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“Parliamentarians for Global Action shall undertake to prepare an “ICC package/kit of materials” for use by PGA members and other concerned MPs in their initiatives in support of the ICC in their respective countries. The kit may become an education tool for Parliamentarians and citizens-at-large to foster acceptance and understanding of the ICC and promote its growth.”

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1
New York-The Hague
[Updated: May 2017]
FROM THE “NEW YORK DECLARATION ON PARLIAMENTARY ACTION IN SUPPORT OF THE ICC”, 2
ND
CONSULTATIVE ASSEMBLY OF PARLIAMENTARIANS FOR THE ICC AND THE RULE OF LAW, 12 SEPTEMBER 2003:
“Parliamentarians for Global Action shall undertake to prepare an “ICC package/kit of materials” for use by PGA
members and other concerned MPs in their initiatives in support of the ICC in their respective countries. The kit may become
an education tool for Parliamentarians and citizens-at-large to foster acceptance and understanding of the ICC and promote its
growth.”
Contents
From the Nuremberg Trial’s Judgment, 30 September 1946 (Vol. XXII, p. 466): ...................................................................... 1
1) Status of States Parties and Signatories to the Rome Statute of the International Criminal Court, As of 28 Nov 2017..... 4
2) Questions and Answers on the International Criminal Court .................................................................................................... 5
3) Parliamentary Action in support of the ICC ................................................................................................................................ 10
A. Universal Representation in the “ICC system”: promoting ratification/accession to the Rome Statute ........... 10
B. Ensuring Full Cooperation with the ICC ...................................................................................................................... 11
C. Promoting National Prosecutions (including prosecution of individuals who finance or otherwise participate
in the commission of international crimes) ............................................................................................................................. 19
D. The 2010 Kampala Amendments to the Rome Statute .............................................................................................. 23
Parliamentary Kit
on the International Criminal Court (ICC)
FROM THE NUREMBERG TRIALS JUDGMENT, 30 SEPTEMBER 1946 (VOL. XXII,
P. 466):
“Crimes against international law are committed by men, not by abstract entities,
and only by punishing individuals who commit such crimes can the provisions of
international law be enforced.”
HEADQUARTERS: 132 Nassau Street, Suite 1419, New York, NY 10038, USA | T +1.212.687.7755 |F +1.212.6878409
STICHTING PGA: 70 Laan van Meedervoort, The Hague, 2517AN, The Netherlands | T +31.70.360.4433 | F +31.70.364.22.55
www.pgaction.org
2
EDITORS’ NOTE:
This kit is designed as an introduction to PGA’s ICC Campaign platform. This campaign has been made possible thanks
to the individual and collective mobilisation of Members of Parliaments in the 142 countries where the Parliamentarians
for Global Action is present, by the indispensable support of the European Commission (EC 2013-2015), by the
Governments of The Netherlands, Liechtenstein, Estonia, Belgium, and Switzerland, as well as Humanity United and the
Oak Foundation.
The most important event in the Calendar of the PGA Campaign for the Effectiveness and Universality of the Rome
Statute system is the “Consultative Assembly of Parliamentarians for the ICC and the Rule of Law” (CAP ICC). In the
past, this event was realized also with the generous support of the governments of Belgium and Germany and the
Municipality of The Hague, as well as with in-kind support of the hosting Parliaments of Canada (2002), New Zealand
(2004, Japan (2006), the Dominican Republic (2008), Uganda (2010), Italy (2012), Morocco (2014) and Senegal (2016). In
parallel to the first Assembly of States Parties to the Rome Statute of the ICC, the second CAP-ICC was held in New
York at UN Headquarters in 2003. The 8th Session of the Consultative Assembly hosted by the Parliament of Morocco
on December 4 and 5, 2014 was the main global parliamentary event on the ICC and the Rule of Law in 2014. It was
organised for the first time in the MENA region and gathered delegations from all regions of the world.
For more information, please visit: http://www.pgaction.org/activity/2014/cap-icc-viii.html.
The “Parliamentary Kit on the ICC” (March 2017) version has been prepared and updated by Dr. David Donat Cattin
(Secretary General) Ms. Leyla Nikjou (Senior Programme Officer), Ms. Marion Chahuneau (Programme Officer), Ms.
Frederika Schweighoferova (Programme Officer) and Ms. Melissa Verpile (Programme Officer).
HEADQUARTERS: 132 Nassau Street, Suite 1419, New York, NY 10038, USA | T +1.212.687.7755 |F +1.212.6878409
STICHTING PGA: 70 Laan van Meedervoort, The Hague, 2517AN, The Netherlands | T +31.70.360.4433 | F +31.70.364.22.55
www.pgaction.org
3
New York/The Hague, 30 November 2016
Dear Colleague,
On behalf of the International Law and Human Rights Programme of
Parliamentarians for Global Action (PGA), we are delighted to present to you the
updated version of the “Parliamentary Kit on the International Criminal Court
(ICC),” a resource for parliamentarians proposing initiatives that support the
objectives of the ICC.
As PGA members, we have exercised leadership to promote the ICC at the local,
national, and international level, both as a means to end impunity as well as to
reinforce the rule of law. Our contributions have led to the entry into force of the
Rome Statute on July 1, 2002, to the realization of an operational Court in The
Hague, the Netherlands, and to the ratification of 77 of the 124 States Parties, along
with 34 domestic implementation bills.
Still, the fight against impunity for the most egregious international crimes is far from
over. For the purposes of channelling our sustained commitment to this endeavour,
PGA launched the Consultative Assembly of Parliamentarians for the ICC and the
Rule of Law, which during its second session at the United Nations on September 12-
13, 2003, called for a “kit of materials” on the ICC in the Assembly’s action plan.
Prepared by the PGA International Law and Human Rights program expert-team, the
Kit is designed to provide up-to-date information for you to launch future initiatives
in support of the ICC and the rule of law. It shall be used on a country-specific basis,
customized to address the pertinent issue at hand.
For instance, if your country has not yet joined the ICC, you could use the
information on ratification and the merits of joining the Court to foster awareness
and political support for Rome Statute ratification. If on the other hand, your country
has already undertaken most of the implementation tasks necessary to ensure full
cooperation with the ICC, there are still many steps that you can take as a
parliamentarian to promote national prosecution of international crimes and ensure
that the principle of complementarity is given effect and that a full cooperation to the
ICC is provided by your country in compliance with part IX of the Rome Statute.
The ICC cannot handle all of the world’s cases and its objectives will only be met if
national systems fulfil their obligations to uphold the rule of law.
We hope that you find the Kit (and its electronic supplement, a selection of
parliamentary motions, resolutions, declarations and questions on the ICC led by our
members, available at http://www.pgaction.org/programmes/
ilhr/overview.html) to be a useful and flexible tool, one that inspires new initiatives
and action in support of the Fight against Impunity for the most serious crimes of
international concern. As always, the International Law team is at your disposal for
any assistance that you may need or to provide you with any additional materials.
We urge you to keep us informed about ICC-related developments or actions taken
by you in your country to share with colleagues around the world in our updates and
publications.
Sincerely,
Dip. Margarita Stolbizer (Argentina), President of PGA
EXECUTIVE COMMITTEE
President
Dip. Margarita Stolbizer, Argentina
Board
Dip. Ronny Monge Salas, Costa Rica
Dip. Victor Orlando Bisonó, Dominican
Republic
Ms. Barbara Lochbihler, MEP, (Germany),
European Parliament
Ms. Ursula Owusu-Ekuful, MP, Ghana
Mr. Kula Segaran, MP, Malaysia
Mr. Su’a William Sio, MP, New Zealand
Hon. Syed Naveed Qamar, MP, Pakistan
Ms. Margareta Cederfelt, MP, Sweden
Dip. Bertha Sanseverino, Uruguay
Treasurer
Ms. Petra Bayr, MP Austria
INTERNATIONAL COUNCIL
Chair
Sen. Alain Destexhe, Belgium
Councillors
Hon. Fatmir Mediu, MP, Albania
Dip. Cornelia Schmidt Liermann, Argentina
Maria Vamvakinou, MP, Australia
Dep. Jean Wyllys, Brazil
Dip. Tucapel Jimenez, Chile
Dip. Angela Robledo, Colombia
Dip. Marvin Atencio Delgado, Costa Rica
Dep. Mariam Traore, Cote d’Ivoire
Dep. Dieudonné Upira Sunguma, DR Congo
Ms. Mette Gjerskov, MP, Denmark
Sen. Julio Cesar Valentin, Dominican
Republic
Dip. Lorena Peña, El Salvador
Ms. Ana Gomes, MEP, (Portugal), European
Parliament
Hon. Alban Bagbin, MP, Ghana
Shri Tariq Anwar, MP, India
Mr. Noel Grealish, MP, Ireland
Ms. Lia Quartapelle, MP, Italy
Hon. Worlea S. Dunah, MP, Liberia
Hon. Dato’ Seri Mohamed Nazri, MP,
Malaysia
Dep. Antonio Niquice, Mozambique
Sen. Chaudhary Aitzaz Ahsan, Pakistan
Mr. Claude Kamanda, MP, Sierra Leone
Hon. Nimal Siripala de Silva, MP, Sri Lanka
Mr. Patrick Kensenhuis, MP, Suriname
Hon. Jasson Rweikiza, Tanzania
Mr. Hryhorii Nemyria, MP, Ukraine
Mr. Mark Pritchard, MP, United Kingdom
Ms. Fungayi Jessie Majome, MP, Zimbabwe
SECRETARIAT
Secretary-General
Dr. David Donat Cattin
NGO in general consultative status
with the Economic and Social Council
4
1. STATUS OF STATES PARTIES AND SIGNATORIES TO THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL
COURT,
AS OF MAY 2017
Summary
: 124 States Parties (ratifications & accessions [A] in bold) 31 signatories pending to ratify; *: 34 Ratifications to the
2010 Amendments on War Crimes; +: 34 Ratifications to the 2010 Amendments on the Crime of Aggression
1. [A] Afghanistan 10 February 03
2. Albania 18 July 1998 31 Jan 03
Algeria 28 December 2000
3. Andorra 18 July ‘98 – 30 April 01*+
Angola 7 October 1998
4. Ant.&Barb. 23 Oct.‘98–18 Jun. 01
5. Argentina 8 Jan. 99 8 Feb. 01 *+
Armenia 1 October 1999
6. Australia 9 Dec. 98 1 July 02
7. Austria 7 Oct 1998 28 Dec 00*+
Bahamas 29 December 2000
Bahrain 11 December 2000
8. Bangladesh 16 Sept 99- 23 Mar 10
9. Barbados 8 Sept 2000-10 Dec 02
10. Belgium 10 Sept 9828 June 00*+
11. Belize 5 April 00
12. Benin 24 Sept 1999 22 Jan 02
13. Bolivia 17 July 98 27 June 02
14. Bosnia & Herz. 17 Jul 0011 Apr. 02
15. Botswana 8 September 00*+
16. Brazil 7 February 2000 20 June 02
17. Bulgaria 11 Feb. 99 11 April 02
18. Burkina Faso 30 Nov 9816 Apr 04
19. Burundi 13 Jan. 9921 Sept. 04
1
20. Cambodia 23 Oct. 200011 Apr. 02
Cameroon 17 July 1998
21. Canada 18 Dec 1998 7 July 2000
22. Cape Verde 28 Dec.2000-10 Oct. 11
23. Centr. Afr. Rep. 7 Dec. 993 Oct. 01
24. Chad 20 October 99 1 Nov. 06
25. Chile 11 Sept. 98 29 June 2009*+
26. Colombia 10 Dec 98 5 Aug 2002
27. Comoros 22 Sept. 200018 Aug. 06
28. Congo 17 Jul. 19983 May 04
29. [A] Cook Islands 18 July 2008
30. Costa Rica 7 Oct. 19987 June 01*+
31. Cote d'Ivoire 30 Nov. 9815 Feb. 13
32. Croatia 12 Oct 199821 May 2001*+
33. Cyprus 15 Oct 19987 March 02*+
34. Czech Rep. 13 Apr. 9921 July 09*+
35. DRC 8 Sept 2000 11 April 2002
36. Denmark 25 Sept 9821 June 01
37. Djibouti 7 Oct. 985 Nov. 2002
38. [A] Dominica 12 Feb. 2001
39. Dom. Rep. 8 Sept. 2000-12 May 05
40. Ecuador 7 Oct. 19985 Feb. 2002
Egypt 26 December ‘00
41. [A] El Salvador, 3 March 2016*+
Eritrea 7 October 1998
42. Estonia 27 Dec. 9930 Jan. 02*+
43. Fiji 29 November 1999
44. Finland 7 Oct. 9829 Dec. 00*+
1
Burundi notified the ICC of its
withdrawal on 27 Oct 2016
45. France 18 July 989 June 2000
46. Gabon 22 Dec 9820 Sept 2000
47. Gambia 7 Dec. 98 28 June 2002
48. Georgia 18 July ‘98 – 5 Sep ‘03*+
49. Germany 10 Dec.9811 Dec. 00*+
50. Ghana 18 July 199820 Dec. 1999
51. Greece 18 July 98 15 May 2002
52. [A] Grenada 19 May 2011
53. [A] Guatemala 2 April 2012
54. Guinea 8 Sept. 200014 July 2003
Guinea Bissau 11 Sept. 2000
55. Guyana 28 Dec. 2000-24 Sept. 04
Haiti 26 February 1999
56. Honduras 7 Oct. 19981 July 02
57. Hungary 15 Jan. 99 30 Nov 01
58. Iceland 26 Aug. 9825 May 00*+
Iran 31 December 2000
59. Ireland 7 Oct. 9811 April 2002
Israel 31 December 2000
60. Italy 18 July 98 - 26 July 1999
Jamaica 8 September 2000
61. [A] Japan 17 Jul ‘07
62. Jordan 7 Oct. 98 11 April 2002
63. Kenya 11 August 99-15 Mar. 2005
Kuwait 8 September 2000
Kyrgyzstan 8 December ‘98
64. Latvia 22 April 9928 June 02*+
65. Lesotho 30 Nov. 98 - 6 Sept. 2000
66. Liberia 17 July 9822 Sept. 2004
67. Liechtenstein 18 Jul 19982 Oct.
2001*+
68. Lithuania 10 Dec. 199812 May
03*+
69. Luxembourg 13 Oct. 19988 Sept.
2000*+
70. Madagascar 18 July 9814 Mar. 08
71. Malawi 3 March 99 19 Sept. 02
72. [A] Maldives 21 Sept. 2011
73. Mali 17 July 1998 16 Aug. 2000
74. Malta 17 July 199829 Nov. 02*+
75. Marshall Isl. 6 Sept. 007 Dec. 00
76. Mauritius 11 Nov. 985 Mar. 2002
77. Mexico 7 Sept. 200028 Oct. 2005
Monaco 18 July 1998
78. Mongolia 29 Dec. 200011 Apr. 02
79. Montenegro 23 Oct. 06 (succession)
Morocco 8 September 2000
Mozambique 28 December 2000
80. Namibia 27 Oct. 199825 June 02
81. Nauru 13 Dec. 2000-12 Nov. 2001
82. Netherlands 18 Jul 98-17 Jul 01*+
83. New Zealand 7 Oct. 987 Sept 00
84. Niger 17 July 199811 April 2002
85. Nigeria 1 June 200027 Sept. 2001
86. Norway 28 Aug 98 16 Feb. 00*
Oman 20 December ‘00
87. [A] Palestine 2 January 15*+
88. Panama 18 July 9821 March 2002
89. Paraguay 7 Oct. 98 14 May 01
90. Peru 7 Dec. 0010 Nov. 01
91. Philippines 28 Dec. 0030 Aug. 11
92. Poland 9 April 99 12 Nov. 01*+
93. Portugal 7 Oct 98 5 Feb 02 *+
94. Rep. Korea 8 Mar. 0013 Nov. 02
95. Rep. Moldova 8 Sep 00-12 Oct. 10
96. Romania 7 July 9911 April 02
Russian Fed. 13 September 2000
97. Samoa 17 July 98 16 Sept. 02*+
98. San Marino 18 Jul 9813 May
99*+
Sao Tomé et Principe 28 Dec. 00
99. Senegal 18 Jul. 982 Feb. 99
100. Serbia 6 Sept. 01
101. Seychelles 28 Dec. 0010 Aug. 10
102. Sierra Leone 17 Oct.9815 Sept 00
103. Slovakia 23 Dec 9811 Apr. 02*+
104. Slovenia 7 Oct 9831 Dec 01*+
Solomon Islands 3 Dec. ‘98
105. South Africa 17 July 9827 Nov 00
106. Spain 18 July 9824 Oct. 00*+
107. [A] St. Kitts and Nevis 22 Aug. 06
108. St. Lucia 27 Aug. 99-18 Aug. 10
109. [A] St Vincent & the Grenadines
3 Dec. 2002
Sudan 8 September ‘00
110. [A] Suriname 15 July 08
111. Sweden 7 Oct 199828 June 2001
112. Switzerland 18 Jul 9812 Oct 01*+
Syrian Arab Rep. 29 Nov. 2000
113. Tajikistan 30 Nov. 985 May 2000
Thailand 2 October 2000
114. (Former Yug. Rep. Of)
Macedonia 7 Oct. 98 6 Mar 02
115. [A] Timor Leste 6 September ‘02
116. Trinidad & Tobago 23 March
1999 6 April 1999*+
117. [A] Tunisia 24 June 2011
118. Uganda 17 March 9914 June 02
Ukraine 20 January 2000
United Arab Emirates 27 Nov. ‘00
119. UK 30 Nov. 19984 Oct. 2001
120. United Rep. of Tanzania 29 Dec
200020 Aug. 2002
U.S.A. 31 December ‘00
121. Uruguay 19 Dec. 0028 June 02*+
Uzbekistan 29 December ‘00
122. [A] Vanuatu - 2 December 2011
123. Venezuela 14 Oct. 987 June 2000
Yemen 28 December 2000
124. Zambia 17 July 9813 Nov. 2002
Zimbabwe 17 July 1998
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2. QUESTIONS AND ANSWERS ON THE INTERNATIONAL CRIMINAL COURT
Q. What is the Rome Statute?
A. The Rome Statute is an international treaty negotiated under the auspices of the United Nations. It was adopted
on 17 July 1998 through the positive vote of 120 states. The Statute became operational upon the deposit of the
60
th
ratification on 11 April 2002, triggering its entry into force on 1 July 2002.
The Rome Statute established the International Criminal Court, an organisation independent but in relationship
with the United Nations. The Rome Statute defines the crimes under the jurisdiction of the Court as well as
provides the general principles and procedures for the operation of the Court. It also outlines the cooperation
obligations of its state parties.
The Rome Statute was originally signed by 139 states but as of 1 June 2015 it has only been ratified by 108 states.
In addition, 15 other states have since acceded to the Rome Statute. It has, to date, 124 State Parties.
The Statute was amended in 2010, in order to give the Court jurisdiction over the crime of aggression, and to
expand the ban of certain weapons criminalised in the 1998 version to encompass domestic war crimes as well.
State parties are urged to proceed with the ratification of these amendments.
Q. What is the International Criminal Court?
A. The International Criminal Court (ICC) is the first permanent and independent court capable of investigating and
bringing to justice individuals who commit the most serious violations of international criminal law, international
humanitarian law and human rights. These crimes consist of: genocide, crimes against humanity, war crimes, and
the crime of aggression.
After 30 States ratify the amendments to the Rome Statute on the crime of aggression, and once the Assembly of
States Parties to the Rome Statute adopts a positive decision after 1 January 2017, the ICC will also have
jurisdiction over the crime of aggression.
Q. Why do we need the International Criminal Court?
A. The legal vacuum caused by the absence of international judicial institution has fomented impunity and enabled
some to egregiously infringe on human rights. Thus, an international criminal court that is permanent, impartial,
universal, and based on the principle of individual responsibility is an essential mechanism in ending the impunity
enjoyed by the perpetrators of international crimes as well as to deter future crimes. The ICC is part of a broader
system of accountability. It complements domestic tribunals that also contribute to deter and punish these crimes.
Furthermore, the independent judicial process offered by the ICC seeks to ensure that victims are recognised and
that defendants receive the highest standards of due process by the law.
Q. What are the key features of the International Criminal Court?
A. The key features of the International Criminal Court are the following:
Jurisdiction over individuals (not States) who commit the most serious crimes recognised under customary
international law: genocide, war crimes, crimes against humanity, and the crime of aggression.
Permanence (not created for a specific conflict), non-retroactivity (with jurisdiction only over acts committed
after the Rome Statute entered into force for the pertinent State or in any case after 1 July 2002, with the
exception of the jurisdiction over crimes committed in a State not Party to the statute that makes a declaration to
accept the jurisdiction of the Court), and independence (from States, the UN, or any other entity).
Complementary to domestic jurisdictions: the Court can only act when domestic jurisdictions are unwilling or
unable to genuinely exercise their criminal jurisdiction.
The ICC, in compliance with the Rome Statue, guarantees all fundamental human rights of the accused, in
line with due process standards.
The ICC under the Rome Statute and the Rules of Procedure and Evidence guarantees the rights of victims
to participate in judicial proceedings, to apply for reparations, and to be protected by the Court against any harm
that they could receive due to their status as victims participating in the ICC proceedings.
Q. What is the status of the crime of aggression?
A. States agreed that the crime of aggression fell under the jurisdiction of the Court and included it in Article 5 in the
Rome Statute on 17 July 1998. However, no definition was provided for this crime. On 11 June 2010, the
definition and the framework of the Court’s jurisdiction over the crime of aggression was adopted by state parties
6 / 26
by consensus at the Review Conference of the Rome Statute held in Kampala, Uganda.
The jurisdiction of the Court over the crime of aggression requires 30 ratifications and the adoption by the ASP
after 2017.
As of March 2017 the following 32 states have ratified the Kampala Amendments on the crime of aggression:
Liechtenstein (8 May 2012), Samoa (25 September 2012), Trinidad and Tobago (13 November 2012),
Luxembourg (15 January 2013), Estonia (27 March 2013), Germany (3 June 2013), Botswana (4 June 2013),
Cyprus (25 September 2013), Slovenia (25 September 2013), Andorra (26 September 2013), Uruguay (26
September 2013), Belgium (26 November 2013), Croatia (20 December 2013), Slovakia (29 April 2014) Austria
(17 July 2014), Latvia (25 September 2014), Spain (26 September 2014), Poland (26 September 2014), San Marino
(21 September 2011 war crimes amendments-14 November 2014 Crime of Aggression Amendments), Georgia (5
December 2014), Malta (29 January 2015), Costa Rica (5 February 2015), Czech Republic (12 March 2015),
Switzerland (10 September 2015), Lithuania (7 December 2015), Finland (30 December 2015),El Salvador (3
March 2016), Iceland (17 June 2016), Palestine (26 June 2016), Chile and The Netherlands (26 September 2016),
Portugal (11 April 2017), Argentina (28 April 2017)
Q. What is the record of the ICC operations as of today?
A. Since the Rome Statute entered into force and the Court became operational, four State Parties have referred
their “situations” to the ICC: Uganda, Democratic Republic of Congo, Central African Republic, and Mali. The
UN Security Council has referred two situations to the Court: Darfur (Sudan) and Libya. Sudan’s situation was
adopted through Resolution 1593 adopted on 31 March 2005. The situation in Libya was adopted through
Resolution 1970 of 26 February 2011. Both resolutions have been adopted by the Security Council acting under
Chapter VII of the UN Charter. The resolution to refer the situation in Darfur to the ICC received a unanimous
vote.
The Prosecutor has been authorized by the ICC Pre-Trial Chambers to exercise proprio motu jurisdiction over three
situations: First two situations relate to alleged crimes committed in the course of the post-electoral violence in
Kenya (between December 2007- and January 2008) and in Côte d’Ivoire (between 2002 and 2010) and the third,
most recent, authorization concerns the situation in Georgia where crimes were allegedly committed in and
around South Ossetia between 1 July and 10 October 2008.
Unlike Kenya and Georgia, Côte d’Ivoire was not a State party to the Rome Statute when the alleged crimes
occurred. The ICC was therefore able to conduct the investigations and proceedings on the basis of the Côte
d’Ivoire`s ad hoc acceptance of the ICC jurisdiction under article 12(3) of the Statute, in 2003, which recognised
the Court`s jurisdiction to investigate and prosecute the alleged crimes committed since 19 September 2002. Côte
d’Ivoire ratified the Rome Statute in 2013.
The public information available on the status of the investigations and cases before the ICC may be summarised
as follows (it should be noted that investigations are generally conducted in a confidential manner and arrest
warrants may be sealed for security and protective reasons):
Other potential situations under the jurisdiction of the Court: Currently, the ICC Prosecutor is conducting
preliminary examinations and analysing alleged crimes committed in ten situations: Afghanistan, Burundi,
Colombia, Gabon, Guinea, Iraq/UK, Nigeria, Palestine, Registered vessels of Comoros, Greece and Cambodia,
and Ukraine. The Office of the Prosecutor concluded that there was no reasonable basis to proceed with an
investigation in Venezuela on 9 February 2006-, Republic of Korea on 23 June 2014- and Honduras on 28
October 2015- and decided to close the preliminary examinations.
: Currently, the ICC Prosecutor is conducting preliminary examinations and analysing alleged crimes committed in
eight situations: Afghanistan, Burundi, Colombia, Guinea, Iraq, Nigeria, Palestine, and Ukraine. On 27 October
2015, the Office of the Prosecutor concluded that there was no reasonable basis to proceed with an investigation in
Honduras, and decided to close the preliminary examination.
Q. What does the “principle of complementarity” mean with respect to state sovereignty?
A. Since states retain primary jurisdiction to adjudicate genocide, war crimes, and crimes against humanity, the ICC
cannot act unless states are unwilling or unable to genuinely investigate or prosecute the specific case the
Prosecutor has built. Shielding someone from prosecution or lacking the means to pursue the alleged criminals
are objective factors the Court considers when deciding whether a case is admissible. States have the right to
challenge the admissibility of the case under the ICC during this process.
Q. How can “politically motivated prosecutions” be avoided within the ICC?
A. The Rome Statute contains strict procedural safeguards that prevent the irresponsible use of the Court for
7 / 26
political purposes. Any decision of the independent Prosecutor to proceed with an investigation or prosecution is
subject to strict judicial scrutiny/review, and the Prosecutor and the Judges are accountable to the Assembly of
States Parties of the ICC, which may take disciplinary measures against them if it suspects corruption.
Furthermore, if so warranted, it can remove them in cases of exploitation of justice or other serious breaches of
the Rome Statute. Moreover, States have the possibility to challenge the jurisdiction of the Court before the
commencement of the trial if they perceive prosecutions as “politically motivated” or “frivolous”. These
provisions, along with the independence of the Judges and the Prosecutor guaranteed by the architecture of the
ICC, are of the highest standard in comparison with other tribunals elsewhere.
Q. Can the ICC be used to try crimes committed before the Rome Statute’s entry into force?
A. The ICC does not have retroactive jurisdiction and therefore does not apply to crimes committed before
July 1, 2002. For states that ratify or accede to the Rome Statute following that date, the Statute enters into force
on the first day of the third month following the deposit of the instrument of ratification or accession at the UN
in New York. Ratifying states can lodge a declaration with the ICC Registrar accepting the jurisdiction of the
Court for crimes committed after July 1, 2002. This declaration can be lodged even if a state has not yet decided
to ratify the Rome Statute.
Q. Can the International Criminal Court deal with acts committed by members of terrorist groups?
A. Although the international crime of terrorism is neither defined in a comprehensive manner in international law,
nor outlined in the crimes under the jurisdiction of the Court, the ICC may still be able to prosecute acts
committed by members of terrorist groups, when such acts amount to genocide, war crimes or crimes against
humanity.
In September 2014, in a letter to the UN Security Council under Article 51 of the UN Charter, the US
Government characterised the invasion of Iraq by the purported “Islamic State” (defined as a terrorist group) as a
crime of aggression. However, according to the 2010 Kampala Amendments to the Rome Statute the crime of
aggression cannot be committed by a non-state actor. While the debate on the applicability of the crime of
aggression to terrorist groups is ongoing, there is no doubt that the leaders of terrorist organisations exercising de
facto authority over any given civilian population and territory may be brought to justice for crimes against
humanity, genocide, and war crimes.
Q. Can the International Criminal Court deal with other crimes such as drug trafficking, money laundering,
and/or corruption?
The jurisdiction of the ICC was agreed to reflect customary international law for conduct entailing individual
criminal responsibility at the international level. For this reason, the ICC does not have jurisdiction over
transnational crimes as the mentioned in the titled as tis prohibition is not considered yet to be customary
international law. Moreover, due to the great amount of international conflicts and its finite resources, the ICC
must do triage when prosecuting. Hence, it only adjudicates the most egregious crimes as defined by the
international community: crimes against humanity, war crimes, genocide and crimes against humanity. However,
upon agreement of the state parties and development of international law, the Rome Statute foresees a provision
of amendment (Article 121).
Q. Is the Court a venue exclusively to try individuals from developing countries?
A. No, there are various guarantees to ensure that this does not happen. First, the ICC is comprised of all the
different legal traditions of the world. Furthermore, the three regions most represented in the State Parties are
Africa, Europe, and Latin America. Second, while it is true that conflicts in developing countries, by virtue of
their magnitude and gravity, can attract the attention of the Court, the Court can also investigate citizens of states
not directly related with the conflict to establish if they had participated in financing, promoting, or facilitating the
commission of genocide, war crimes and crimes against humanity. These co-perpetrators can include “white-
collar” criminals who live in European countries or North America. By the principle of complementarity, the
Court can only intervene when a State Party is unwilling or unable to do so. Thus, the ICC prosecutes crimes
under international law without any geographic or geostrategic limitation.
Q. What is the position of the United States towards the International Criminal Court?
A. Despite having participated actively in the negotiations in Rome, the United States opposed the adoption of the
Rome Statute in July 1998, in particular on the grounds that the Prosecutor has the capacity to act on his/her
own motion (proprio motu) and because the Security Council has a limited role vis-à-vis the jurisdiction of the
Court, which is automatic, in the sense that there is no need for the Security Council approval of an investigation,
regarding crimes committed in the territories or by nationals of State Parties (Art. 12, Rome Statute).
Nevertheless, President Bill Clinton signed the Rome Statute in December 2000. Under the Bush administration,
the US opposed the ICC’s jurisdiction over individuals in the territory of States Parties, regardless of their
8 / 26
nationality. Hence, under President George Bush the US withdrew from the Rome Statute in 2002. Shortly
afterwards, the US passed legislation that imposed sanctions on states that wanted to join the ICC but would
refuse to enter into a bilateral non-surrender agreement barring the transfer of any US national or private
contractor of the US Government to the Court.
The United States has shifted its position vis-a-vis the ICC in recent years from one of overt hostility to a
more nuanced and positive stance. Since January 2008, all legislation to "sanction" states under military
funds have been eliminated, and the State Department has confirmed that states that join the ICC
Statute but do not sign a bilateral agreement will
not
be subject to any negative repercussions.
Representatives of the Obama Administration made a number of pro-ICC statements in early 2009, especially in
connection with the arrest warrant against the President of Sudan and the situation in Darfur.
Moreover, the US supported the adoption of UN Security Council resolution 1970 of 26 February 2011 that
referred the Libyan situation (starting from 15 February 2011) to the ICC. The US Ambassador-at-Large for War
Crimes Issues has been clear that while US policy on ratifying the Rome Statute remains unchanged, it is now
engaging on a policy of ‘supportive engagement’ with the Court and does not seek to hinder any country that
wishes to become party to the Rome Statute (see for instance
http://www.state.gov/j/gcj/us_releases/remarks/165257.htm). The improved relations between the ICC and
the United States are illustrated by the words of the US Ambassador to Liberia in October 2011 who pointed out
that any leader who is found guilty of [electoral violence crimes] risks facing the International Criminal Court - "I
ask that you just look at the situation that occurred in Kenya in 2007 and Côte d' Ivoire either this year or last
year. Those who encouraged violence in Kenya are now facing the ICC in The Hague [...]"
On 22 March 2013, the United States facilitated the transfer of the rebel commander Bosco Ntaganda to the ICC.
Ntaganda had walked into the U.S. embassy in Kigali, Rwanda, and asked to be transferred to The Hague, where
he is facing war crimes charges.
United States also voted in favour of the referral of the Syrian situation to the ICC on 22 May 2014,
although, the Security Council was unable to adopt the resolution due to vetoes by Russia and China.
States Parties and PGA continue to engage with the United States, as well as other major powers, to encourage
them to join the Rome Statute.
Q. How can the ICC be an effective institution within the “Rome Statute system”?
A. There are five important conditions to ensure that the ICC is effective.
First, the Rome Statute prescribes the full and effective cooperation of States Parties as a precondition for the
accomplishment of the ICC‘s goals, most importantly to put an end to impunity, to redress the rights of victims,
and to contribute to international peace and security. It relies entirely on national law enforcement systems to
enforce its orders. Moreover, Parliaments can provide vital support to the Court by ratifying the Agreement on
Privileges and Immunities of the Court (APIC), which is designed to give Court officials the necessary legal status to
conduct investigations efficiently, as civil servants of an international judicial institution.
Second, the ICC must be truly complementary to domestic jurisdictions. To this end, States must criminalize the
conduct of the Rome Statute in their domestic legal orders and incorporate the relevant general principles of
international criminal law into their penal codes.
Third, the Court requires financial resources to operate in the challenging context of widespread crimes in
ongoing conflicts.
Fourth, the ICC must remain an independent institution, which operates solely on the basis of evidence and
objective criteria for the application of the law, not in response to popular demand or political aspirations.
Fifth, to ensure that no individual is truly above the law, the Rome Statute must be ratified universally. The
automatic jurisdiction of the ICC can only apply to the territories or the nationals of States Parties to the Statute.
Q. What is the role of Parliamentarians to ensure the effectiveness of the ICC within the “Rome Statute
system”?
A. Parliamentarians play a quintessential role in the ICC system. Parliamentarians can exercise their political and
legislative prerogatives to advance the rule of law worldwide. They can draft and adopt legislation, make motions,
mobilize their governments, engage in peer-to-peer dialogue, public statements, inform their constituencies, and
engage in global efforts to support better understanding and functioning of the ICC. Furthermore,
9 / 26
Parliamentarians can:
1. To ensure that the ICC is truly universal:
- Parliamentarians from States not yet Parties to the Rome Statute can remove legal and political obstacles to
the national ratification/accession process and - on this basis - undertake any appropriate legislative or
political initiative that could contribute to the ratification or accession,
- Parliamentarians from States Parties to the ICC Statute can work with other Parliaments and Governments to
promote the ratification and accession of the Rome Statute within the framework of the overall promotion of
human rights, the Rule of Law, justice, peace, democracy, sustainable development and multilateral
cooperation
- Parliamentarians from all over the world, can increase transparency and accountability, as well as ensure that
Governments do not negotiate agreements or other measures that would permit impunity, either
clandestinely or through public policy decisions.
2. To ensure cooperation with the ICC and the operation of the principle of complementarity,
Parliamentarians can:
- Urge their Governments to draft legislation to effectively implement the Rome Statute and transmit it to
Parliament, or when appropriate, initiate the drafting process themselves [N.B. during more than 13 years of the
Campaign, the PGA legal staff has developed expertise to provide assistance to MPs in these tasks, including in the exercise of
drafting articles for this proposed legislation];
- Appeal to the Executive branch to transmit the Agreement on Privileges and Immunities (APIC) to
Parliament, or the relevant national body for the ratification of treaties, for prompt consideration and
approval.
3. To ensure that the Court has sufficient financial resources for the fight against impunity,
Parliamentarians can:
- Make sure that the Executive branch inserts the yearly contributions to the ICC budget in the national
appropriation bill on foreign relations/international organizations [N.B. most of the budget of the Court is born by
developed or industrialized countries, in accordance with the objective criteria contained in the Rome Statute]
- Make sure that their national budget laws contain appropriate allocations in support of the investigation,
prosecution, and adjudication of international crimes by competent national courts
- Encourage their governments to pledge funds for the Trust Fund for Victims, which supports the victims of the
crimes being tried in the ICC. The Trust Fund of Victims ensures that the ICC not only delivers retributive
and preventative justice, but also restorative justice.
4. To ensure that the independence of the Court is preserved, Parliamentarians:
- Must monitor their governments and make use of both their legislative prerogatives of Parliamentarians as
well as their political prerogatives to protect and ensure the judicial independence of the ICC, develop inter
alia multi-party and inclusive approaches in support of justice, avoiding politicizing or misrepresenting the
scope and power of the Rome Statute or the ICC.
Q. How can Parliamentarians for Global Action (PGA) help?
A. Upon request of Parliamentarians, the International Law and Human Rights Programme of PGA can:
(i) Involve PGA Members and other concerned MPs in peer-to-peer dialogue and cooperation to address
concerns and resolve issues relating to the ICC process at the national level.
(ii) Assist PGA Members and provide up-to-date information on the ICC.
(iii) Examine the national procedures necessary for ratification and implementationwith particular
attention to constitutional issues or other major political and legal obstacles.
(iv) Assist legislators in the preparation and drafting of new legislation, in writing relevant amendments, and
strengthening the existing legislation.
(v) Receive information concerning actions that its members undertake at the national level, and disseminate
it, where appropriate, through international media and/or among key partners.
(vi) Facilitate actions that its members desire to undertake within their own countries or internationally.
10 / 26
3. PARLIAMENTARY ACTION IN SUPPORT OF THE ICC
A.
Universal Representation in the “ICC system”: promoting ratification/accession to the Rome Statute
139 SIGNATORIES TO THE ROME STATUTE AND 124 RATIFICATIONS/ACCESSIONS.
124 states parties are now represented in the ICC system, almost 19 years after the adoption of the Statute at the
1998 Rome Conference. This number shows the broad international support for the Court. Since the 124
ratifications, 77 ratification and accession processes have been successfully completed in national parliaments or
within executive branches thanks to the leadership of PGA Members.
DEMONSTRATIVE LIST OF NATIONAL OBSTACLES PREVENTING RATIFICATION:
1) The initiatives of the United States against the Court between 2002 and 2007 affected the willingness of some
additional countries to join. Though the official position of the US government was to not oppose ICC
ratification by other States, the punitive measures imposed on countries that join the Court and did not sign a
bilateral non-surrender agreement created reluctance on the part of some States to ratify the Rome Statute for
fear of repercussions of the US. However, as reported in the previous section of this KIT, the US government
has softened its anti-ICC stance and the Obama administration has repeatedly expressed between 2009 and 2014
full support for the Court’s proceedings and cases.
2) The non-membership of other geo-strategic powers (China, Russia, and India) have also hampered the
ratification processes of certain countries, while a number of states with borders with powerful states have
decided to ratify as a means of reinforcing their standing in multilateral relations with their neighbour.
3) Lastly, and perhaps most significantly, a relatively large number of countries that have not yet joined the Rome
Statute have not done so in order to avoid potential, or perceived as potential, investigations by the ICC
Prosecutor. Many do this because of their precarious internal situations and/or their involvement in armed
conflicts. In several cases, this concern is based on a mistaken interpretation of the Rome Statute, since it does
not permit the application of its rigorous definitions of international crimes to general situations of human rights
violations. The current debate in certain African States against the ICC is based on misperceptions and
mischaracterizations of the Rome Statute and the ICC (e.g. anti-ICC propaganda), as well as on the fear of
certain powerful and influential individuals to be brought to justice before the ICC.
THE ROLE OF MPS IN PROMOTING UNIVERSAL RATIFICATION
Currently, PGA members are working together to promote ratification, including in the under-represented regions
within the “ICC system”, namely, Asia, the Middle East and North Africa and the Commonwealth of Independent
States (CIS), through the following actions:
1) providing up-to-date information on the ICC,
2) examining the national procedures necessary for ratification and implementationwith particular attention to
constitutional issues or other major obstacles
3) promoting political leadership and initiatives on the ICC within their country.
SUGGESTED PARLIAMENTARY ACTION FOR THE UNIVERSALITY OF THE ROME STATUTE
In order to reach the goal of universal participation in the system of the International Criminal Court:
Parliamentarians from countries that are not yet parties to the ICC Statute should:
- create a country-specific strategy aimed at removing legal and political obstacles to the national
ratification/accession process to the Statute and undertake any appropriate legislative or political initiative
that could contribute to the ratification or accession.
Parliamentarians from countries that are parties to the ICC Statute should:
- intensify their efforts to assure that the ICC is mainstreamed in all available mechanisms of inter-
parliamentary relations as well as in programmes of action designed by Governments to promote human
rights, the rule of law, justice, peace, democracy, sustainable development and multilateral cooperation.
- request your government to promote the ratification of the Rome Statute through bilateral contacts and
multilateral venues, such as the UN General Assembly, the Universal Periodic Review at the United Nations
Human Rights Council, and in regional organisations.
All Parliamentarians should utilise all available international, regional and national venues to ensure that universal
representation in the ICC system is perceived as a true priority by all components of the international, regional and
national communities, including majorities and minorities in National Parliaments.
11 / 26
B.
Ensuring Full Cooperation with the ICC
The Rome Statute created a system of accountability and deterrence for the most serious crimes of international
concern. Within this system, states have the primary responsibility to investigate and prosecute international crimes.
The ICC will intervene only when States are unwilling and/or unable to do so. Within this system, the ICC can be
considered an extension of the judicial system of each state or an agent of the International Community aimed at
putting “an end to impunity”. Thus, in situations where the ICC has jurisdiction, states must provide the necessary
law enforcement systems to enforce its orders, beginning with the request for arrest and surrender of persons charged
with genocide, crimes against humanity, war crimes or the crime of aggression. Without state cooperation, the ICC
cannot fulfil its mandate and the Rome Statute system risks collapse. Thus, cooperation is necessary to ensure the
integrity of the proceedings. Delays from States in responding to cooperation requests reduce the Court’s efficiency
and increase its costs. It also denies justice to the victims who wait for accountability and the truth, as there are no
trials held in abstentia at the ICC.
The importance of states in supporting the Court is recognised in the Rome Statute, which in Part 9 prescribes full
and effective cooperation of State Parties. The obligations on cooperation address conduct (including the provision of
domestic procedures) and result (ensuring full cooperation with the ICC).
THE ROLE OF PARLIAMENTARIANS
Parliamentarians play a key role in ensuring that legal, political, and logistical challenges are overcome to facilitate
cooperation with the ICC. The PGA ICC Campaign assists parliamentarians to address these key challenges,
especially in the following areas:
1) Domestic implementation of the necessary procedure to cooperate effectively with the ICC, including in the
areas of arrest and surrender, and of freezing of assets
2) Political will for the prompt and effective arrest and surrender of individuals sought by the ICC.
Ratification and implementation of the supplemental treaty entitled Agreement on Privileges and
Immunities of the Court (APIC), and other specialised agreements with the ICC, including on Enforcement
of Sentences, Interim Release and Protection and Relocation of Witnesses and Victims.
3) Promoting political support for the Rome Statute system, including financial measures to sustain the Court’s
budget
4) Political advocacy for improved cooperation by the Security Council and other organs of the United Nations
5) Political will to address instances of non-cooperation by states
IMPLEMENTATION OF THE NECESSARY PROVISIONS TO COOPERATE EFFECTIVELY WITH THE ICC
Part 9 of the Rome Statute establishes an obligation for states to cooperate fully with the Court as well as to adopt
internal procedures for cooperation.
Even in monist systems, where the Rome Statute is a self-executing treaty, states need to adapt their procedural laws
to allow national authorities to recognize and enforce requests emanated by the ICC. Furthermore, it is important that
they establish the most effective information-sharing, coordination, and decision-making systems to ensure that those
sought by the ICC are not offered a safe haven.
Even after the Assembly of State Parties to the Rome Statute in 2007 reminded State Parties of their obligation to
enact implementation legislation, one out of three State Parties that have not answered positively to a request for
cooperation sent by Registry citing the absence or insufficiency of implementing legislation as justification” for their
failure to comply. Thus, there is a need to adopt implementing legislation into domestic codes to increase
accountability and cooperation.
According to the information available to PGA, as of November 2016, only 56 states are reported to have the
necessary procedures to lawfully cooperate with the ICC. PGA members are to be credited for their activism in
consolidating such legislation in 21 of those countries. Nevertheless, it is necessary that each of the 124 State Parties
to the Rome Statute meet their obligations to enact provisions on cooperation.
PGA can report that some countries are in the process of drafting or have adopted legislation on cooperation.
States with Draft Legislation on Cooperation with the ICC (as of March 2017):
12 / 26
(*Countries that received technical assistance from PGA)
Americas [14]: Bolivia, Brazil, Chile*, Colombia*, Costa Rica*, Dominica, Dominican Republic*, Ecuador*, El
Salvador*, Guatemala*, Honduras*, Mexico, Paraguay*, Suriname
Africa [13]: Benin, Botswana, Burundi, Chad, Comoros*, Congo, Gabon, Ghana, Lesotho, Liberia, Nigeria, Sierra
Leone, Tanzania (United Republic of)
Asia [2]: Laos (not a State Party), Mongolia.
Europe [1]: Moldova (Republic of).
States with Legislation on Cooperation with the ICC (as of March 2017):
Africa (Subsaharan) [10]: Burkina Faso, Central African Republic (incomplete), Comoros, Democratic Republic of
Congo, Guinea, Kenya, , Mauritius, Senegal, South Africa, Uganda
N.B.: Mali does not have implementing legislation on the cooperation with the ICC, but it concluded an Agreement
on judicial cooperation with the ICC
Americas [5]: Argentina, Canada, Peru, Trinidad and Tobago, Uruguay.
- In Paraguay, the legislation implementing the provision of the Rome Statute on cooperation was
approved by the Chamber of Deputies and is at the moment subject to final adoption by the Senate
Asia [2]: Korea (Republic of), Japan.
Europe [36]: Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark,
Estonia, Finland, France, Georgia, Germany, Greece, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania,
Luxembourg, Malta, Montenegro, Netherlands, Norway, Poland, Portugal, Romania (incomplete), Serbia, Slovakia,
Slovenia, Spain, Sweden, Switzerland, United Kingdom, The former Yugoslav Republic of Macedonia (incomplete).
The Middle East and North Africa [0]
Pacific [3]: Australia, New Zealand, Samoa.
ARREST AND SURRENDER
The Rome Statute does not provide the possibility of holding trials in absentia. Thus, in order to ensure the
commencement and integrity of trial proceedings, States Parties must abide their statutory obligation of complying
with the requests of the Court to arrest and surrender any individual sought for (cf. Article 89 of the Rome Statute).
In the ICC, arrest warrants are issued by the Judges, upon request by the Prosecutor, only after verification of
evidence confirming reasonable grounds to believe that the person sought committed crimes under the jurisdiction of
the Court. Arrest warrants may not be issued if the risk of repetition of the alleged crimes is low and if summons to
voluntarily appear are considered sufficient to ensure the presence of a suspect before the Court.
As of March 2017, 13 public warrants for arrest remain outstanding: (a) Côte d’Ivoire: Simone Gbago, since 2012; (b)
Democratic Republic of the Congo: Sylvestre Mudacumura, since 2012; (c) Kenya: Walter Barasa, since 2013, and Paul
Gicheru and Philip Kipkoech Bett, since 2015; (d) Libya: Saif Al-Islam Gaddafi, since 2011; (e) Darfur (Sudan): Ahmad
Harun and Ali Kushayb, since 2007; Omar Al Bashir, since 2009; Abdel Raheem Muhammad Hussein, since 2012; and
Abdallah Banda Abakaer Nourain, since 2014; and (f) Uganda: Joseph Kony and Vincent Otti.
2
These warrants concern
individuals accused of allegedly committing genocide, crimes against humanity, and war crimes.
AGREEMENT ON PRIVILEGES AND IMMUNITIES OF THE COURT (APIC) AND OTHER SPECIALISED
AGREEMENTS
In addition to the adoption of implementing legislation a number of additional agreements to the Rome Statute are
2
Report of the Bureau on non-cooperation. 18 November 2015. ICC-ASP/14/38.
13 / 26
necessary to expand the existing framework of cooperation with the Court.
Agreement on Privileges and Immunities of the Court (APIC)
3
The ICC is an international organisation independent from the United Nations. Therefore, unlike the ad hoc tribunals
(ICTY and ICTR), it does not benefit from the privileges and immunities that UN members have granted to UN staff
and property. Instead, APIC is designed to give Court officials the protection to conduct investigations efficiently; to
safeguard victims, witnesses and defence counsels; as well as to ensure the confidentiality and safety of the
documents, materials, and information handled by the ICC in the territory of its State Parties.
APIC entered into force after the ratification of ten States. PGA Members promoted the ratification and
implementation of this agreement in several countries (e.g. Albania, Argentina, Belgium, Denmark, Dominican Rep.,
Italy, Mali, New Zealand, Uganda, and Uruguay).
APIC requires the same ratification process of an ordinary international treaty. Any state can join the APIC, not only
states party to the Rome Statute. As of March 2017, only 75 of the 124 State Parties to the Rome Statute (and
Ukraine, not a State Party to the Rome Statute) have ratified the Agreement
4
:
Africa (Sub-Saharan) [13]: Benin, Botswana, Burkina Faso, Central African Republic, DR Congo, Gabon,, Lesotho,
Liberia, Malawi, Mali, Namibia, Senegal, Uganda
Americas [18]: Argentina, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Dominican Rep., Ecuador,
Guyana, Honduras, Mexico, Panama, Paraguay, Peru, Trinidad & Tobago, Uruguay
Asia [1]: Korea (Republic of)
Europe [40]: Albania, Andorra, Austria, Belgium, Bosnia & Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Montenegro, Netherlands, Norway, Poland, Portugal,
Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom, and Ukraine (not a State Party)
The Middle East and North Africa [2]: Tunisia, Palestine
Pacific [2]: New Zealand, Samoa
Specialized Cooperation Agreements
The specialized cooperation agreements have the following common features: (1) they aim at providing legal certainty
to the state on the procedure to follow in order to fully cooperate with the Court; (2) the final decision on whether to
cooperate on voluntary issues such as enforcement of sentences, always remains with the state; (3) financial impact to
a state (if relevant) is to be discussed on an ad hoc basis; and (4) possible capacity building activities by ICC partners
could be foreseen as part of the arrangement.
The conclusion of bilateral agreements between the ICC and a State Party has advantages for both parties.
The main advantages for the ICC are: (1) the quick identification of states willing to cooperate in a specific subject area; (2)
the quick identification of the national contact point and competent authority dealing with the subject matter; (3) the
quick identification of the specific documents to be transmitted, as well as the procedures and rules to be followed, in
order to send a valid request; (4) a better understanding of the internal organization and legal regime of the state in
question; and (5) saving time and money when a concrete request is sent.
The main advantages for State Parties are: (1) the quick identification of the ICC contact point and competent unit within
the Court in charge of a specific request; (2) the certainty of the transmission of a request to the competent national
3
Available at http://www.icc-
cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Agreement+on+the+Privileges+and+immunities+of+the+ICC.
htm.
4
APIC, United Nations Treaty collection, available at
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-13&chapter=18&lang=en&clang=_en .
14 / 26
authority; (3) control over the adequate adaptation of the national legislation and procedures; (4) the establishment of
a network of national competent authorities dealing with a specific request; (5) sharing of knowledge, experience and
training; (6) significant improvement of the concerned practice at the national level; (7) the possibility to decide to
implement a request on a case-by-case basis when it falls beyond the obligation to cooperate; and lastly, (8) the signing
of a bilateral agreement with the ICC is a clear and concrete political demonstration of a state’s commitment in
support of better cooperation with the ICC.
Enforcement of Sentences
The ICC may hold individuals only in preventive and temporary detention, which takes place at a prison administered
by The Netherlands, the host state of the ICC. The Rome Statute provides that, upon conclusion of the trial,
sentences of imprisonment are to be served in a state designated by the Court. The Court selects the state from a list
of those that have indicated their willingness to enforce the sentences of the Court, including the state where the
accused originated from or the state where the crimes were committed. The willingness to be considered as a
potential state where a sentence could be served is expressed through the signature of a bilateral agreement with the
Court. Hosting prisoners is a shared responsibility between states. The more states sign these agreements, the broader
the scope of choices the Chambers has when deciding a host state. Broadening the scope of choices is important as it
shares the burden among more states.
In addition, there are also specific advantages to an agreement on the enforcement of sentences, such as: (1) the
determination of procedure for the transfer to the state of enforcement, the release or the termination of the
enforcement in the concerned state; (2) the specifics of rules on implementation (ne bis in idem, rule of speciality);
and (3) the establishment of a partnership with the International Committee of the Red Cross (ICRC).
As of May 2017, only a handful of State Parties (Argentina, Austria, Belgium, Colombia (not in force yet), Denmark,
Finland, Mali, Norway, Serbia, Sweden and the United Kingdom) have concluded enforcement of sentences
agreements with the Court. The small number of states who have signed up, and their lack of geographical diversity,
means that the ICC cannot place a convict in a familiar cultural setting or near their family.
On 24 November 2015, the ICC and the DRC finalised an ad hoc agreement for each convict, expressing the
willingness of the DRC to accept Mr Lubanga and Mr Katanga for the enforcement of their sentences and providing
a framework to govern such enforcement. On 19 December 2015, Thomas Lubanga Dyilo and Germain Katanga
were transferred to a prison facility in the DRC to serve their respective sentences of imprisonment. This constitutes
the first time that the ICC has designated a state for the enforcement of imprisonment sentences.
Relocation of witnesses and victims
Under Article 68 of the Rome Statute, the ICC has the obligation to protect its witnesses, participating victims, and
any other individual “at risk” on account of ICC proceedings. The measure of last resort for an at-risk individual is
the relocation of both the individual and their relatives. For international relocations, the Court is fully dependent on
the cooperation and support of State Parties on the basis of agreements. The implementation of these agreements is
cost-neutral for the state that is offering assistance to the Court and victims, because through state contributions, the
Court administers a special trust to subsidize relocations. The relocation agreements are extremely flexible as
witnesses are accepted on a case-by-case basis. States may also be interested in concluding agreements on protection
of victims and witnesses with the Court because through this agreement, the Court may also offer assistance to ensure
that the national structures of protection are improved. Thus, these agreements benefit victim protection, limit the
diffusion of confidential information, secure channels of communication, determine the scope of protection
(potentially including relatives), and establish a procedure for withdrawal of protection.
The Court has so far concluded relocation agreements with 18 State Parties. In many cases, the existence of domestic
legislation is considered by states as a pre-condition to enter into agreements with the Court. However, this is still not
sufficient for the Court to fulfil its mandate.
In full respect for the confidential and delicate nature of the work of the Court in this area, PGA continues to engage
parliamentarians in creating political will to enhance support to the Court in the area of witness and victim protection.
Interim and Final release
Article 60 of the Rome Statute and rules 118, 119 and 185 of the Rules of Procedure and Evidence provide the right
15 / 26
for the accused in detention to ask the Chamber for an interim release. However, Chapter IX of the Rome Statute
does not clearly list this topic as one where the cooperation of states is obligatory. Moreover, a number of national
implementing legislations do not have any specific provisions for how to address such requests by the Court.
It is however very important, for the independence and legitimacy of the Court, that the persons that have been
awarded interim release by the Judges can effectively benefit from that right. The basic rights of the defendant would
be seriously jeopardized if the Chamber could not order their interim release because it could not identify a state
willing to cooperate on this issue. Interim releases are not theoretical. It was ordered by the Chamber in the Bemba
and consorts case on 21 October 2014
5
.
The same problem arises for acquittal cases. Rule 185 of the Rules of Procedure and Evidence foresees states that the
Court has to make arrangements for the return of the person. However, for this case, it does not outline any
cooperation obligation for states. If an acquitted person cannot return to the state of arrest -for example, for security
reasons- he or she will have to remain in the detention centre in The Hague as he or she will have no legal status to
stay on Dutch territory. Simply put, we will have an innocent person in prison. Again, the legitimacy of the Court and
the Rome Statute system as a whole would be seriously compromised. It is not possible to just open the doors of the
detention centres as it will happen in a national jurisdiction.
On 10 April 2014, the 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 entered into force. Belgium is the first and the only country accepting to provisionally receive
detainees of the Court on its territory on a temporary basis and under conditions established by the competent
Chamber. This agreement regulates the procedure for the interim release of an ICC detainee and formalizes the
necessary consultations between the Court’s Registry and the Belgian authorities. Furthermore, allowing the Belgian
authorities to examine the Court's requests on a case-by-case basis.
In the case of final release or acquittal cases, the Court has finalized a draft framework agreement that is open for
discussion. It encourages states to contact the Registry if they are interested.
FINANCING THE COURT
Regular Budget of the ICC
Each State Party to the Rome Statute contributes to the ICC Budget with assessed annual contributions that are
calculated on the basis of the Gross National Product (GNP) and other indicators, similar to the assessed
contributions paid each year to the United Nations’ budget. At the national level, governments usually include
assessed contributions to international organisations in the Foreign Affairs’ budget or appropriations, which are
annually submitted to Parliament for consideration and approval. However, PGA suggests that whenever possible,
each State Party should support the budget of the Court from their national budgetary allocations for justice and the
Rule of Law, and not the budget that states devote to Inter-Governmental Organizations (IGOs). In order to protect
the integrity and the independence of the Court, it should not be restricted by a lack of resources, especially since it is
addressing some of the most grievous international crimes. The ICC is not another international bureaucracy, but a
Court of Law that deals with individuals. Therefore, it should be adequately funded by ministries, such as the Ministry
of Justice, that have experience dealing with prosecutors, judges, and the national judicial system.
Trust Fund for Victims
In addition to the regular budget of the Court, the ICC welcomes voluntary contributions, which may be directed
either to the Trust Fund for Victims of Crimes and Their Families (TVF) or to other mechanisms created by the Court to
respond to specific needs. The latter can either be saved or used for situations of need, such as in the case of the
Darfur investigation. The Trust Fund is a necessary tool envisaged by the Rome Statute to collect means of reparations
and compensation for victims of genocide, crimes against humanity, and war crimes.
The Trust Fund for Victims is administered by a Board of eminent personalities nominated and elected by the State
Parties, representing all regions of the world. A former PGA board member seat in the TFV board, Mr. Felipe
5
Decision ordering the release of Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse
Arido, ICC-01/05-01/13-703, Pre- Trial Chamber II; 21 October 2014; available at: https://www.icc-
cpi.int/Pages/record.aspx?docNo=ICC-01/05-01/13-703&ln=en.
16 / 26
Michelini (former MP from Uruguay).
PGA disseminates information on the work of the Court and the TFV to ensure continued financial support by
states. Moreover, it continues to advocate for the inclusion of institutional responses in domestic legislation to
provide reparations to victims of international crimes.
THE SECURITY COUNCIL AND COOPERATION
As long as the Rome Statute is not universally ratified, the Court relies on the UN Security Council to access
situations where it would otherwise not have jurisdiction. Also, with its limited enforcement powers, the ICC is reliant
upon the cooperation and assistance of states, which can be implemented through the intervention of the Security
Council.
While State Parties to the Statute are obliged to cooperate with the Court by virtue of their undertakings as signatories
of the Rome Statute regardless of how the Court is seized of jurisdiction, Non-party States have no obligation to
cooperate with the Court. Cooperation in the case of Non-party States depends on ad hoc agreements or on
obligations created by Security Council resolutions.
Only the Security Council, when acting under Chapter VII of the Charter, has the power to impose binding
obligations on all member states of the UN, regardless of their status with respect to the Rome Statute. In its two
referrals to date, the Security Council, while obliging the states in which the crimes were committed (and other
concerned parties) to cooperate fully with the Court, it recognizing that States non-party to the Rome Statute had no
obligations under the Statute. However, the Security Council urged all States, including non-state parties and
concerned regional and other international organizations to cooperate fully with the Court.
In restricting this potential for cooperation, the Council has significantly diluted the potential effectiveness of the
referral as a mandatory enforcement mechanism. The Council has also failed to provide adequate support to the
enforcement of arrest warrants and compliance with the orders of the Court.
Furthermore, the Court has found on numerous occasions that states have failed to comply with the Rome Statute
and the decisions of the Council, yet the Council has never addressed this issue. Moreover, the Council has purported
to limit the financial resources that the UN could offer to support the costs of investigations and prosecutions in
cases arising from situations referred by the Council.
State Parties are currently engaged to ensure a truly impartial and effective behaviour from the Council. PGA
continues to hold consultations to address these issues that question the legitimacy of the access of the Council to the
Court.
NON-COOPERATION
Although a State Party (or a state engaged in an ad hoc agreement with the Court) that has yet to incorporate the
Rome Statute into its domestic legislation may find itself in a position of not being able to cooperate with the ICC,
non-cooperation shall still be understood as the failure of a State Party or a State. In accordance with Article 86 of the
Rome Statute, states have a duty to fully cooperate with the Court”. The judges of the Court have the capacity to
determine that a state has failed to meet the obligations under the Rome Statute. For instance, as of 1 December
2012, Chad and Malawi have been found to have failed to meet their obligation of cooperating with the Court with
respect to the arrest and surrender of Omar Al-Bashir.
One of the functions of the Assembly of States Parties (ASP) (Article 112, paragraph 2(f)) is “to consider pursuant to
article 87, paragraphs 5 and 7, any question relating to non-cooperation”. The Security Council is granted a similar prerogative
for situations it has referred to the Court under Article 13(b) of the Statute.
Action by the ASP and by the Council is necessary to enforce states to uphold their commitment to cooperate with
the Court and other States Parties to the Rome Statute (or for situations referred by the Security Council, these
obligations are due to other UN Members). In order to respond to instances of non-cooperation, in December 2011
the ASP adopted specific procedures to address this problem. This mechanism allows for numerous diplomatic
measures undertaken mainly by the President of the Assembly. The procedure for non-cooperation was formally
triggered in relation to the visit of Sudanese President Omar Al- Bashir, to Malawi in 2011. PGA members in Malawi
contributed to ensuring that non-cooperation would not be repeated again in the country. The situation in Chad is
different. There are no indications that the application of the Assembly’s procedures on non-cooperation will have
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any effect in Chad.
PGA has been engaged since 2005 in consultations to support the creation of an effective procedure to ensure that
instances of non-cooperation are remedied and that states failing to cooperate are supported politically and technically
to meet their obligations. PGA works tirelessly to ensure that these violations to international law are not repeated.
SUGGESTED PARLIAMENTARY ACTION ON COOPERATION
Domestic Legislation to Implement the Obligations of Cooperation with the ICC
Parliamentarians from countries that have not yet implemented the Statute in their national laws should take initiatives
such as:
- urging their Government to prepare a draft legislation on cooperation with the ICC and transmit it to
Parliament, or when appropriate, initiate the drafting process themselves, and ensuring that the legislation
addresses victim-specific forms of State Party cooperation, such as the tracing and freezing of assets of
accused persons which can ensure appropriate reparations for victims
- communicating to the PGA Secretariat developments or obstacles relating to the legislation, so that the
Secretariat can work on drafting relevant input (e.g. draft articles for legislation) and/or contact relevant
experts from the ICRC or NGOs for appropriate input and comments
- collecting the input from civil society and experts to translate into appropriate parliamentary memoranda,
motions or proposals
- amending the national laws to reject immunity of government officials and incorporate the Agreement on
Privileges and Immunities at the national level
Parliamentarians from countries that have implemented the Statute in their national laws should:
- engage fellow parliamentarians in other countries in working on the implementation of the Rome Statute
- instruct their government to promote the domestic implementation of the Rome Statute in other countries,
for example, using the UN Human Rights Council Universal Periodic Review process to recommend other
states to implement the Rome Statute, and to fully cooperate with the ICC
Arrest and Surrender
Parliamentarians should:
- create political will to respect and enforce the decisions of the Court by continuously calling for the
unyielding implementation of the decisions and orders of the ICC
- demand their governments to ensure that in its foreign and economic relations, non-essential contacts are
severed with individuals subject to an arrest warrant by the ICC
- call their government to avoid supporting the diversion of funds or aid, in the context of humanitarian aid or
peace talks, for the benefit of persons sought by the ICC
- should call their governments to collaborate in arrest operations by providing operational or financial support
to states willing but unable to conduct those operations
- support political consultations taking place at the ASP, the United Nations, and other international
organizations such as INTERPOL to strengthen the international framework of cooperation
Agreement on Privileges and Immunities and Other Specialised Agreements
Parliamentarians should:
- appeal to the executive branch to transmit the Agreement on Privileges and Immunities (APIC) to Parliament
for prompt consideration and approval, in accordance with the relevant national procedure for the
ratification of treaties
- include in their national laws the text of Article 48 of the Rome Statute regarding Privileges and Immunities
- appeal to the executive branch to sign the necessary specialised agreements with the ICC on enforcement of
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sentences and protection of witnesses and victims) and with other states (agreements of extradition and
mutual legal assistance for domestic prosecutions)
Financing the Court
Parliamentarians should:
- ensure that the executive branch duly gives the yearly contribution to the ICC budget in the national
appropriation bill on foreign relations/international organisations and/or justice
- whenever possible, each State Party should support the budget of the Court from the national budgetary
allocation for justice and the Rule of Law, and not the budget that states are devoting to Inter-Governmental
Organizations (IGOs)
- ensure that national budget laws contain appropriate allocations in support of the detection, investigation,
prosecution, and adjudication of international crimes by competent national courts; and
- encourage their governments to pledge funds for the Trust Fund for Victims of Crimes and their Families, to
aid the ICC in not only delivering retributive and preventative justice but also restorative justice
The Security Council and Cooperation
Parliamentarians should:
- call upon their government to adopt positions at the United Nations to bring coherence to the actions of the
Security Council when addressing crimes under the jurisdiction of the Court and to ensure adequate follow-
up for the effective implementation of resolutions referring situations to the jurisdiction of the Court, which
shall not receive any form of interference or influence from the Council and its Members
Non-Cooperation
Parliamentarians:
- are requested to remain vigilant in the case of ICC indictees in their territory, and to alert their government of
the consequences of failing to comply with the Rome Statute
- should facilitate policies to increase the training and capacity of state officials to respond to diplomatic
incidents where compliance with the Rome Statute is at risk
- should provide political support to reward states that comply with ICC decisions
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C. Promoting National Prosecutions (including the prosecution of individuals who finance or otherwise
participate in the commission of international crimes)
The creation of a system of international jurisdiction rests on the premise that the primary competence and authority
to initiate investigations of international crimes rests with states. The statute, therefore, recognizes that states have the
jurisdiction and the primary obligation to investigate, punish, and prevent the core crimes of international concern.
This recognition is reflected in the principle of complementarity, which is the foundation of ICC jurisdiction.
Complementarity means that the ICC will step in only when national judicial systems fail and it can be demonstrated
that the State is either unwilling or unable to bring perpetrators to justice
The principle of complementarity is reflected in several parts of the Rome Statute, for example the paragraph 10 of
the preamble emphasizes that “[…] the International Criminal Court established under this Statute shall be complementary to
national criminal jurisdictions”; and Article 1 of the Statute provides that the International Criminal Court “[…], shall be
complementary to national criminal jurisdictions [...]”.
The principle of complementarity is enshrined in Articles 17 and 53 of the Rome Statute, which deal with the
conditions for a specific case to be admissible at the ICC. The fact that the ICC is exercising jurisdiction in a given
situation must not prevent the territorial or other competent states from also investigating and prosecuting the
atrocities under the jurisdiction of the Court. In these cases, the ICC and states work together to ensure that all
atrocities are adjudicated, all perpetrators are brought to justice, and all victims are addressed.
IMPLEMENTATION OF THE ROME STATUTE IN NATIONAL LAWS
In order to declare a case admissible, the ICC must establish for each case the genuine ability of states to prosecute
cases of crimes under its jurisdiction. One of the primary indicators (but not the only one) whether a state can punish
the crimes is if these crimes are established in the national criminal code. This criterion, coupled with the
incorporation of the General Principles contained in part III of the Statute and the customary law (the principle of
individual responsibility, inadmissibility of official capacity, responsibility of superiors, no status of limitations and
non-applicability of amnesty) is necessary since the ratification of the Statute does not imply that the applicability of
the rules of the Statute is automatic. The incorporation of crimes and general principles contained in the Rome
Statute into domestic law is the first step to ensuring that the legal framework will give the state the ability to exercise
jurisdiction over the crimes.
In order to ensure effective domestic prosecutions, states may need to amend their substantive criminal laws and
incorporate genocide, crimes against humanity, war crimes, and the general principles applicable to such crimes into
their codes, including the military law codes. Domestic implementation of the principles of the Rome and definition
of crimes under the Statute carries important benefits for states:
1) Deterrent effect: detailed legislation indicates behaviour sought to be avoided allowing the socialization of
the fundamental rules governing national coexistence under a legal framework that protects primarily the
human dignity and the right to be free from crimes.
2) Protect the primacy of the national jurisdiction over crimes of genocide, crimes against humanity, war
crimes, and crimes of aggression, and ensure that the ultimate objectives of the Rome Statute, namely, the
strengthening of the rule of law and the prevention of the most serious international crimes are achieved.
3) The explicit definition of crimes and penalties, rather than the simple reference to international conventions:
a) facilitates the work of the judge who can then refer to national law, b) provides judicial certainty and
protection to individuals on which law is applicable, and c) avoids the necessity of adopting laws ex post facto
that distort the principle of legality. Thus, the definition guarantees the respect for the principles of nulla
poena sine lege and nullum crimen sine lege.
4) Even if legislating on crimes may be highly political, the exercise is worth undertaking as it helps to de-
politicise domestic prosecutions and insulate the judicial branches from undue influence, thus,
promoting the equal application of the law and the separation of powers.
Drafting national legislation that implements the Rome Statute in the national legal order is a difficult task, given the
complexity of the Statute and the often-competing legislative agendas. The Role of PGA is to provide technical and
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political assistance to ensure the usage of parliamentary prerogatives to ensure the implementation of the Rome
Statute in order to facilitate domestic prosecutions.
According to the information available to PGA, as of March 2017, only 71 States Parties around the world have
incorporated the definitions and general principles of the Rome Statute into domestic legislation enabling their
domestic systems to prosecute ICC crimes. PGA members are to be credited for their activism in consolidating such
legislation in at least 26 of those countries; however, it is necessary that all nations, and in particular each of the 124
States parties to the Rome Statute are capable of fulfilling their obligation to exercise domestic jurisdiction over these
serious crimes.
States with Draft Legislation on Complementarity (as of March 2017):
Africa (Subsaharan) [13 SP and 1 NSP]: Benin, Botswana, Burundi, Chad*, Congo, Gabon, Ghana*, Lesotho,
Liberia*, Morocco* (not a State- Party), Nigeria*, Seychelles, Sierra Leone*, United Republic of Tanzania
Americas [16 SP]: Bolivia*, Brazil*, Chile*, Colombia*, Costa Rica*, Dominica, Dominican Republic*, Ecuador*, El
Salvador*, Guatemala*, Honduras*, Mexico*, Paraguay*, Peru*
6
, Suriname, Venezuela*
Europe [3 SP]: Hungary, Italy, Republic of Moldova
Asia [4 SP]: Afghanistan, Jordan, Laos, Mongolia
States with Legislation incorporating ICC crimes and general principles (as of March 2017):
(SP- State Party, NSP- Not a State Party)
Africa (Sub-saharan) [16 SP and 2 NSP]: Burkina Faso, Burundi, , , Central African Republic* (partial), Comoros*,
Congo (incomplete), Cote d'Ivôire*, Democratic Republic of Congo*, Ethiopia [NSP], Guinea*, Kenya*, Lesotho,
Mali*, Mauritius*, Niger, Rwanda [NSP], Senegal, South Africa, Uganda*
Americas [9 SP and 2 NSP]: Argentina, Canada, Chile*, Colombia (partial), Costa Rica* (partial)Ecuador*,,
Panama* (partial), Trinidad and Tobago, Uruguay* [NSP: Nicaragua; and the USA- has legislation on genocide and
war crimes, but not on crimes against humanity]
Asia [5 SP]: Bangladesh (incomplete), Cambodia, Korea (Republic of), Philippines*, Timor-Leste
Europe [37 SP and 7NSP]: Andorra, , (Austria, Belgium, Bosnia-Herzegovina, Bulgaria (incomplete), Croatia,
Cyprus, Czech Republic*, Denmark, Estonia, Finland, France, Georgia*, Germany, Greece, Iceland, Ireland*, Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Montenegro, Netherlands, Norway, Poland*, Portugal*, Republic of
Moldova, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, the Former Yugoslav Republic of
Macedonia, United Kingdom [+ NSP: Armenia, Azerbaijan, the Russian Federation, Turkey* (incomplete), Ukraine*,
the Vatican, , as well as Kosovo, which is a de facto State that is currently not allowed to deposit the ratification of
treaties at the United Nations]
The Middle East and North Africa [0 SP and 1 NSP] (Morocco* not a State Party - inclusion of Rome Statute in
reformed draft Penal Code)
Pacific [4 SP and 1 NSP]: Australia, Fiji, New Zealand, Samoa (and Indonesia* as a not a State Party- inclusion of
Rome Statute crimes in reformed criminal code)
PROMOTION OF DOMESTIC PROSECUTIONS
National judicial proceedings have many advantages on international trials:
1) They are closer to the victims and affected communities and enable more easily the participation of the
victims in the proceedings
6
*PGA provided technical assistance for substantive implementation.
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2) Evidence gathering is also easier given territorial proximity between the investigative and prosecutorial offices
and the crime scenes
3) National proceedings tend to be faster and less costly
4) Enforcement of arrest warrants is easier and less complex than in cases of international justice
5) Ending impunity for these powerful individuals can play a significant role in strengthening a culture of the
rule of law and legality without which other phenomena such as corruption, drug trafficking,
political violence, and other crimes may continue to prosper.
6) The most serious crimes not only damage the victims directly affected by the violence but also causes many
indirect effects with disastrous consequences for the entire population. According to the 2011 World
Development Report of the Word Bank the lack of accountability has led to great levels of impunity and repeated cycles
of violence [a situation that] can wipe out an entire generation of economic progress.
7) Since domestic trials reinforce public confidence and create the conditions necessary to realize sustainable
development, it is crucial to strengthen legitimate institutions. It is imperative to strengthen institutions that
deliver justice in order to break the cycles of impunity -violence.
In full respect to the separation of powers, and of judicial independence at both the national and international level,
parliamentarians play an important role in promoting a culture of Rule of Law, where the law is applied equally and
effectively. For this reason, Parliamentarians must provide political support to domestic trials.
However, one must recognise the objective reality of States that do not have the political will and/or the ability to
bring to justice individuals who hold the highest positions of power in the State apparatus or in rebel organizations,
hence who are in a position to control, or to escape from, any form of available domestic jurisdiction. For these type
of most powerful influential individuals, the ICC remains the most appropriate forum for victims to access justice.
WHITE COLLAR CRIMES
It is important that states and the ICC take action against citizens that engage in financial transactions that either
promote or facilitate the commission of genocide, war crimes, crimes against humanity and crime of aggression,
regardless whether the citizen is a national of a state that is directly involved with the conflict or not. Therefore, to
fulfil the complementarity principle at the national level, State Parties must not only prosecute those ordering or
committing the relevant crimes, but also those who aid and abet their commission.
As the ICC Prosecutor has decided that she will concentrate her limited resources in prosecuting the main political
and military leaders of militias, paramilitary groups, and/or governmental forces in selected situations, State Parties
can support the work of the Court by ensuring that other perpetrators and accomplices are prosecuted at the
domestic level. Such co-perpetrators may include white-collar criminals who reside in Europe, North American or
other parts of the world.
In this regard, the Office of the Prosecutor of the ICC has recognized the need to clarify the role of businesses with
regard to certain gross violations of human rights. For example, the Prosecutor has highlighted the fact that the
crimes affecting the Ituri region in the Democratic Republic of Congo extend beyond the boundaries of the province.
The United Nations Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth in the DRC has
already established a number of causality-links between the atrocities committed in the country and businesses
operating in Europe, Asia, and North America.
Hence, legislators should appeal for national authorities to prosecute not only of those who commit acts of genocide,
war crimes, and crimes against humanity, but also of businesspersons and financiers who knowingly and willingly
finance criminal organizations and militias operating in conflicts. These individuals may be charged with direct
participation in these crimes, as there is wide jurisprudence both at the national and international level demonstrating
their contribution to the chain of events leading to genocide, crimes against humanity, and war crimes. An important
development on this front is in The Netherlands, where a prosecution for genocide has been successfully launched
against a Dutch businessperson accused of being the principal provider of chemical weapon components allegedly
utilised by the former Iraqi regime to attack Kurdish civilians in 1988.
7
JUSTICE FOR GENDER-BASED CRIMES AND SEXUAL VIOLENCE
7
See Frans van Anraat case’s opening at CNN.com: Dutch Iraq war crimes case opens - Mar 18, 2005
http://www.cnn.com/2005/WORLD/europe/03/18/dutch.saddam/index.html
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Despite the prevalence of sexual violence and gender-based violence in conflicts, international law has only recently begun
to define and criminalize sexual and gender-based crimes. The ICC presents a ground-breaking step towards justice:
Articles 7 and 8 of the Rome Statute define rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization,
and other forms of sexual violence as war crimes and crimes against humanity. Human trafficking is included within the
crime against humanity of enslavement. Moreover, for the first time, gender-based persecution is recognized as a crime
against humanity.
Implementing legislation, therefore, requires special attention to incorporate sexual and gender-based crimes into
domestic law. At the same time, it is imperative that victims of these crimes have knowledge of their rights and access
to justice at the national level. Importantly, there could be a positive spill-over effect on sexual violence and gender
justice at the domestic level. The implementation of these laws will increase protection for victims of gender violence
and/or sexual violence and will expand existing definitions of domestic crimes to bring them in line with international
definitions, where appropriate and necessary.
SUGGESTED PARLIAMENTARY ACTION TO PROMOTE DOMESTIC PROSECUTIONS:
In order to ensure that states meet their obligation to prevent and redress at the national level the most serious
international crimes, Parliamentarians must:
Ensure the preparation and adoption of legislation that incorporates the definitions of the crimes and general
principles under the Rome Statute
Promote the conclusion of agreements for mutual legal assistance and inter-state cooperation to ensure that
any state conducting prosecutions of ICC crimes receives the necessary support to ensure fair and effective
prosecutions
Launch motions or resolutions that promote the conduct of national investigations and prosecutions by
adopting legislation and encouraging policies to reinforce the police as well as the investigative and
prosecutorial capacities of the state, in particular for the commission of white collar crimes
Promote the development of programs that protect victims in particular of sexual nature
Refrain, as politicians committed to the rule of law, from interfering in the judicial process against
international crimes and take actions that uphold the independent action of judges and prosecutors
Protect the independence of the judges and prosecutors, which is essential to ensuring due process and fair
trials
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D.
The 2010 Kampala Amendments to the Rome Statute
From May 31 until June 11 2010, the State Parties met in Kampala, Uganda for the 1
st
Review of the Rome Statute,
which was mandated to be convened 9 years after the entry into force of the Statute. The Review Conference adopted
by consensus two resolutions that amended the list of crimes under the jurisdiction of the Court. Resolution 5 of the
Review Conference amended Article 8 on war crimes. Resolution 6, followed the instructions in Article 5(2) of the
Statute and provided a definition and a procedure for the jurisdiction of the Court over the crime of aggression. Both
amendments have been adopted in the Statute; however, their application for nationals and territories of state parties
requires a ratification procedure under domestic procedures equal to those of international treaties.
As of May 2017, 34 States have ratified the Kampala Amendments on Crime of Aggression and 34 on war crimes.
Parliamentarians from State Parties have an important role in ensuring the entry into force of these important
amendments for their nationals and territories.
AMENDMENTS ON WAR CRIMES
The first amendment to the Rome Statute adopted in Resolution 5 of the Review Conference concerns the expansion
of the list of war crimes contained in Article 8 of the Rome Statute.
The amendment criminalizes the employment, during times of non-international armed conflict, of the use of:
- poison or poisoned weapons
- asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices
- bullets which expand or flatten easily in the human body (also known as dum-dum bullets)
This amendment closes an important loophole in the Rome Statute. On the basis of the Geneva Conventions and
other treaties, the use of these weapons is contained in the 1998 Statute as war crimes but only if they are used in an
international armed conflict. The 2010 amendment reflects existing customary international law, which requires the
expansion of the criminalisation to conflicts not of an international character as well.
This amendment ensures that any victim, regardless of the type of conflict, receives the same protection of the law.
This amendment promotes a central goal of international humanitarian law: the protection of civilians. Poison or
poisoned weapons, employing asphyxiating, poisonous or other gases and all analogous liquids, materials or devices,
are weapons that are by nature indiscriminate and can pose a particular threat to civilians. Therefore, their use should
also be criminalized during times of non-international armed conflict.
The amendment requires ratification by each State Party. It is also suggested that states that ratify the Rome Statute
after 2010, can ratify the 2010 version by explicitly indicating so in their instrument deposited at the United Nations.
THE CRIME OF AGGRESSION
In the 2010 Kampala Review Conference, the State Parties to the Rome Statute adopted Resolution RC/Res.6 by
consensus. The resolution amended the Rome Statute to include a definition of the crime of aggression and
provisions on the conditions for the exercise of jurisdiction.
This was an important step taken by the State Parties since, once activated, the amendments will, for the first time in
the history of mankind, establish a permanent system of international criminal accountability aimed at enforcing the
most fundamental rule governing the peaceful coexistence of nations: the prohibition of the illegal use of force. The
Court’s jurisdiction over the crime of aggression will provide some measure of criminal accountability at the
international level for this «supreme crime» for the first time since the Nuremberg and Tokyo Trials.
Activating the Court’s jurisdiction over this crime will help:
- Deterring illegal uses of force, as leaders will have to take the Court’s jurisdiction into account when making
relevant decisions
- Making an important contribution to the protection of human rights since acts of aggression typically
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instigate countless violations of human rights and international humanitarian law. Moreover, these violations
primarily affect the most vulnerable individuals during a conflict: women and children
- Protecting the right to life of individual soldiers since the Rome Statute does not protect the life of
combatants who are unlawfully sent to war. Furthermore, the Rome Statute does not protect the right to life
of the soldiers of the attacked state as they are considered to be legitimate targets who may be killed at will,
provided the relevant rules pertaining to the conduct of hostilities are followed
- Avoiding double standards in the national decision-making to ensure that while the armed forces are made
responsible for war crimes, the political actors that lead nations into armed conflict are also held responsible
- Completing the Rome Statute since the Kampala amendments on the crime of aggression emanated from a
mandate given by the Rome Statute. By ratifying the amendment, State Parties show their support for the
Court and for the integrity and full effect of the Rome Statute
- Deterring the commission of acts of aggression by governments and prevent the disastrous repercussions of
such acts
Definition of the crime of aggression
In essence, the crime of aggression is when a political or military leader of a state illegally orders the use of force
against another state, which by character, gravity, and scale manifests a violation of the United Nations Charter.
This definition applies to individuals and is based on pre-existing jurisprudence and international legal practice. For
example, when defining the act of the individual perpetrator, the amendment uses the following words: “planning,
preparation, initiation or execution” of an act of aggression, words that closely resemble those used in the Nuremberg
Charter to define Crimes Against Peace. Moreover, the definition of aggression uses the core elements of the 1974
General Assembly definition of [the act of] aggression.
Thus, the definition of the crime of aggression contains two parts: first, Article 8 bis contains a general clause
requiring “the use of armed force by a state against the sovereignty, territorial integrity or political independence of
another state, or in any other manner inconsistent with the Charter of the United Nations.” This formulation mirrors
Article 1 of the 1974 definition. Accordingly, the use of force in lawful self-defence, as well as the use of force
authorized by the Security Council cannot qualify as an act of aggression. Second, Article 8 bis contains a list of acts of
aggression that is taken verbatim from Article 3 of the 1974 GA Definition, such as the invasion, military occupation,
and/or bombardment by the armed forces of one state against another.
A core element of the definition is its focus on the crime of aggression as a leadership crime; that is, centred on
individuals in a position to control the military actions of a state. Nevertheless, actions by irregular armed groups
when controlled by another state may also fall under the jurisdiction of the ICC.
Activation of jurisdiction
Upon ratification of the amendments by a State Party, the Kampala Amendments enter into force for this state’s
territory and nationals. But, the ICC may only exercise its jurisdiction over crimes of aggression until 1 year after the
amendments have entered into force for at least 30 State Parties and the Assembly of State Parties have taken an
additional one-time decision activating the Court’s jurisdiction. They may do so only after 1 January 2017, by
consensus or by at least an absolute two-thirds majority of State Parties. With respect to the principle of no
retroactivity, the ICC may only exercise jurisdictions for crimes committed after the activation of the jurisdiction of the
Court.
Important elements of the amendment
a) No jurisdiction over non-States Parties:
According to paragraph 5, the ICC may not exercise jurisdiction regarding non-State Parties to the Rome Statute.
Non-State Parties are thus excluded both as potential aggressor or victim states; however, this exclusion will not apply
to situations that are referred by the Security Council.
b) Mechanisms to Trigger the Jurisdiction of the Court
The amendment on the crime of aggression preserves the three modalities of access to the Court as for the other three
crimes, namely a state referral, a referral by the Security Council and proprio motu of the Prosecutor on the basis of
information submitted to him/her by individuals, international organisations, or any other actor.
c) Role of the UN Security Council
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The new provisions regarding the crime of aggression accord to the ICC the same degree of judicial independence
from the UN Security Council as already existed regarding the other three core crimes. Notably, there is no
requirement for the Security Council to actively determine the existence of an act of aggression or to authorize ICC
investigations for the Court to proceed.
The Security Council, after having been informed by the Prosecutor of his or her intention to formally open an
investigation, can determine that an act of aggression has been committed. Such a determination is a sufficient, but not
necessary, condition for the investigation to proceed. The Prosecutor must give six months to the Security Council to
make such a determination. But the ICC is not dependent on action by the Council because if such determination is
not made, the Prosecutor may still proceed, provided that the judges of the Pre-Trial Division authorize him/her to do
so. This investigation must follow the same procedure as any other proprio motu investigations for the other 3 crimes.
d) Cooperation and the Principle of Complementarity
The Kampala Amendments on the crime of aggression preserve all the features of the Rome Statute, including the
ICC’s complementary nature and its function as an extension of states’ domestic legal systems. For this reason, states
are required to also incorporate the definition of the crime of aggression into their domestic legislation to protect their
territories against aggression from other states, and to ensure that leaders do not engage in the crime of aggression.
In addition, domestic legislation must ensure that State Parties are ready to cooperate with the Court in any
investigation or prosecution related to the crime of aggression in their or other states.
SUGGESTED PARLIAMENTARY ACTION TO ACTIVATE THE KAMPALA AMENDMENTS:
Parliamentarians play a central role in the ratification and implementation of the Kampala amendments. This is
especially the case because the related decisions, in most countries, must be discussed and approved by the national
parliament.
In order to contribute to the prevention of the illegal use of force, and to activate the global mechanism at the ICC
for this purpose, parliamentarians from a state party to the Rome Statute are requested to:
- Organise parliamentary hearings to discuss the outcome and importance of the Kampala amendment on the
crime of aggression
- Question your government on the status of the preparation and submission to parliament (or to the Cabinet)
of the Kampala ratification and implementation bills
- Prepare and submit a private members bill on the domestic implementation of the Kampala amendments for
consideration by your parliament
- Question your government on their position regarding a positive decision to activate the ICC´s jurisdiction
over the crime of aggression in 2017 at the ASP, and on their participation in initiatives that promote the
ratification of the Kampala Amendments by as many states as possible
- Use your political prerogatives to mobilize support to prevent the illegal use of force and establish the widest
protection of civilians and armed forces during an armed conflict.
Parliamentarians from states non-parties, are requested to:
- Ensure that government and parliamentary discussions on ratification or accession to the Rome Statute are
made on the basis of the 2010 version of the Statute as adopted by the Review Conference
- Prepare and submit a private members bill including the Kampala amendments for consideration by their
parliament
- Use their political prerogatives to mobilize support to prevent the illegal use of force
For more information on PGA’s work on the ratification and domestic implementation of the Kampala
Amendments, please visit:
http://www.pgaction.org/programmes/ilhr/ICC-Kampala.html
Also, you can consult the webpage of the Global Institute for the Prevention of Aggression, and download
the Kampala Ratification Kit here:
http://crimeofaggression.info/
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CONTACTS
Parliamentary Campaign for the Effectiveness and Universality of the ICC
International Law and Human Rights Programme (ILHRP)
Parliamentarians for Global Action
Convenors 2017
Ms. Barbara Lochbihler, MEP (Germany)
Mr. Kula Segaran, MP (Malaysia)
Deputy Convenors 2017
Mr. Lamin Thiam, MP (Senegal)
Mr Mark Pritchard, MP (United Kingdom)
Programme Staff
Dr. David Donat-Cattin (Italy) Secretary General, PGA, donat@pgaction.org (New York)
Ms. Leyla Nikjou (Austria) Senior Programme Officer, ILHRP, leyla.nikjou@pgaction.org (New York)
Ms Marion Chahuneau (France), Programme Officer, ILHR, marion.chahuneau@pgaction.org (The
Hague)
Ms. Frederika Schweighoferova (Slovakia), Programme Officer, ILHR, schweighoferova@pgaction.org
(The Hague)
Ms. Melissa Verpile (Haiti), Programme Officer, ILHR, melissa.verpile@pgaction.org (New York)