate and not always accessible. Using cjad, States are now able to perform these tasks with ease, quickly and at no cost at all to them. In addition, following the creation of cjad, all four organs of the icc – the otp, Chambers, Registry and Presidency – are able to access a purpose-built database aimed at facilitating the execution of their mandate by providing access to precise data on national implementation practices related to cooperation. Finally, national criminal justice institutions frequently face a breadth of capacity and material resource limitations, which can be directly reduced through access to thorough, objective knowledge tools on the legal requirements of icc cooperation. Through the use of cjad, it is the hope of the present authors that this knowledge gap will be bridged and that better cooperation with the icc will be facilitated. List of References Books and Journals

Alvarez, ‘The Implementation of the ICC Statute in Argentina’ (2007) 5 Journal of International Criminal Justice 480. Bekou, ‘Regionalising ICC Implementing Legislation: A Viable Solution for the AsiaPacific Region’? in Boister and Costi (eds), Regionalising International Criminal Law in the Pacific (Wellington: New Zealand Association for Comparative Law, 2006) 117. Bekou, ‘A Case for Review of Article 88, ICC Statute: Strengthening a Forgotten Provision’ (2009) 12 New Criminal Law Review 468.

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Bekou, ‘Building Databases for the ICC Legal Tools Project: Data Structures and the National Implementing Legislation Database’ in Bergsmo (ed), Active Comple­ mentarity: Legal Information Transfer (Oslo: Torkel Opsahl Academic EPublisher, 2011) 153. Bekou, ‘Crimes at Crossroads: Incorporating International Crimes at the National Level’ (2012) 10 Journal of International Criminal Justice 677. Boas, ‘An Overview of Implementation by Australia of the Statute of the International Criminal Court’ (2004) 2 Journal of International Criminal Justice 179. Cassese and Delmas-Marty, Juridictions Nationales et Crimes Internationaux, (Paris: PUF, 2002). Commonwealth Secretariat, ‘International Criminal Court (ICC) Statute and implementation of the Geneva Conventions’ (2011) 37 Commonwealth Law Bulletin 681. Date, An Introduction to Database Systems (Boston: Pearson/Addison-Wesley, 2004). Du Plessis, ‘South Africa’s Implementation of the ICC Statute: An African Example’ (2007) 5 Journal of International Criminal Justice 460. Fischer, Kress and Lüder (eds), International and National Prosecution of Crimes under International Law (Berlin: Arno Spitz, 2001). Hay, ‘Implementing the ICC Statute in New Zealand’ (2004) 2 Journal of International Criminal Justice 191. Jones, Bremer and Singer, ‘Militarized Interstate Disputes, 1816–1992: Rationale, Coding Rules, and Empirical Patterns’ (1996) 15 Conflict Management and Peace Science 163. Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’ (2003) 1 Journal of International Criminal Justice 86. Kress and Lattanzi (eds), The Rome Statute and Domestic Legal Orders, Volume I, General Aspects and Constitutional Issues (Baden-Baden: Nomos, 2000). Kress, Broomhall, Lattanzi and Santori (eds) The Rome Statute and Domestic Legal Orders, Volume II, Constitutional Issues, Cooperation and Enforcement (BadenBaden: Nomos, 2005). Liivoja, Värk and Kastemäe, ‘Implementation of the Rome Statute in Estonia’ (2005) 16 Finnish Yearbook of International Law 70. Maqungo, ‘The establishment of the International Criminal Court: SADC’s participation in the negotiations’ (2000) 9 African Security Review 42. Meierhenrich and Ko, ‘How Do States Join the International Criminal Court? The Implementation of the Rome Statute in Japan’ (2009) 7 Journal of International Criminal Justice 233. Neuner (ed), National Legislation Incorporating International Crimes; Approaches of Civil and Common Law Countries (Berlin: Berliner Wissenschafts-Verlag, 2003).

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Relva, ‘The Implementation of the Rome Statute in Latin American States’ (2003) 16 Leiden Journal of International Law 331. Roscini, ‘Great Expectations The Implementation of the Rome Statute in Italy’ (2007) 5 Journal of International Criminal Justice 493. Sluiter, ‘Implementation of the ICC Statute in the Dutch Legal Order’ (2004) 2 Journal of International Criminal Justice 158. Terracino, ‘National Implementation of ICC Crimes Impact on National Jurisdictions and the ICC’ (2007) 5 Journal of International Criminal Justice 421. Triggs, ‘Implementation of the Rome Statute for the International Criminal Court: A Quiet Revolution in Australian Law’ (2003) 25 Sydney Law Review 507. Wallace and Singer, ‘International Governmental Organization in the Global System, 1815–1964’ (1970) 24 International Organization 239.

Other Documents

ASP, Report of the Bureau on cooperation, 23 October 2012, ICC-ASP/11/28. ASP, Report of the Court on cooperation, 22 September 2015, ICC-ASP/14/27. ASP, Review Conference, 25 March 2010, ICC-ASP/8/Res.9.

Online Materials

ASP, ‘Agreement on the Privileges and Immunities of the International Criminal Court’, ICC, 9 September 2002, available at: https://www.legal-tools.org/doc/6eefbc/(last accessed 1 July 2015). Canada, ‘Crimes Against Humanity and War Crimes Act’, ICC, 29 June 2000, available at: www.legal-tools.org/doc/7b89e0/(last accessed 1 July 2015). CMN, ‘Ratification, Implementation and Co-operation Toolkit’, CMN ICJ Toolkits Project, available at: blog.casematrixnetwork.org/toolkits/toolkit/ratificationimplementation-cooperation/ (last accessed 28 July 2015). HRLC, ‘Human Rights Law Centre’, HRLC, available at www.nottingham.ac.uk/ hrlc/(last accessed 5 August 2015). HRLC, ‘International Criminal Justice Unit’, HRLC, available at www.nottingham.ac .uk/hrlc/icjunit (last accessed 5 August 2015). ICC, ‘Browse the Tools’, ICC, available at: www.legal-tools.org (last accessed 30 July 2015). ICC, ‘National Implementing Legislation Database’, ICC, available at: www.legal-tools .org/en/go-to-database/national-implementing-legislation-database/(last accessed 6 August 2015). ICC, ‘The States Parties to the Rome Statute’, ICC, available at: www.icc-cpi.int/en_ menus/asp/states%20parties/(last accessed 28 July 2015). ICC-OTP, ‘Strategic plan, 2016–2018’, ICC, 6 July 2015, available at: www.legal-tools.org/ doc/7ae957/(last accessed 30 September 2015).

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Ireland, ‘International Criminal Court Act 2006’, ICC, 31 October 2006, available at: www.legal-tools.org/doc/0bc122/(last accessed 1 July 2015). Samoa, ‘International Criminal Court Act 2007’, ICC, 9 November 2007, available at: www.legal-tools.org/doc/077ce7/x(last accessed 1 July 2015). Senegal, ‘Loi n° 2007–05 du 12 février 2007 modifiant le Code de la Procédure pénale relative à la mise en œuvre du Traité de Rome instituant la Cour pénale internationale’, ICC, 12 February 2007, available at: www.legal-tools.org/doc/dbe39e/(last accessed 1 July 2015). Uganda, ‘International Criminal Court Act 2010’, ICC, 25 June 2010, available at: www .legal-tools.org/doc/9c5540/(last accessed 1 July 2015).

Index Access to information Office of the Prosecutor 64 Action Plan European Union 299, 301, 311 Ad hoc agreements air transport 281 non-State Parties 196 Ad hoc arrangements protection of victims and witnesses 175–6 Ad hoc tribunals see also International Criminal Tribunal for Rwanda, International Criminal Tribunal for the former Yugoslavia Belgian Central Authority, and 269–70 Belgian Task Force for International Criminal Justice, and 274 Admissibility postponement of execution in Belgium 289–90 States, role of 154–5 African Union remedies for non-compliance 44 strengthening international cooperation 341–3 tensions with icc 135–40 Aggression, crime of jurisdiction 13 Agreement on the Privileges and Immunities of the icc Cooperation and Judicial Assistance Database 404 Al Bashir, Omar Hassan Ahmad see also Darfur, Sudan arrest warrant for 21–8 effect of non-cooperation 374–5 eu response to non-cooperation, and  307–8 failure to arrest assessment of non-compliance 157 discretionary powers 90–3 findings to date 82–4 South Africa 352–3 Nigeria 354–5 South Africa 350–2

timing of applications for judicial findings 86–9 politics of State cooperation background 121–2 comparison to Kenyatta case 115–16 legal dimensions of cooperation 122–4 non-compliance 124–30 Al-Senussi, Abdullah see also Libya admissibility challenge 216 arrest warrant for 28–9 assessment of non-compliance by States 158–9 concurrent national proceedings 213 sanctions list of unsc 167 Ali, Mohammed Hussein summons to appear before icc 31, 32, 118 Amicus curiae briefs submission of 155 Anti-corruption treaties reparation, use in 244 Appeal rights lack of 99–100 Appeals Chamber reparation, and 228–9 Arrest and surrender requests behavioural effects of cooperation 371 emergency arrest in case of interim release 285–7 enforcement 62 non-State parties, cooperation from  72–3 relevant Statute provisions 61 scope of application of icc cooperation regime 8 Arrest strategies appointment of Rapporteur on arrest strategies 261 civil society efforts to strengthen cooperation 349–50 Hague Working Group 260–2 Arrest warrants contact with persons subject of

418 un Guidance 24 Asian-African Legal Consultative Organisation transparency, maintaining compliance through 382 Assembly of State Parties see also Facilitator for Cooperation in the Hague Working Group appeal rights, lack of 99 Bureau of the Facilitator on Cooperation assets subject to sanctions 240 report on activities of Working Group on Cooperation 250 civil society efforts to strengthen cooperation 330–6 enforcement judicial findings of non-compliance 105–8 obligations 62–3 role in 140–3 expediting responses to non-cooperation 203 interpretation of Rules 377 plenary discussions during meetings 251, 334–5 referrals to 159–61 Assets identification, tracing, freezing and seizure of behavioural effects of cooperation 371 Belgian response to 285 Bemba case 165–6 complexity of system 161–4 cooperation with other actors 166–8 Hague Working Group 255–6 Kenyatta case 164–5 reparation competing claims 242–4 un sanctions, and 240–2 Belgium bilateral agreements on enhanced cooperation close cooperation with the otp 281 enforcement of sentences 282 generally 279–80 protection and relocation of witnesses 280

Index protection of witnesses abroad 280–1 provisional release 282–3 tools to improve cooperation 292 transport of detained witnesses or arrested suspects 281–2 Central Authority for Cooperation communication channels 271–2 consultations 273–4 establishment of 269–71 execution of requests for cooperation 272–3 tools to improve cooperation 290 conclusions 294 emergency arrest in case of interim release 285–7 introduction 269 orders for contribution 285 postponement of execution admissibility challenge under consideration 289–90 generally 287 interference with on-going investigations 289 national security issues 288–9 provisions for certain requests for cooperation emergency arrest in case of interim release 285–7 generally 283–4 orders for contribution 285 seizure of assets 285 summons to appear 284–5 refusal of request for assistance admissibility challenge under consideration 289–90 generally 287 interference with on-going investigations 289 national security issues 288–9 seizure of assets 285 summons to appear 284–5 Task Force for International Criminal Justice generally 274 meetings on classified cases 278–9 meetings on specific cases 277–8 membership of 275–7 plenary meetings 274–5 tools to improve cooperation

Index bilateral agreements 292 Central Authority for Cooperation 290 coordination meetings 291–2 focal points 291 reinforcing inter-State cooperation 292–4 specialised units 291 spontaneous acts of cooperation 292 templates 291 vade mecums 291 Bemba Gombo, Jean-Pierre identification, tracing, freezing and seizure of assets 165–6 scope of requests for cooperation 169 Best practice, sharing of Hague Working Group 254–5 Bilateral agreements Belgium close cooperation with the otp 281 enforcement of sentences 282 generally 279–80 protection and relocation of witnesses 280 protection of witnesses abroad 280–1 provisional release 282–3 tools to improve cooperation 292 transport of detained witnesses or arrested suspects 281–2 protection of victims and witnesses 175–6 Blé Goudé, Charles arrest warrant for 37–8 sanctions list of unsc 167 Bona fide third parties competing claims for assets 243–4 Bureau of the Facilitator see also Facilitator for Cooperation in the Hague Working Group assets subject to sanctions 240 report on activities of Working Group on Cooperation 250 Capacity development enabling compliance 379–80 Case Matrix Network Ratification, Implementation and Cooperation Toolkit 399 Central African Republic

419 eu encouragement of cooperation with icc, and 304 minusca use of to support cooperation 43 non-compliance enforcement of findings by asp 106–7 referral to icc 19–20, 38 Central Authority for Cooperation (Belgium) communication channels 271–2 consultations 273–4 establishment of 269–71 execution of requests for cooperation 272–3 tools to improve cooperation 290 Chad non-compliance assessment of 157 efficiency of icc, impact on 189 enforcement of findings by asp 106–7 eu response to 308 findings against 82, 125 Pre-Trial Chamber, inconsistency of  127–128 review of cooperation provided by  156 right to be heard 97, 98 Civil society conclusions 355–6 decentralised cooperation regime generally 320–2 nature of 322–3 strengthening 329–355 introduction 318 meaning 320–1 nature of 321–2 ngos, use of 321–2 State party obligations 318–20 strengthening cooperation and political willingness 323–8 strengthening decentralised cooperation regime Assembly of States Parties 330–6 domestic work on arrest warrants 349–50 establishment of the icc 329–330 generally 329 implementing legislation 344–9

420 Kenya 352–3 national/domestic level 343–4 Nigeria 354–5 regional efforts 337–43 South Africa 350–2 Common Security and Defence Policy European Union 300 Commonwealth Secretariat interpretation of Rules 378 Communications, improvements in Hague Working Group 252–3 Competing requests Statute provisions 61 Complementarity, principle of consultation, and 212–5 European Union, and 312–3 jurisdiction 14–15 Office of the Prosecutor, and 58–9 role of States, and 153 same case/same person test 212–13 Confidentiality behavioural effects of cooperation, and  372 Office of the Prosecutor 64 Consent to surrender Statute provisions 61 Consultation complementarity, and 212–5 conclusions 223–4 encouragement of State cooperation 373 introduction 210–11 legal culture, and 219–20 Libya 222–3 pluralism, and 218–9 prosecutorial discretion, and 215–18 Rwanda 220–2 Contact persons subject of arrest warrants or summons eu response to 311 Hague Working Group 258–60 un Guidance 24, 378 Cooperation and Judicial Assistance Database (cjad) Agreement on the Privileges and Immunities of the icc 404 consistency checks and balances 410–11 development of cjad 398 establishment of 397–400

Index format for 406–8 limitations of 412 need for 403–5 populating the database 409–10 searches on 411–12 sourcing legislation 409 Cooperation regime ad hoc tribunals, contrast with 11 basic features generally 7–10 jurisdiction 13–16 relative obligation 11–13 treaty-based obligation 10–11 legal apparatus, deficiencies of 46 political will 46 prosecutorial strategy 47–8 scope of application administration of justice 9–10 arrest and surrender 8 fines 9 forfeiture orders 9 investigations 8–9 prosecutions 8–9 Coordination meetings tools to improve cooperation in Belgium  291–2 Côte d’Ivoire admissibility challenges 154 referral to icc critical assessment of 40–1 generally 36–8 un peacekeeping missions, cooperation with 70 Crimes against humanity jurisdiction 13 Crime of aggression jurisdiction 13 Darfur, Sudan see also Al Bashir non-compliance efficiency of icc, impact on 187–90 findings to date 82 lenient approach to 198 referral to icc 21–8, 39 response to non-cooperation 197 timing of applications 86–9 Decentralised cooperation regime generally 320–2

Index nature of 322–3 strengthening Assembly of State Parties 330–6 domestic work on arrest warrants  349–50 establishment of the icc 329–330 generally 329 implementing legislation 344–9 Kenya 352–3 national/domestic level 343–4 Nigeria 354–5 regional efforts 337–43 South Africa 350–2 Defence teams Hague Working Group 262 Registry assistance to agreements relating to release of detained persons 170–1 equality of arms 168–9 scope of assistance 169–70 transparency 169–70 travel bans, liaising with unsc over  171–2 Democratic Republic of the Congo see also Lubanga Dyilo Katanga reparation, and 227–8 non-compliance apparent failure to comply 93 assessment of 157 discretionary powers, inconsistent use of 90–2 efficiency of icc, impact on 189 enforcement of findings by asp 107 findings against 84, 125 Pre-Trial Chamber, inconsistency of  127, 129 referral to icc 18–19, 38 un peacekeeping missions, cooperation with 70 Detained persons agreements relating to release of 170–1 Diplomatic immunity restrictions on duty to cooperate 12 Diplomatic support Hague Working Group 264–6 Djibouti non-compliance efficiency of icc, impact on 189

421 findings against 83 right to be heard 97, 98 Double jeopardy behavioural effects of cooperation, and  372 Draft Strategic Plan of the otp improving efficiency of the icc 201 Efficiency of the icc conclusions 204 impact of non-cooperation on ad hoc tribunals 186–7 Chad 189 Darfur 187–90 Democratic Republic of the Congo 189 Djibouti 189 Kenya 189, 190–3 Malawi 189 impact of on State cooperation generally 193 operation of the court 194–6 perceptions of inefficiency 195–6 reputation 194 responses to non-cooperation 196–200 improving Draft Strategic Plan of the otp 201 expediting responses to non-cooperation 202–3 performance indicators 202 Study Group on Governance 200–1 introduction 185 Emergency Bureau expediting responses to non-cooperation 202–3 Enforcement Art 87(7) procedure appeal rights 99–100 generally 95 opportunity to be heard 97–9 opportunity to present case  95–6 reasons 100–2 Belgium 282 conclusion 108–9 cooperation obligations 61–3 enforcement methods Assembly of State Parties 105–8

422 generally 103 United Nations 103–5 Hague Working Group 263 introduction 80 legality of cooperation requests 95–6 non-compliance findings Enforcement (cont) apparent failure to comply 92–3 complete failure to comply 93 discretionary powers, inconsistent use of 90–5 findings to date 81–6 generally 81 objective failure to comply 93 timing of applications 86–9 Enforcement Unit of the Presidency identification, tracing, freezing and seizure of assets 162 Equality of arms Registry assistance in achieving 168–9 Ethiopia non-compliance arrest warrant for Al Bashir 26–7 Eurojust Office of the Prosecutor, cooperation with 71 European Union Action Plan 299, 301, 311 cojur-icc working group 338–9 Common Security and Defence Policy 300 complementarity, implementation of  312–3 conclusions 313 cooperation with icc cooperation agreements 300–1 encouraging cooperation by third States 301–4 generally 299–300 reacting to non-cooperation 304–11 eu-Genocide Network 339, 381 Kampala Review Conference 298, 336 non-cooperation, responses to generally 304–5 impending instances of non-cooperation 305–6 incidences which have occurred 306–8 non-essential contacts 311

Index persistent non-cooperation 309–10 repeated non-cooperation 309–10 Office of the Prosecutor, cooperation with  71 Policy in Support of International Criminal Justice 297 promotion of implementing legislation 311–12 use of icc in achieving eu priorities  297–9 Evidence behavioural effects of cooperation 371 Facilitator for Cooperation in the Hague Working Group conclusions 266–7 cooperation issues arrest strategies 260–2 communication between Court and State parties 252–3 defence teams 262 diplomatic support 264–6 enforcement of sentences 263 establishing coordinating mechanisms 254–5 final release 263–4 freezing of assets 255–6 identification of assets 255–6 implementing legislation 253–4 interim release 263–4 Legal Tools Project 253–4 non-essential contacts 258–60 political support 264–6 privileges and immunities of court staff 256–8 seizure of assets 255–6 sharing best practice 254–5 voluntary agreements 262–4 witness relocation 262–3 high-level meetings 251–2 introduction 248–9 meetings of Working Group 249 plenary discussions during asp meetings  251 report of Bureau on Cooperation 250 resolutions 250–1 seminars 251–2 Failed States jurisdiction 16

Index Falk Moore, Sally pluralism and consultation 218 Final release of detained persons agreements relating to 170–1 Hague Working Group 263–4 Financial reimbursement encouragement of State cooperation 373 Fines post-conviction reparation 237 scope of application of icc cooperation regime 9 Focal points civil society encouragement of 333–4 tools to improve cooperation in Belgium  291 Forfeiture orders post-conviction reparation 237 scope of application of icc cooperation regime 9 Framework agreements mandatory nature, lack of 320 Freezing of assets see Assets Gadaffi, Muammar see also Libya arrest warrant for 28 Gadaffi, Saif Al-Islam see also Libya admissibility challenges 154 arrest warrant for non-compliance findings to date 84 unsc referral to icc 28–30 assessment of non-compliance by States 159 concurrent national proceedings 213 sanctions list of unsc 167 Gbagdo, Laurent see also Côte d’Ivoire arrest warrant for 36–8 sanctions list of unsc 167 Gbagdo, Simone see also Côte d’Ivoire arrest warrant for 37 sanctions list of unsc 167 Genocide eu-Genocide Network 339, 381 jurisdiction 13

423 Hague Working Group see Facilitator for Cooperation in the Hague Working Group Heads of State non-compliance findings 101–2 tensions between au and icc 138 High Commissioner for Human Rights (un) Office of the Prosecutor, cooperation with 71 Human rights restrictions on duty to cooperate 12 icc Protection Programme protection of victims and witnesses  174–5 icc Visiting Professionals Scheme strengthening cooperation 381 Identification of assets see Assets Immunities court staff 256–8 Implementing legislation civil society efforts to strengthen cooperation 344–9 eu promotion of 311–12 National Implementing Legislation Database 398 Ratification, Implementation and Cooperation Toolkit 399 reparations generally 238–9 non-State parties 239–40 vagueness of provisions 239 technology-driven tools 400–3 Working Group for Cooperation 253–4 Inability to cooperate reasons for non-compliance 41 Interim release of detained persons agreements relating to 170–1 Belgium bilateral agreements on enhanced cooperation 282–3 emergency arrest in case of interim release 285–7 Hague Working Group 263–4 International Criminal Justice Unit establishment of 397–8 International Criminal Tribunal for Rwanda (ictr)

424 see also Ad hoc tribunals, International Criminal Tribunal for the former Yugoslavia International Criminal Tribunal for Rwanda (ictr) (cont) consultation, and complementarity 218 domestic legal capacity 220–2 pluralism 219 transfer of suspects 220 duty to cooperate with 11, 123 un mandate 59–60 vertical model of cooperation 123 willingness to cooperate with 43 International Criminal Tribunal for the former Yugoslavia (icty) see also Ad hoc tribunals, International Criminal Tribunal for Rwanda arrest strategies 260 duty to cooperate with 11, 123 un mandate 59–60 vertical model of cooperation 123 willingness to cooperate with 43 International Development Law Organization (idlo) Office of the Prosecutor, cooperation with 71 International law restrictions on duty to cooperate 12 Interpol Office of the Prosecutor, cooperation with 71 Investigations see also Office of the Prosecutor behavioural effects of cooperation 371 scope of application of icc cooperation regime 8–9 Judicial cooperation statutory provisions 60–1 Jurisdiction, Complementarity and Cooperation Division Office of the Prosecutor 73–4 Jurisdiction of the icc complementarity principle 14–15 crimes against humanity 13 crimes of aggression 13 failed states 16 genocide 13

Index reasons for non-compliance 41 self-referrals 16–17 strategy of otp 13–14 unsc referrals 14 war crimes 13 Kampala Review Conference European Union 298 implementation of pledges from 336 Katanga see also Democratic Republic of the Congo reparation, and 227–8 Kenya see also Kenyatta admissibility challenges 154 non-compliance amicus curiae observations 161 appeal against decision 135 civil society, and 352–3 complete failure to comply 93–4 efficiency of icc, impact on 189, 190–3 eu response to 308 findings to date 83, 85 investigation initiated against 31–6, 39–40 lack of referral to the asp 132–5 lenient approach to 198 requests in violation of Kenyan law 132 response to non-cooperation 197 right to be heard 97–8 standing of Prosecutor 130–1 timing of applications 89 Kenyatta, Uhuru Muigai see also Kenya case against assessment of non-compliance by States 158 background 116–18 comparison to Al Bashir case 115–16 cooperation challenges 118–21 effect of non-cooperation 375 referral to asp 159–60 identification, tracing, freezing and seizure of assets 164–5 reparation, and 232–3 summons to appear before icc 31, 33–6 Kogsey, Henry Kiprono

Index see also Kenya summons to appear before icc 31, 32, 118 Kuwait non-compliance arrest warrant for Al Bashir 26–7 Law enforcement networks development of 74 strengthening cooperation 381 Legal Tools Project Hague Working Group 253–4 National Implementing Legislation Database 347, 398 Legality cooperation requests 95–6 Libya see also Al-Senussi, Gadaffi admissibility challenges 154 consultation, and 222–3 detention of icc staff 303 non-compliance concurrent national proceedings 213 findings to date 84 objective failure to comply 93, 95 referral to icc 28–30, 39 Locus standi appeals by States 161 Office of the Prosecutor 130–2 Lord’s Resistance Army (lra) costs of compliance 385 eu encouragement of cooperation with icc, and 303–4 Lubanga Dyilo, Thomas see also Democratic Republic of the Congo reparation, and generally 227 issues with securing assets 229–31, 238 protective measures 235 Malawi non-compliance efficiency of icc, impact on 189 enforcement of findings by asp 106–7 eu response to 308 findings against 84, 125 Pre-Trial Chamber, inconsistency of 127–128

425 Mali referral to otp 21 un peacekeeping missions, cooperation with 70 Managerial compliance assumptions and limitations likelihood to comply 383–6 propensity to comply 382–3 conclusions 386–9 effects of cooperation behavioural effects 371–3 formal effects 370–71 generally 369 enabling formal and behavioural compliance capacity development 379–80 clarifying rule ambiguity 376–8 generally 375–6 professional networks 380–1 transparency 381–2 formal measures for refusal to comply 373–5 introduction 366–7 mechanisms of cooperation coercive mechanisms 368 generally 367–8 managerial mechanisms 368–9 mercosur strengthening international cooperation 323, 340 Money laundering treaties reparation, use in 244 Multidimensional Integrated Stabilization Mission in the Central African Republic use of to support cooperation 43 Muthaura, Francis Kirimi see also Kenya summons to appear before icc 31, 32, 118 National Implementing Legislation Database development of cjad, and 398, 405–6 Legal Tools Project, and 347, 398 use of 347 National laws restrictions on duty to cooperate 12 National security behavioural effects of cooperation, and  372

426 postponement of execution in Belgium  288–9 Ne bis in idem behavioural effects of cooperation, and  372 Network of National Cooperation Practitioners strengthening cooperation 381 Nigeria non-compliance assessment of 157 civil society, and 354–5 discretionary powers, inconsistent use of 91 enforcement of findings by asp 106–7 findings to date 84 late request resulting in materially difficult position 96 Non-cooperation assessment of 156–9 efficiency of icc, impact of generally 193 operation of the court 194–6 perceptions of inefficiency 195–6 reputation 194 responses to non-cooperation 196–200 efficiency of icc, impact on ad hoc tribunals 186–7 Chad 189 Darfur 187–90 Democratic Republic of the Congo 189 Djibouti 189 Kenya 189, 190–3 Malawi 189 eu response to generally 304–5 impending instances of non-cooperation 305–6 incidences which have occurred 306–8 non-essential contacts 311 persistent non-cooperation 309–10 repeated non-cooperation 309–10 reasons and remedies African Union 44

Index inability to cooperate 41 jurisdiction of icc 41 non-territorial states 44 peacekeeping forces, use of 41–3 regional organisations, use of 43–4 unsc involvement 45–6 wilful non-compliance 41 willingness to cooperate 43–6 Non-essential contacts eu response to 311 Hague Working Group 258–60 Non-governmental organisations (ngos) Office of the Prosecutor, cooperation with 71 use of coalitions 321–2 Non-State parties formal effects of cooperation 370 icc Cooperation Regime 60 Office of the Prosecutor, cooperation with 70–3 Non-territorial States remedies for non-compliance 44 Offences against the Administration of justice Office of the Prosecutor 75–6 scope of application of icc cooperation regime 9–10 Office of the Prosecutor assets, identification, tracing, freezing and seizure of 162 Belgium 281 complementarity 58–9 Draft Strategic Plan 201 fast tracks 74–5 icc Cooperation Regime ad hoc tribunals, contrast with 59–60 enforcement of obligations 61–3 judicial cooperation 60–1 non-State parties 60 interpretation of Rules 377 introduction 58–9 Jurisdiction, Complementarity and Cooperation Division 73–4 law enforcement and cooperation networks 74 locus standi 130–2 non-State parties, cooperation from  70–3

Index proprio motu referrals Côte d’Ivoire 36–8, 40–1 critical assessment of 39–41 introduction 16–17 Kenya 31–6, 39–40 prosecutorial discretion consultation, and 215–18 recent challenges and jurisprudence 68–70 recent developments fast tracks 74–5 law enforcement and cooperation networks 74 standardisation process 74–5 Trial Chamber 76 witness interference 75–6 standardisation process 74–5 State Parties, cooperation from 64–7 support from States 76–7 Trial Chamber 76 types of cooperation 63–4 witness interference 75–6 Orders for contribution Belgium 285 Organisation Internationale de la Francophonie (oif) Office of the Prosecutor, cooperation with 71 Organization of American States declarations on icc 340 transparency, maintaining compliance through 382 Parallel freezing orders reparation, and 240–2 Peacekeeping forces remedies for non-compliance 41–3 Performance indicators improving efficiency of the icc 202 Pledges of support Office of the Prosecutor 76–7 Pluralism consultation, and 218–9 Political support Hague Working Group 264–6 strengthening 323–8 Politics of State cooperation Al Bashir case

427 background 121–2 comparison to Kenyatta case 115–16 legal dimensions of cooperation 122–4 non-compliance 124–30 Assembly of State Parties, role of 140–3 African Union/icc tensions 135–40 conclusions 143 introduction 114–16 Kenyan non-compliance appeal against decision 135 lack of referral 132–5 requests in violation of Kenyan law 132 standing of Prosecutor 130–1 Kenyatta case background 116–18 comparison to Al Bashir case 115–16 cooperation challenges 118–21 unsc, role of 140–3 Postponement of execution Belgium admissibility challenge under consideration 289–90 generally 287 interference with on-going investigations 289 national security issues 288–9 Pre-Trial Chamber challenging otp decisions not to investigate 153 discretionary powers transparency and consistency in use of 90–5 Precautionary measures proceeds of crime, and 234 protective basis 235–7 provisional basis 233–5 Presidency, Enforcement Unit of identification, tracing, freezing and seizure of assets 162 Privileges Agreement on the Privileges and Immunities of the icc 404 court staff 256–8 Proceeds of crime precautionary measures, and 234 Professional networks

428 enabling compliance 380–1 Prohibition on reservations statutory provisions 61 Principle of complementarity consultation, and 212–5 European Union, and 312–3 jurisdiction 14–15 Office of the Prosecutor, and 58–9 role of States, and 153 same case/same person test 212–13 Proprio motu referrals Office of the Prosecutor Côte d’Ivoire 36–8, 40–1 critical assessment of 39–41 introduction 16–17 Kenya 31–6, 39–40 Prosecutions behavioural effects of cooperation 371 scope of application of icc cooperation regime 8–9 Prosecutor see Office of the Prosecutor Prosecutorial discretion consultation, and 215–18 Protection of victims and witnesses ad hoc agreements 175–6 behavioural effects of cooperation 372 Belgium protection and relocation of witnesses 280 protection of witnesses abroad 280–1 bilateral agreements 175–6 generally 172 icc Protection Programme 174–5 Special Trust Fund for Relocation 177 Victim and Witness Unit 173–4 Provisional arrest requests Statute provisions 61 Qatar non-compliance 26–7 Rapporteur on arrest strategies appointment of 261 Ratification, Implementation and Cooperation Toolkit (cmn) aims of 399 Reasons

Index findings of non-compliance 100–2 non-compliance 41 Referrals to the icc proprio motu referrals by Prosecutor Côte d’Ivoire 36–8, 40–1 critical assessment of 39–41 introduction 16–17 Kenya 31–6, 39–40 self-referrals Central African Republic 19–20, 38 critical assessment of 38 Democratic Republic of the Congo 18–19, 38 introduction 16–17 Mali 21 Uganda 17–18, 38 unsc referrals Al Bashir 21–8 critical assessment of 39 Darfur 21–8, 39 introduction 16–17 Libya 28–30, 39 Refusal of request for assistance Belgium admissibility challenge under consideration 289–90 generally 287 interference with on-going investigations 289 national security issues 288–9 Regional organisations remedies for non-compliance 43–4 Registry of the icc assets, identification, tracing, freezing and seizure of Bemba case 165–6 complexity of system 161–4 cooperation with other actors 166–8 Kenyatta case 164–5 conclusions 177–8 defence teams, assistance to agreements relating to release of detained persons 170–1 equality of arms 168–9 scope of assistance 169–70 transparency 169–70 travel bans, liaising with unsc over 171–2 interpretation of Rules 377

Index introduction 152–3 protection of victims and witnesses ad hoc agreements 175–6 bilateral agreements 175–6 generally 172 icc Protection Programme 174–5 Special Trust Fund for Relocation 177 Victim and Witness Unit 173–4 States, review of cooperation provided by generally 155–6 non-compliance, assessment of 156–9 referrals to asp and unsc 159–61 standing for appeals 161 States, role of admissibility challenges 154–5 amicus curiae briefs, submission of  155 applications for review 153–4 generally 153 Release of detained persons agreements relating to 170–1 Belgium 282–3 Hague Working Group 263–4 Relocation of witnesses Hague Working Group 262–3 Special Trust Fund for Relocation 177 transport of detained witnesses behavioural effects of cooperation 371 Belgium 281–2 Reparations Appeals Chamber 228–9 competing claims for assets 242–4 conclusions 244–5 implementing legislation generally 238–9 non-State parties 239–40 vagueness of provisions 239 introduction 227–33 Kenyatta case 232–3 Lubanga Dyilo case 229–31 parallel freezing orders 240–2 statutory framework post-conviction measures 237–8 precautionary measures 233–7 sanctions, assets subject to 240–2 Trust Fund for Victims 229 Review of decisions

429 see also Appeals Chamber applications for 153–4 Right to be heard Chad 97, 98 Djibouti 97, 98 generally 97 Kenya 97–8 requirement for 95–6 waiver of rights 98–9 Rwanda see International Criminal Tribunal for Rwanda Ruto, William Samoei see also Kenya amicus curiae briefs, submission of 155 summons to appear before icc 31, 33, 118 Sanctions reparation using assets subject to 240–2 sanctions list 167 Sang, Joshua Arap see also Kenya amicus curiae briefs, submission of 155 summons to appear before icc 31, 33, 118 Secretariat of Parliamentarians for Global Action implementing legislation 346–7 Seizure of assets see Assets Self-referrals Central African Republic 19–20, 38 critical assessment of 38 Democratic Republic of the Congo  18–19, 38 introduction 16–17 Mali 21 Uganda 17–18, 38 Service of documents behavioural effects of cooperation 371 Sierra Leone peacekeeping forces, use of 42 South Africa non-compliance 25–6, 350–2 Southern common market see mercosur Sovereignty see also Heads of State

430 restrictions on duty to cooperate 12 Special Trust Fund for Relocation protection of victims and witnesses 177 Specialised units tools to improve cooperation in Belgium  291 Standardisation process development of 74–5 Standing see Locus standi State immunity non-compliance findings 101–2 State Parties obligations of 318–20 Office of the Prosecutor, cooperation with  64–7 review of cooperation provided by generally 155–6 non-compliance, assessment of  156–9 referrals to asp and unsc 159–61 standing for appeals 161 role of admissibility challenges 154–5 amicus curiae briefs, submission of  155 applications for review 153–4 generally 153 Study Group on Governance improving efficiency of the icc 200–1 Sudan see Al Bashir, Darfur Summons to appear Belgian response to 284–5 Task Force for International Criminal Justice (Belgium) generally 274 meetings on classified cases 278–9 meetings on specific cases 277–8 membership of 275–7 plenary meetings 274–5 Taylor, Charles (Sierra Leone) peacekeeping forces, use of 42 Technology-driven tools Case Matrix Network development of cjad 398

Index Ratification, Implementation and Cooperation Toolkit 399 conclusions 412–13 Cooperation and Judicial Assistance Database Agreement on the Privileges and Immunities of the icc 404 consistency checks and balances 410–11 establishment of 397–400 format for 406–8 limitations of 412 need for 403–5 populating the database 409–10 searches on 411–12 sourcing legislation 409 implementing the icc Statute 400–3 International Criminal Justice Unit hrlc 397–8 introduction 396 Legal Tools Project 398 National Implementing Legislation Database 398, 405–6 Templates tools to improve cooperation in Belgium 291 Third parties competing claims for assets 243–4 Tracing assets see Assets Transparency enabling compliance 381–2 Registry assistance to defence teams  169–70 Transportation of detained witnesses or arrested suspects behavioural effects of cooperation 371 Belgium 281–2 Travel bans liaising with unsc over 171–2 Trial Chamber witness attendance 76 Trust Fund for Victims reparation, and 229 Uganda non-compliance 17–18, 38 Union of the Comoros

431

Index challenging otp decisions not to investigate 153 United Nations guidance on persons subject of arrest warrants or summons 24, 378 Negotiated Relationship Agreement with icc 70–1, 104 United Nations Security Council (unsc) enforcement judicial findings of non-compliance 103–5 role in 140–3 remedies for non-compliance 45–6 referrals to 159–61 referrals to icc Al Bashir 21–8 critical assessment of 39 Darfur 21–8, 39 formal effects of cooperation 371 introduction 16–17 jurisdiction of icc 14 Libya 28–30, 39 resolutions discretion to implement 167–8 sanctions list 167 travel bans 171–2 University of Nottingham development of cjad 398 development of nild 405–6 Human Rights Law Centre 397 International Criminal Justice Unit  397–8 Victim and Witness Unit protection of victims and witnesses 173–4 Victims, protection of ad hoc agreements 175–6 bilateral agreements 175–6 generally 172 icc Protection Programme 174–5 Special Trust Fund for Relocation 177 Trust Fund for Victims 229 Victim and Witness Unit 173–4 Visiting Professionals Scheme (icc) strengthening cooperation 381 Voluntary agreements

civil society encouragement of 336 Hague Working Group enforcement of sentences 263 final release 263–4 interim release 263–4 witness relocation 262–3 reliance on 319–20 Waivers of immunity statutory provisions 61 War crimes jurisdiction 13 Wilful non-compliance reasons 41 Willingness to cooperate non-compliance 43–6 Witness interference Office of the Prosecutor 75–6 Witness protection ad hoc agreements 175–6 behavioural effects of cooperation 372 Belgium protection and relocation of witnesses 280 protection of witnesses abroad 280–1 bilateral agreements 175–6 generally 172 icc Protection Programme 174–5 Office of the Prosecutor 64 Special Trust Fund for Relocation 177 Victim and Witness Unit 173–4 Witness relocation Hague Working Group 262–3 Special Trust Fund for Relocation 177 transport of detained witnesses behavioural effects of cooperation 371 Belgium 281–2 World Bank Office of the Prosecutor, cooperation with 71 transparency, maintaining compliance through 382 Yugoslavia see International Criminal Tribunal for the former Yugoslavia