Domestic implementation of the Statute of the International Criminal Court
Workshop 7, 28th International Conference of the Red Cross and Red Crescent, Geneva, 2 to 6 December 2003
Note : The present report doesn't necessarily reflect the views of the ICRC.
Organizer: Government of the Netherlands
The workshop was divided into three sections referring to the following topics: (1) Introduction of the International Criminal Court (ICC) and general approaches to implementation; (2) Implementation of the co-operation obligations; (3) adaptation of national criminal law.
Each of the sections was introduced by a number of speakers. The first section was introduced by Mr. Harry Verweij, Deputy Head of the Task Force ICC, Netherlands Ministry of Foreign Affairs, Ms. Cristina Pellandini, legal adviser, Advisory Service on international humanitarian law, International Committee of the Red Cross (ICRC) and Ms. Colleen Sword, legal adviser, Ministry of Foreign Affairs, Canada. The second section was introduced by Dr. Hans Bevers, legal advisor, Netherlands Ministry of Justice, Ms. Ariane Acke, Head Humanitarian Law, Belgium Red Cross Flanders, Mr. Franc Miksa, State Under-secretary, International Law Department, Slovenian Ministry of Foreign Affairs. and Ms. Silvia Fernandez de Gurmendi, Chef de Cabinet and Special Advisor to the Prosecutor, ICC. The third section was introduced by Dr. Hans Bevers, Dr. Thomas Läufer, Director General and legal advisor, German Ministry of Justice
A number of speakers explained what the ICC is, and at the same time reminded the audience that the expecta tions with regard to the ICC should be able to be managed. It was stressed that the ICC is part of a system for the repression of the crime of genocide, crimes against humanity and war crimes that comprises prosecution of these crimes by States and by the ICC which exercises complementary jurisdiction. It was mentioned that the ICC is now in the process of establishing itself and laying down its operational regulations and policies and that the Prosecutor's office is working on specific situations as well as on strengthening the complementarity system.
The special advisor to the Prosecutor of the ICC stressed that the principle of complementarity on the premises of which the ICC is framed is crucial and that the Prosecutor encourages national prosecutions as part of its functions. She informed that the Prosecutor will only act in cases where the national criminal justice system really fails. It was underlined that in such cases, the co-operation between the ICC Prosecutor and (UN) agencies or personnel that are operational on the ground will be essential. A speedy conclusion of an UN-ICC relationship agreement is therefore important, as will be the cooperation between States and the ICC. In this respect it was also underlined that it is important that the ICC Prosecutor will be seen not to act but on serious allegations and not on frivolous complaints.
The experts from Canada, Slovenia, The Netherlands and Germany then explained how these countries had ratified and implemented the Statute of Rome. Topics discussed related to co-operation with the Court and implementation of obligations under the complementarity principle. All speakers stressed that countries had to make important decisions as to the type of jurisdiction to assert for the crimes of the Rome Statute, as to which crimes to make punishable under national law and which provisions needed to be created in national law to allow them to effecti vely cooperate with the Court. In addition, the ICRC reminded the participants of the advisory services it is able to offer to countries that wish to ratify or have ratified the Statute. These services include legal advice (on ratification, on criminalization of war crimes) and technical assistance. When advising States the ICRC encourages them not to look only at the ICC-Statute when creating or extending national jurisdiction for international crimes, but to take all obligations that result for them from international law, treaty based or customary. in to account.
Participants in the workshop asked questions and made comments on immunities, universal jurisdiction and on the enforcement of sentences pronounced by the ICC. With regard to immunities, the question was raised whether heads of State may enjoy immunity from prosecution under national law if they don't under the Rome Statute. The practices of the various countries questioned on the topic differed in this respect. However, all speakers agreed that at the international level, there is no immunity from surrender to the Court for a head of State suspected of having committed a crime under the Statute.
The representative of the Red Cross of Belgium addressed an altogether different question related to immunities, that of Red Cross humanitarian workers. Humanitarian workers may in some cases have unique knowledge of international crimes that have been committed, but should not be forced to testify, according to this speaker. She mentioned that whereas ICRC personnel enjoys a special status - they cannot be forced to testify before the ICC - other Red Cross and Red Crescent humanitarian workers (from International Federation and National Societies) do not, although they may need such a special protection vis-à-vis the Court.
With regard to the principle of universal jurisdiction, the question on how universal universal jurisdiction is in practice was raised. Again the representatives of the States referred to (such as Canada, Germany, the Netherlands, Spain) made clear that their respective countries'approaches to establishing jurisdiction over international crimes differed. It was mentioned that Germany, Canada and The Netherlands have established forms of secondary universal jurisdiction. For example they require that the suspect is present on the territory to start an investigation and prosecution.
With regard to the detention of persons convicted by the ICC, all speakers agreed that it will be essential that countries enter into agreements with the Court to this end. The representatives of The Netherlands, host country of the Court, stressed that for their country the conclusion of such an agreement with the Court at this stage would be premature, since it had not yet a clear view of the consequences of the obligations The Netherlands already has under the Statute to serve as the Court's " safety net " for the enforcement of prison sentences.
The conclusions of the discussions of the workshop may be summarised as follows: implementation of the ICC Statute is complex but achievable due to the existence of a rich variety of sources to draw on and serve as models that have been developed and a wide range of expertise for technical assistance that is available. Both, the ICRC and individual States like Canada, Germany and the Netherlands are offering such support.
The Chairman concluded in reminding of the need for also providing practical and logistical support to the Court and of the importance to work towards increasing the number of States Parties to the Rome Statute and strengthening implementation thereof. He also stressed that it will be important to provide technical assistance where needed, to start up outreach programmes and to strengthen the ICC as an institution.