B Explanatory
memorandum, by Mrs Herta Däubler-Gmelin
1 Introduction
“The best chance humankind
has ever had to end the ‘culture of impunity’ is within our grasp.
We must not let it fall.”Note
1. This report stems from a motion
for a resolution (Assembly
Doc. 11032) tabled by Mrs Däubler-Gmelin and others on co-operation
with the International Criminal Court (ICC) and its universality,
dated 26 September 2006, appealing to Council of Europe member and
observer states,
inter alia,
to ratify the Rome Statue and other enabling legal instruments,
and urging “all states to fully co-operate with the court in the
fight against impunity for the most serious crimes of international
concern.”
Note
2. The Rome Statute of the International Criminal Court (ICC,
the court), which entered into force on 1 July 2002, is widely considered
to be one of the most significant accomplishments in the development
of international criminal law. It set up the first ever permanent,
independent judicial institution with jurisdiction over individuals
for the commission of genocide, crimes against humanity and war
crimes.
Note Such optimism is reflected
in the preamble of the Rome Statute of the ICC,
Note which endeavours to punish “the
most serious crimes of concern to the international community as
a whole”, and pledges “to put an end to impunity for the perpetrators
of these crimes and thus to contribute to the prevention of these
crimes.” The preamble further aims to promote effective prosecution
by “taking measures at the national level and by enhancing international co-operation”
and stresses “that the International Criminal Court established
under this Statute shall be complementary to national criminal jurisdictions.”
As a result, states have been accorded an important role in the
system of international criminal justice under the auspices of the
ICC.
3. Since its adoption in 1998, the Rome Statute of the ICC has
been ratified by 108 states from all over the world.
Note The
ICC’s method of creation is unprecedented in the sense that it was
created by an international treaty by states themselves, ensuring
“that the court broadly reflected the aspirations and objectives
of the international community.”
Note Unfortunately,
a number of states have still not ratified the Rome Statute, with pronounced
regional disparities. Africa is the most strongly represented region,
while central Asia and the Middle East are still under-represented
among ICC states parties (for a list of ratifications by countries
and regions, please consult the websites
www.icc-cpi.int and
www.iccnow.org ).
Note The
fact that many states are not party to the Rome Statute, including
eight Council of Europe member states (Armenia, Azerbaijan, the
Czech Republic, Moldova, Monaco, Russian Federation, Turkey and
Ukraine), one Council of Europe observer state (the United States)
Note and one observer state with
the Parliamentary Assembly (Israel) underpins the need for continued
efforts to promote ratification worldwide by “cultivating awareness
and understanding of the court’s functions”
Note and to support the ICC by encouraging
the implementation of domestic legislation consistent with the Rome
Statute.
Note
4. Philippe Kirsch, President of the ICC, attributes some countries’
reticence towards the ICC to a lack of understanding of the court
and its role.
Note He
believes, “[t]he more that people understand that the court is a necessary
and a credible institution, the more that support for its mission
and its operation will grow.”
Note
5. The fact that the Rome Statute entered into force only four
years after its constitutive framework was negotiated is indicative
of the intense efforts made to promote the ICC globally. Aside from
the important contribution of non-governmental organisations, many
international and intergovernmental organisations, including the
Council of Europe, have played an active role in encouraging the
universal ratification of the Rome Statute.
Note According to the
Coalition for the International Criminal Court (CICC), the Council
of Europe has “been among the
very first international
organisations to call for the creation of a permanent international criminal
court.”
Note In particular, the
vast array of resolutions and recommendations of the Assembly on
this matter demonstrates its interest in this institution.
Note In
addition, the Assembly’s Sub-Committee on Crime Problems and the
Fight against Terrorism has engaged in dialogue with high-ranking
officials of the ICC in April 2006.
Note The
Committee on Legal Advisers on Public International Law (CAHDI)
has organised four major consultations with Council of Europe member
states on the implications for the latter of the ratification of
the Rome Statute and has regularly advocated the implementation
of the Rome Statute into national legislation.
Note The Venice Commission has examined the
constitutional issues raised by the ratification of the Rome Statute.
Note In light of its demonstrated commitment
to the ICC, and its relationship with those member or observer states
of the Council of Europe and the observer state of the Parliamentary
Assembly which have not ratified the Rome Statute to date, the Council
of Europe must continue to promote its ratification and effective implementation.
6. The ICC’s Assembly of States Parties (ASP)
Note has
recently reiterated its plea to states parties “to proactively promote
universality and full implementation”, in all their contacts, political
and otherwise, including through bilateral and regional relationships
with nonstates parties, regional groups and regional organisations.
Note It
further urges states parties to intensify their own commitment to
the ICC “so as to ensure a strong, effective and efficient institution
and thereby encourage other states to join.”
Note
7. A brief examination of the court’s structure and co-operation
regime may contribute to eliminate the misconceptions which fuel
the reticence that ultimately stands in the way of ratification
by some countries, including Council of Europe member states and
an observer state and a Parliamentary Assembly observer state. By
way of example, the position of the United States towards the ICC,
which has asserted that the ICC is over-broad in its potential exercise
of jurisdiction over non-state party nationals, reflects a misunderstanding both
of the Rome Statute and of existing state practice – including its
own – under international law and international treaties.
Note In
addition, such an overview will underscore the vital role of the
ICC on a global scale and the urgent need for universal ratification.
As stated by the ASP, “[u]niversality of the Rome Statute of the International
Criminal Court is imperative if we are to end impunity for the perpetrators
of the most serious crimes of international concern, contribute
to the prevention of such crimes, and guarantee lasting respect
for and enforcement of international justice.”
Note Aside from ratification, “[f]ull and effective
implementation of the Rome Statute by all states parties is equally
vital to the achievement of these objectives.”
Note Such implementation
should include enabling legal instruments, notably the Agreement
on Privileges and Immunities of the ICC (APIC), which bestows certain
privileges and immunities on ICC officials and staff as are necessary for
the independent and effective performance of their duties.
Note To date, 14 Council of Europe
member states have not ratified the APIC, including seven countries
which are states parties to the Rome Statute (Bosnia and Herzegovina,
Georgia, Malta, Poland, San Marino, Spain and Switzerland). Interestingly,
Ukraine has ratified the APIC without being as yet party to the
Rome Statute. I am pleased that the Netherlands as the ICC’s host state
finally ratified the agreement in August 2008.
2 Jurisdictional ambit of
the International Criminal Court (ICC)
2.1 Subject matter jurisdiction
(ratio materiae)
8. Article 5.1 of the Rome Statute,
supplemented by an auxiliary instrument which provides a comprehensive
catalogue of the elements of crimes,
Note sets
out the core crimes over which the ICC has jurisdiction: genocide,
crimes against humanity, war crimes, and after formulation of a
definition, the crime of aggression.
Note The Rome Statute’s preamble
recognises these crimes as “the most serious crimes of concern to
the international community as a whole.”
Note The crime of aggression (and the lack of a
definition thereof to date) has garnered much debate and could represent
a possible reason for states not to ratify the Rome Statute.
Note It appears, however, that it is not
so much the definition of the crime of aggression itself but rather the
question about the court’s jurisdiction over that crime, and its
relationship to the UN Security Council,
Note which is creating continued
challenges.
Note In particular, after
the Rome Conference of 1998, the “great powers” (and permanent members
of the Security Council) continued to voice their fears about the
court becoming a politically motivated propaganda tool which could
condemn even legitimate use of force in line with the UN Charter.
Note
9. Despite the continued difficulties in agreeing on a definition
of the crime of aggression, the Rome Statute is in full force as
regards the other crimes under its jurisdiction. Although these
crimes are embedded in a variety of international conventions and
international customary norms,
Note the
Rome Statute is a more progressive reflection of current trends
and developments in international customary law. Aside from reconsidering
a number of prerequisite elements of international crimes, the Rome
Statute has been groundbreaking in criminalising some acts for the
very first time, as illustrated by the gender-based crime provisions.
In contrast to the statutes governing the International Criminal
Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), the
Rome Statute deals comprehensively with gender-based crimes.
Note For
the first time, various acts of genderbased violence are defined
as international crimes in their own right rather than merely as
offences against honour and dignity. Significantly, the Rome Statute
contains the first codification of the crimes of forced prostitution
and sexual slavery in the international sphere. As Bedont and Hall-Martinez point
out, “[t]he Rome Statute represents a significant step in overcoming
the discriminatory and inadequate treatment of sexual violence under
international law.”
Note The Rome Statute’s progressiveness
is exemplified by the notion that “[i]t is not anymore acceptable
to argue that, in the absence of the express criminalisation of
this conduct under domestic law, it is illegitimate to make findings
as of their binding nature to a given case directly under international
law.”
Note
10. These advanced provisions echo the preamble’s optimism and
determination. They further serve as an important guide for the
prosecution by national jurisdictions of crimes within the jurisdiction
of the ICC. However, the fact that numerous states have either not
ratified the Rome Statute or have not adequately brought their domestic
legislation in line with the Rome Statute, is problematic in so
far as it promulgates a dissimilar definition of crimes and, as
a result, an incongruent prosecutorial standard between the ICC
and national criminal jurisdictions.
Note
11. A pertinent illustration of the foregoing assertion is the
crime of torture. The UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment defines torture as
requiring a purpose and a state action component (“for such purposes
as obtaining … information or a confession”, punishment, intimidation,
coercion, “or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person
acting in an official capacity”).
Note By contrast, the Rome Statute
has done away with both elements, Article 7.2.
e extending
to acts which could be “purposeless or merely sadistic”
Note and
requiring only that the victim be “in the custody or under the control
of the accused.”
Note Burgers
and Danelius note that the UN convention was primarily motivated
by the need to capture state sponsored violence against its citizens,
which had increased during the 20th century.
Note A growing realisation
on the part of the international community that torture is in the
meantime commonly engaged in by belligerents during internal and
international armed conflicts has influenced the definition of the
Rome Statute. The Rome Statute’s comprehensive understanding of
torture therefore more adequately captures the nature of the crime
in that it “better reflects the how and by whom torture is committed.”
Note
12. Where a country is either not party to the Rome Statute or
has not implemented the Rome Statute and its subsidiary instruments
into its domestic legislation, a suspect tried before a national
court is in less jeopardy than before the ICC for the same act because
the national definition of torture is restricted by the purpose
for which it is committed and the status of the perpetrator. This
shows that ratification must be followed by proper implementation
of the Rome Statute in national law. Although a small number of
ICC states parties have aligned their domestic laws with the Rome
Statute, the majority of states parties have made little if any
progress in this matter.
Note As stressed by President Kirsch, “[i]n
order for the principle of complementarity to work, national jurisdictions
need to adopt domestic legislation prohibiting crimes within the
jurisdiction of the court.”
Note
2.2 Temporal jurisdiction (ratione
temporis)
13. Contrary to its ad hoc predecessors,
the ICTY and ICTR, which are both temporally and geographically constrained,
the ICC’s reach is broader because it is permanent, the crimes over
which it has jurisdiction are not confined to a particular region,
and its jurisdiction is prospective rather than retrospective.
Note The court’s jurisdictional ambit is limited
to events from 1 July 2002 onwards, the date of its entry into force.
However, where a country becomes state party after such date, the
ICC only has jurisdiction for that state from the date of ratification,
unless the country accepts jurisdiction of the court for the period
prior thereto (Rome Statute, Article 11.2), but in no case before
1 July 2002.
Note Under Article 12.3 of the Rome Statute,
ICC jurisdiction extends to non-states parties, which have accepted
the jurisdiction.
2.3 Triggering mechanisms
14. There are three principle ways
in which a case may be brought before the ICC (Rome Statute, Article
13).
15. Firstly, states parties may refer a situation to the court
(Rome Statute, Article 14). Two cases currently before the ICC,
relating to crimes committed on the territory of northern Uganda
and the Democratic Republic of Congo, were initiated in this manner.
Note Most
recently, an investigation was launched in the Central African Republic
following a referral by the government of that state.
16. Secondly, the prosecutor may initiate an investigation
proprio motu subject to authorisation
by ICC judges (Rome Statute, Article 15). In both of the foregoing
scenarios, jurisdiction is limited to 1. nationals of a state party;
2. crimes taking place on the territory of a state party or 3. nationals
or crimes taking place on the territory of a non-state party which
accepts the jurisdiction of the court. In this case, ICC jurisdiction
extends to non-states parties with respect to the crime in question,
and that state “shall co-operate without any delay or exception”
(Rome Statute, Article 12.3).
Note
17. Thirdly, a case can be referred to the ICC by the UN Security
Council, acting under Chapter VII of the UN Charter, irrespective
of nationality or territoriality considerations. The situation in
Darfur, Sudan, a non-state party, which is currently before the
ICC, was referred to it by the UN Security Council in March 2005.
Note
18. Inevitably, the nature of the referral has a significant impact
on the subsequent co-operation by the state in question with the
ICC in the investigation and prosecution of crimes. The short ICC
experience has already demonstrated this aptly. As a result, the
ICC’s Chief Prosecutor, Luis Moreno Ocampo, has encouraged voluntary
referrals by states as a way to achieve enhanced co-operation. He
notes:
“While
my authority as the Prosecutor to initiate investigations by the
proprio motu power is a critical aspect of the Office’s independence,
I have adopted the policy of inviting and welcoming voluntary referrals
by territorial states as a first step in triggering the jurisdiction
of the court. This policy resulted in referrals for what would become
the court’s first two situations: northern Uganda and the DRC. The method
of inviting investigations by voluntary referral has increased the
likelihood of important co-operation and on-the-ground support to
carry out the investigation and prosecution.”Note
19. In addition, the ability to co-operate with the ICC pro vides
affected states and their civil societies with an important opportunity
to send a strong message to the victims of the most serious international
crimes about their commitment to ending impunity and achieving justice
in the region.
2.4 Gravity of crimes
20. Although it is clear that all
crimes within the jurisdiction of the ICC are very grave, the Rome
Statute conceptualises “gravity” as an additional admissibility
criteria to justify further action by the court (Article 17.
d). The Chief Prosecutor, Luis Moreno
Ocampo, has recently stated that in making a determination of gravity,
the Office of the Prosecutor is guided by the following factors,
inter alia: the scale of the crimes,
the nature of the crimes, the manner of commission of the crimes,
and the impact of the crimes.
Note
2.5 The principle of complementarity
21. Contrary to the ICTY and ICTR,
which have primacy over national courts, the ICC’s jurisdiction
is complementary to national jurisdictions. The principle of complementarity
(set out in the preamble and Articles 1 and 17) is the result of
a “delicate balance” between state sovereignty and international
justice, backed by the conviction that national criminal systems
are in a better position to effectively prosecute international crimes.
Note Although an exact definition of the notion
of “complementarity” is not proffered in the statute, Michael Newton
points out that “the plain text of Article 1 compels the conclusion
that the International Criminal Court is intended to
supplement the foundation of domestic
punishment of international violations, rather than
supplant domestic enforcement of
international norms.”
Note The preamble’s message
is clear in “recalling that it is the duty of every state to exercise
its criminal jurisdiction over those responsible for international
crimes.” At the heart of the principle of complementarity is a state’s
“unwillingness” or “inability” to prosecute international crimes,
set out in Article 17.2 and 17.3 of the Rome Statute.
22. “Unwillingness” is ascertained “having regard to the principles
of due process recognised in international law” where: 1. national
courts hold proceedings with the “purpose of shielding the person
concerned from criminal responsibility”; 2. a delay in bringing
proceedings is “inconsistent with an intent to bring the person concerned
to justice”; or 3. proceedings are not carried out in an independent
or impartial manner.
Note A determination of “unwillingness” is easily
made in a situation where bad faith is employed by the national judicial
authority in order to circumvent ICC jurisdiction, such as where
a trial is stage-managed in order to shield a suspect, or where
prosecution is refused altogether.
Note Greater complexities present themselves
in situations where efforts are genuine but insufficient, where
a conviction is followed by a pardon, or where a more or less effective
investigation leads to a decision not to prosecute.
23. “Inability” in turn is defined as “a total or substantial
collapse or unavailability of its national judicial system,” which
occurs when “the state is unable to obtain the accused or the necessary
evidence and testimony or otherwise unable to carry out the proceedings.”
Note
24. It is worth noting that the negative phrasing of Article 17,
referring to “inadmissibility”,
Note suggests that the drafters’
intention was clearly to bestow a subsidiary or secondary position
on the court
vis-à-vis national criminal
jurisdictions. The result is that the ICC’s jurisdictional scheme
is confined by Article 17, allowing the court to assume jurisdiction
only in limited situations.
Note The fact that
states merely need to demonstrate their willingness and ability
to investigate an international crime within the jurisdiction of
the ICC in order to avoid the ICC’s jurisdiction should silence
any fears – especially of states which have a functioning judiciary
and a genuine will to bring perpetrators of international crimes
to justice – that the court could assume jurisdiction against the
will of the state concerned.
3 Key features of the ICC’s
co-operation regime
25. Co-operation represents a fundamental
building block upon which the entire ICC system rests, as set out
in Part 9 (“International Co-operation and Judicial Assistance”)
of the Rome Statute. Article 86 of the Rome Statute explicitly recalls
states parties’ general obligation to “co-operate fully with the
court in its investigation and prosecution of crimes within the
jurisdiction of the court.” Under Article 87.1.
a, the ICC “shall have the authority
to make requests to states parties for co-operation”. Under Article
87.5.
a, the ICC may also “invite any
state not party to this Statute to provide assistance under this
part on the basis of an ad hoc arrangement, an agreement with such
state or any other appropriate basis.” Such co-operation concerns
a variety of issues, such as assistance in gathering evidence, in
executing arrest warrants (that is, in locating, arresting and transferring
suspects), identifying and protecting witnesses,
Note enforcing sentences
of convicted persons, and so on. For instance, in two of the cases
presently before the court, northern Uganda and Darfur, where arrest warrants
have been issued, it is of vital importance that states assist the
ICC in apprehending and transferring the suspects to the court in
The Hague.
Note Such co-operation
is particularly crucial in light of the fact that the ICC, much
like the ICTY and ICTR, does not have its own police force or any
other enforcement mechanism commonly at the disposal of national
courts.
Note
26. To enlist such co-operation, the ICC has been actively engaging
in external communication,
Note general outreach,
Note and outreach relating to specific
cases,
Note taking
into account factors such as the context of operations, target groups
(general population, media, NGOs, victims, government/opposition,
traditional and religious leaders, etc.), phases of the juridical
process, messages, communication tools, etc. Although the primary
responsibility lies with the court to engage in active outreach
activities
Note the
court does not have the financial or human resources to act alone.
States, national and international organisations as well as non-governmental
organisations are often wellplaced to assist in this task.
27. The following plea by President Kirsch sums up the above:
“… the
court cannot accomplish its mission on its own. The support of states,
intergovernmental and nongovernmental organisations (NGOs), and
the international community at large, is necessary for its success.
As the court’s personal and territorial jurisdiction is limited
…, universal ratification of its Statute is necessary for the court
to achieve a truly global reach in the fight against impunity. Ratification, however,
is only the initial step towards the court reaching its full potential.
States parties and non-states parties alike can contribute to a
strong and effective court in many ways. The investigation and prosecution
of specific cases will not only require the co-operation of the
states where the atrocities occurred, but will also call upon the
resources of all states which can contribute to the court’s operations. The
ICC relies upon the practical assistance of states in relation to
different stages of its proceedings, from the arrest of suspects
to the enforcement of the sentences of the convicted.”Note
4 Arguments advanced by Council
of Europe member states which have not yet ratified the Rome Statute
28. At its meeting on 26 June 2007,
the committee considered and approved a questionnaire, which was subsequently
sent, on 16 July 2007, to the chairpersons of national delegations
of the eight Council of Europe member states (Armenia, Azerbaijan,
the Czech Republic, Moldova, Monaco, Russian Federation, Turkey
and Ukraine) and to the relevant authorities of two Council of Europe
observer states (Japan and the USA) and of one Parliamentary Assembly
observer state (Israel) which had/have not yet ratified the Rome
Statute. The purpose of the questionnaire was to obtain information
from these states about their precise reasons for not ratifying
the Rome Statute and/or implementing legislation so as to be able
to address and correct any misconceptions about the ICC that may
persist.
29. The questionnaire comprised the following questions:
1. What
are your country’s reasons for not ratifying the Rome Statute of
the International Criminal Court?
If there are several reasons,
please list them in order of importance, if any, and in as detailed
a manner as possible.
2. Does your country intend
to ratify the Rome Statute in the near future?
If so, please indicate the
approximate timeframe foreseen.
a. Are there specific constitutional
issues raised by the ratification of the Rome Statute?
If so, please explain in detail
and indicate which formal steps your country envisages taking prior
to ratification.
b. Has your country made any
formal steps towards implementing the Rome Statute into national
law?
30. Of the 11 questionnaires sent out, replies were received from
the following Council of Europe member states: Armenia, Azerbaijan,
the Czech Republic, Monaco and Ukraine, as well as two Council of
Europe observer states: Japan and the United States of America.
Note
31. I note with satisfaction that Japan has in the meantime ratified
the Rome Statute, on 17 July 2007, a symbolic step which will hopefully
help persuade other Asian countries to ratify it in the near future.
Replies are still outstanding from three Council of Europe member
states, namely: Moldova, Russia, Turkey and one Parliamentary Assembly
observer state: Israel. Of the replies received, Armenia, Ukraine
and the Czech Republic have indicated their intention to ratify
the Rome Statute in the near future, although, due to constitutional
issues the former two states have not provided any timeframe yet.
The Czech Republic has indicated its intention to ratify by the
end of 2008. Although no reply was received from the Turkish authorities, there
is some indication that Turkey intends to ratify the Rome Statute
in the future, although there is no sign as to when that may be.
Turkey’s main hesitation appears to lie in the absence of a definition
of terrorism, which it hopes will be made an urgent priority during
the Review Conference of 2010. Two Council of Europe member states,
namely Azerbaijan and Monaco, as well as one Council of Europe observer
state, the United States, have indicated that they have no intention
of ratifying the Rome Statute in the near future.
Note In
the case of Azerbaijan, this has been justified by the absence of
a definition of the crime of aggression and the lack of retroactive
effect of the Rome Statute prior to July 2002. In the case of Monaco,
the reluctance to ratify is based on constitutional issues as well
as the belief that Monaco, as a country which respects human rights,
is not likely to be involved in crimes which belong to the jurisdiction
of the ICC. The United States, in turn, has reiterated that while
it does not intend to become a party to the Rome Statute, it has
sought to adopt a practical approach toward other ICC states parties
in advancing the shared goal of promoting international criminal justice.
It acknowledges, however, that in some instances, such as in the
case of the crimes being committed in Darfur, the ICC may have a
role to play.
32. While I must respect the decision of individual states not
to ratify the Rome Statute, however regrettable, I do not find the
reasons put forward to justify this decision convincing. A careful
analysis of the various replies reveals certain misconceptions about
the ICC, which I have sought to elucidate in a more general manner throughout
this memorandum and which require no additional comment here.
33. But the replies by Azerbaijan and Monaco give rise to additional
comments. In the case of Azerbaijan, the fact that the Rome Statute
has no retroactive effect prior to July 2002 has, in my view, no
bearing on the authority of the court as regards those grave international
crimes which do fall into its ambit. I am not convinced by Azerbaijan’s
argument saying effectively that they refuse to join the ICC because
it wishes the ICC to have additional competences, going back further
into the past and covering an additional crime. By not joining, Azerbaijan
sends the contrary message – that it does not support the ICC at
all. Monaco argues that since it respects human rights, no crimes
coming within the jurisdiction of the ICC would ever be committed
on its territory. With all due respect, I disagree with this position
for two reasons. Firstly, the very fact that a state’s government
recognises and complies with universal human rights standards should
be an argument in favour of ratification not against, the ICC symbolising
a global commitment to uphold universal human rights standards and
to eradicate impunity for international crimes on a global scale.
A country’s ratification not only demonstrates its own commitment
to human rights, but sends an important message about the crucial
need to fight impunity to those countries on whose territory the
commission of crimes within the ICC’s jurisdiction is perhaps more
likely to take place. Secondly, given that the ICC has jurisdiction
over individuals (“natural persons”) under the terms of Article
25 of the Rome Statute, the fact that the government complies with international
human rights standards does not exclude the possibility that individual
state or non-state actors commit such crimes. In fact, three of
the four situations currently pending before the ICC to date have
been referred to it by the respective governments themselves, involving
crimes allegedly committed on their territories,
inter alia, by non-state actors.
Note
5 Conclusion
and recommendations: the Council of Europe’s role
34. Over the last sixty years,
the world has witnessed the creation of a variety of ad hoc international tribunals
in order to prosecute the gravest international crimes. The ICC,
the first ever permanent judicial institution, which its president,
Mr Kirsch, calls “a humanitarian imperative”,
Note has
an arduous task. With a broad geographical and temporal reach, and
a progressive understanding of international crimes, it is built
on an intricate system of complementarity which seeks to empower
national states to investigate and prosecute such crimes, assuming
jurisdiction only as a last resort. Complementarity requires not
only universality of the Rome Statute, but also its effective implementation
into domestic systems as well as continued close co-operation by
states and non-states parties in providing practical and judicial
assistance to it.
35. The Council of Europe, with important contributions from such
bodies as the Parliamentary Assembly, the CAHDI and the Venice Commission,
is uniquely placed vis-à-vis its own member states to assist in
the ICC’s universal ratification campaign.
36. As eight Council of Europe member states, one Council of Europe
observer state and one Parliamentary Assembly observer state have
not ratified the Rome Statute to date, and numerous member states
have not yet enacted effective implementing legislation, the Council
of Europe must continue its efforts to promote universal ratification.
This could be achieved by providing political support and technical
assistance to states wishing to ratify the Rome Statute.
Note
37. While other issues have been raised in this report (for example
the lack of national implementing legislation in countries which
are already states parties to the Rome Statute, or the still outstanding
definition of the crime of aggression), the immediate focus is universal
ratification. A thorough examination of the other issues may need
to be taken up in a separate report.
38. The Committee on Legal Affairs and Human Rights therefore
recommends to the Assembly to urge those Council of Europe member
and observer states and the Parliamentary Assembly observer states
which have not yet done so to:
- sign
and ratify without further delay the Rome Statute and the Agreement
on the Privileges and Immunities of the ICC;
- adopt effective national implementing legislation at the
earliest opportunity and encourage third states to do so;
- protect the integrity of the Rome Statute as recommended
in Resolutions 1300 (2002) and 1336 (2003).Note
39. In addition, the committee proposes that the Assembly recommends
that Council of Europe member and observer states and the Parliamentary
Assembly observer states:
- fully
co-operate with the ICC in the fight against impunity for the most
serious crimes of international concern;
- empower their judicial and law enforcement authorities
in order to exercise the states’ primary jurisdiction over crimes
within the purview of the ICC;
- make meaningful financial contributions to the ICC’s Trust
Fund for Victims;
- incorporate in their legal orders relevant standards on
victims’ rights, without prejudice to existing higher standards
in some Council of Europe member and observer states and Parliamentary
Assembly observer states.
Reporting committee: Committee on Legal Affairs and Human
Rights.
Reference to committee: Doc. 11032 and Reference No. 3280 of 6 October 2006.
Draft resolution unanimously adopted by the committee on 9
September 2008.
Members of the committee: Mrs Herta Däubler-Gmelin (Chairperson),
Mr Christos Pourgourides,
Mr Pietro Marcenaro, Mrs Nino Nakashidzé, (Vice-Chairpersons),
Mr Francis Agius, Mr José
Luis Arnaut, Mrs Meritxell Batet Lamaña,
Mrs Marie-Louise Bemelmans-Videc,
Mrs Anna Benaki, Mr Erol Aslan Cebeci, Mrs Ingrida Circene (alternate:
Mr Boriss Cilevičs), Mrs Alma
Čolo, Mr Joe Costello (alternate: Mr Terry Leyden),
Mrs Lydie Err, Mr Valeriy Fedorov,
Mrs Mirjana Ferić-Vac, Mr Aniello
Formisano (alternate: Mr Andrea Manzella),
Mr György Frunda, Mr Jean-Charles
Gardetto, Mr József Gedei, Mrs Svetlana Goryacheva (alternate: Mr Arsen Fadzaev), Mrs Carina Hägg, Mr Holger Haibach, Mrs Gultakin Hajiyeva, Mrs Karin
Hakl, Mr Andres Herkel, Mr Serhiy Holovaty, Mr Michel Hunault, Mr Rafael Huseynov, Mrs Fatme Ilyaz,
Mr Kastriot Islami, Mr Želijko Ivanji, Mrs Iglica Ivanova, Mrs Kateřina Jacques,
Mr Karol Karski, Mr András Kelemen, Mrs Kateřina Konečná, Mr Eduard Kukan, Mr Oleksandr Lavrynovych
(alternate: Mr Ivan Popescu),
Mrs Darja Lavtižar-Bebler, Mrs Sabine LeutheusserSchnarrenberger,
Mr Humfrey Malins, Mr Andrija
Mandić, Mr Alberto Martins, Mr Dick Marty,
Mrs Assunta Meloni, Mr Morten Messerschmidt, Mrs Ilinka Mitreva,
Mr Philippe Monfils, Mr Alejandro Muñoz Alonso (alternate: Mr Miguel Barceló-Pérez), Mr Felix Müri, Mr Philippe Nachbar, Mr Fritz
Neugebauer, Mr Tomislav Nikolić, Mr Anastassios Papaligouras (alternate:
Mr Theodoros Pangalos), Mrs Maria
Postoico, Mrs Marietta de Pourbaix-Lundin, Mr John Prescott (alternate:
Mrs Ann Clwyd), Mr Valeriy Pysarenko, Mrs Marie-Line Reynaud,
Mr François Rochebloine, Mr Francesco Saverio Romano, Mr Paul Rowen,
Mr Armen Rustamyan, Mr Kimmo
Sasi, Mr Ellert Schram, Mr Christoph Strässer, Lord John Tomlinson,
Mr Mihai Tudose, Mr Tuğrul Türkeş,
Mrs Özlem Türköne, Mr Vasile
Ioan Dănuţ Ungureanu, Mr Øyvind Vaksdal, Mr Hugo Vandenberghe,
Mr Egidijus Vareikis, Mr Klaas de Vries,
Mr Dimitry Vyatkin, Mrs Renate Wohlwend, Mr Jordi Xuclà i Costa, Mr Marco Zacchera, Mr Krzysztof
Zaremba, Mr Łukasz Zbonikowski.
NB: The names of the members present at the meeting are printed
in bold.
The draft resolution will be discussed at a later sitting.
