Civil society and ICC representatives debated the challenges to universal ratification and implementation of the Rome Statute, the ICC’s founding treaty, at an event organized by the Hague Institute for Global Justice last week.
The benefits of implementation to national judicial systems
In the event’s opening keynote address, ICC President Silvia Alejandra Fernández de Gurmendi highlighted the close link between full implementation of the Rome Statute and the core obligations and principles of cooperation and complementarity. She noted that in light of the Statute’s preamble, complementarity may in fact be considered a preexisting obligation of states parties.
The president described the Rome Statute and its elements of crime as a natural reference point for states when bringing their own policies into conformity with the instrument, a point later elaborated on by Dr. Rastan. She stated that full implementation can beneficially alter national judicial systems as well as international relations: for example, by encouraging attention to procedures for victim reparations and witness protection; by underscoring the importance of criminalizing interferences with prosecutions and investigations; and by facilitating dialogues between different national systems.
The president encouraged reliance on the 66 recommendations, ratification of the Agreement on Privileges and Immunities of the ICC (APIC), voluntary cooperation agreements and, generally, focusing on more than legislation to effect full implementation: allocating resources and developing political.
The need for national consensus
The panel discussion was opened by ICC Judge Raul Cano Pangalangan, who stressed that developing a consensus on the national level is essential to implementation. He noted that political momentum often wanes after ratification, because states beleive that political realities allow them to only move one step at a time.
Judge Pangalangan stated that the history of countries in South East Asia often involve ICC subject matter, which has led to faster ratification of the Rome Statute. He said this history was one in a “magical combination of events” triggering ratification.
However, he noted that implementation approach emphasizing rule of law principles might be more effective than one revolving around international human rights law. Judge Pangalangan stated that the senate in his home state – the Philippines – is currently in the process of implementing the Rome Statute in one legislative instrument. (It is also deciding upon ratification of the Kampala Amendments).
Interdependence of the ICC and states parties
Dr. Rod Rastan, ICC Office of the Prosecutor, highlighted the interdependence between the ICC and its states parties. He referred to the Court’s twin-pillars: judicial and enforcement functions. He reminded the audience that the Court has no international police force at its disposal – thus national authorities must consider themselves proxy enforcement arms of the ICC.
Dr. Rastan noted that on the one hand, the Court is independent, for example with regards to case selection. On the other hand, the Court is dependent on states to cooperate in carrying out its mandate. By the same token, the states are independent in that they cannot technically be forced into action, but having signed up as parties to the Rome Statute, they have rendered themselves dependent on the Court’s judicial functions.
On the topic of what the obligation to implement the Rome Statute actually means, Dr. Rastan suggested that while enactment of implementing legislation is necessary, states must also view the Court as a live institution and stay informed about amendments and developments in case law (for example, short of transporting witnesses to The Hague, states parties must now cooperate in some way, such as through video link, with Court-issued subpoenas for witnesses to testify; they must also familiarize themselves with new procedures regarding prior recorded testimony).
Dr. Rastan echoed the President’s reminder that complementarity is not an obligation covered by the articles of the Rome Statute. Thus while states parties technically need not view the Rome Statute as standard-setting for their national judicial systems, they should treat it as a reference tool for plugging the gaps.
Implementation and legal, political and dual challenges
Romina Morello, of the International Law and Human Rights Programme, Parliamentarians for Global Action, categorized one set of challenges to ratification and implementation as legal ones. As a current example she recalled the decision of the Constitutional Court of Ukraine in 2001, in which it was decided that an amendment to constitution article 124 would be necessary to allow ratification. Specific constitutionality issues here include complementarity of the ICC in relation to national courts, recognition of the ICC as a court by the national systems, judicial sovereignty, prohibition on extradition of nationals to third states versus the obligation to surrender nationals to the ICC, prohibition of life imprisonment, the head of state’s prerogative to provide amnesties and pardons and head of state immunity.
She offered four legal solutions: 1) inserting a new article in the constitution allowing all relevant constitutional problems to be settled (France, Portugal, Luxemburg and Colombia exemplify this method); 2) introducing and/or applying a special procedure of approval by parliament to allow ratification despite conflicting constitutional articles (for example, article 91(3) of the constitution of the Netherlands); 3) interpreting certain provisions of the constitution to avoid conflicts with the Rome Statute (an overwhelming majority of states parties opt for this method); and (4) systematically revising all constitutional articles that must be changed to comply with the Rome Statute (Chile did this before ratifying while Brazil did so after ratifying).
Within the next category – political challenges – Morello addressed issues of transparency, accountability, fear of prosecution, the fact that the ICC is not often at the forefront of a country’s political agenda and the absence of global and regional powers in the Rome Statute membership. She noted the powerful impact that ratification by states like USA, Russia and China could have on the achievement of universal membership. To that end she emphasized the benefits of meeting with states to encourage reprioritization of their political agendas, for example by clearing up misinterpretations of the Rome Statute.
Morello classified the third category as dual challenges (both legal and political): issues of legal certainty, predictability and misinterpretation. For instance, in El Salvador retroactivity of the Rome Statute serves as the main impediment to ratification, despite many efforts to explain that the system created by the Rome Statute does not cover crimes of the past. Highlighting the benefits of implementation is one important solution here: the deterrence effect; the preservation of primacy of national systems; de-politicization of domestic prosecutions; and insulation of the judicial branches from undue influence; and modernization of national judicial systems.
The following issues were addressed in Q&A:
- Judge Pangalangan noted that packaging the Rome Statute as a rule of law tool certainly makes implementation easier in many countries, such as those in Asia. However, he cautioned that it is necessary to deal with local elites and politicians.
- Morello compared instances where judicial interpretation can either be part of the problem (as in the case of Ukraine) or part of the solution (as in the case of the court of Ecuador, which interpreted the constitution in accordance with the Rome Statute).
- Rastan suggested memoranda of understanding as useful stop-gaps where non-cooperation arises from incomplete implementation as opposed to the lack of political. Reasons for non-cooperation here include a state’s particular method of implementation or requests for cooperation being bogged down by domestic review, for example.
- The panel offered their thoughts on the suggestion that more space is needed for the crime of ecocide within international justice. They recalled that the International Court of Justice has provided important dicta on the topic, that states like Ecuador have voiced concern about ecocide and that some parliamentarians have even supported the inclusion of ecocide alongside Rome Statute offences in their implementing legislation.
- With regard to the ICC’s relationship with the African Union, Morello noted that there are strong parliamentarians – the voices of the population – throughout the AU who have argued for continued cooperation. She also highlighted NGO work to strengthen the relationship.
- The President alluded to the ICC’s performance indicators, which reveal several areas where a lack of cooperation can have significant impacts on the efficiency of the Court.
- When requested to identify Jamaica’s challenges to ratification, Morello identified issues of non-priority and non-capacity. With respect to the former, she pointed out that the country’s foreign affairs priority is implementing legislation related to the World Bank. She noted that non-capacity is a prevalent impediment, highlighting PGA’s efforts to advise Kiribati on ways to address this challenge.
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