PERMANENT COUNCIL OF THE OEA/Ser.G
ORGANIZATION OF AMERICAN STATES CP/CAJP-2457/07 rev. 1
5 March 2007
COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS Original: Spanish
REPORT
WORKING MEETING ON THE INTERNATIONAL CRIMINAL COURT
February 2, 2007
Washington, D.C.
Simón Bolívar Room
(Document prepared by the Office of International Law)
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REPORT
WORKING MEETING ON THE INTERNATIONAL CRIMINAL COURT
February 2, 2007
Washington, D.C.
Simón Bolívar Room
(Document prepared by the Office of International Law)
Introduction
At its thirty-sixth regular session, held in Santo Domingo (June 2006), the OAS General Assembly adopted resolution AG/RES. 2176 (XXXVI-O/06), “Promotion of the International Criminal Court,” which called upon the Permanent Council to hold, with the support of the General Secretariat, a working meeting on appropriate measures that states should take to cooperate with the International Court in the investigation, prosecution, and punishment of the perpetrators of war crimes, crimes against humanity, genocide, and crimes against the administration of justice of the International Criminal Court.
That working meeting was held within the framework of the Committee on Juridical and Political Affairs (hereinafter “CAJP”), with the support of the OAS Office of International Law, on Friday, February 2, 2007. It was inaugurated by the Chair of the CAJP, Ambassdor Osmar Chohfi, Permanent Representative of Brazil to the OAS.
As the Agenda for the Meeting notes (CP/CAJP-2427/06 rev.3 – See Appendix I), the meeting consisted of two initial presentations and three panel discussions. The first panel discussed how to handle the challenges facing states in respect of the obligation to cooperate fully with the International Criminal Court. The second panel discussed the activities of international agencies and organizations in cooperation with the International Criminal Court. The third panel dealt with victims under the Rome Statute.
This document summarizes the main ideas to emerge in the presentations and discussions at the working meeting. Brief biographies of the panelists can be found in document CP/CAJP/INF.35 (See Appendix II) and the texts of the speeches and presentations are contained in document CP/CAJP/INF.36 (See Appendix III).
Presentations
At the start of the working meeting, the Chair of the CAJP pointed out that this working meeting was being held under the aegis of the Committee for the third consecutive year and he thanked the representative of the Office of the Prosecutor of the International Criminal Court, the delegate of the International Committee of the Red Cross, and all the civil society and government experts for attending the meeting.
The Legal Officer of the Office of International Law, Luis Toro Utillano, then gave a briefing on OAS activities in connection with the General Assembly resolution on Promotion of the International Criminal Court. He explained the activities carried out by OAS organs, agencies, and entities since 1999, that is to say, one year prior to the adoption of the Rome Statute. He also pointed out that OAS member states account for over one fifth of the states parties to the Rome Statute (23 out of the 104). He then summarized the work in this area carried out by the Inter-American Juridical Committee pursuant to a mandate of the OAS General Assembly in 2005, which requested that the Committee prepare a questionnaire to be presented to OAS member states on the extent to which their laws enable them to cooperate with the International Criminal Court and that it submit a report on the results of the questionnaire to the Permanent Council for forwarding to the General Assembly. Dr.Toro said that the report in question had been transmitted to the Permanent Council on April 29, 2006 and he recalled that that, through resolution CJI/RES.105 (LXVIII-O/06), the Inter-American Juridical Committee asked the member states that had not yet replied to the questionnaire to kindly complete it, and asked those states parties to the Statute of the International Criminal Court that have complied with the process of passing laws and implementing Parts IX and X of that State to remit that information to the CJI.
Completing this section of presentations, the representative of the Office of the Prosecutor of the International Criminal Court, Olivia Swaak-Goldman, outlined the principal activities of the Court and analyzed the three investigations underway, which involve citizens of the Congo, Uganda, and Darfur:
o The Congo case was presented as a fine example of cooperation between the Security Council and the national authorities.
o The Uganda case showed the importance of interaction between the local authorities and the Office of the Prosecutor. It also transpired that the issuing of arrest warrants by local courts may help prevent crimes.
o In the Darfur case, it was explained that actions by the Office of the Prosecutor help contain impunity, but greater participation by other social agents is required to achieve peace.
Panels
The first panel on “The obligation to cooperate fully with the International Criminal Court: challenges facing states” began at 11:30 a.m. There were six panelists, whose presentations are summarized below:
· Senator Raynell Andreychuck of Canada explained the role of legislators in promoting the universality of the International Criminal Court and implementing the Rome Statute in national legal systems, and she pointed the work done in this field by the organization known as Parliamentarians for Global Action. In the Senator’s view, one part that legislators can play is to create awareness and facilitate a better understanding of institutions like the International Criminal Court, emphasizing the work done at the national level to combat impunity. She said that experience showed that political will is required to overcome technical hurdles and achieve a consensus.
· Claudio Troncoso Repetto, Director of Legal Affairs of the Ministry of Foreign Affairs of Chile, maintained that the International Criminal Court is a subsidiary body that complements national jurisdiction and he pointed to the importance of the principle of compatibility. He indicated that it is not a final instance, but rather an organ that intervenes in the event of incompatibility or lack of jurisdiction of the national criminal courts. Dr. Troncoso ended his presentation by underscoring two challenges confronting states, namely, the tasks associated with incrimination and cooperation. He said that, in all cases, states may, in domestic law, go beyond what is agreed upon by the international community.
· Oscar López Goldarecena, an independent expert on human rights, international humanitarian law, and the Rome Statute, referred to specific aspects of the Uruguayan law, passed in September 2006, that serves as an illustration of cooperation with the International Criminal Court (the law can be found at http://www.presidencia.gub.uy/ web/leyes/2006/09/CM214_18_09_2006_00002.PDF). The principle of complementarity was also emphasized. As regards procedural matters, he drew attention to Uruguay’s experience of participation by all sectors of civil society in the debate on the issue.
· Olivia Swaak-Goldman provided an exhaustive list of the ways in which states can cooperate with the Office of the Prosecutor or with the International Criminal Court at the various stages of proceedings, investigation, and trial; a very useful contribution that had been requested by OAS member states at the working meeting held last year.
· Eduardo Bertoni, Executive Director of the Due Process of Law Foundation, underscored the complexity of the subject of requests for assistance with information. He alluded to the specific mechanisms in the Rome Statute to ensure respect for principles relating to national security and protection of third-party information (Articles 72 and 73 of the Rome Statute). He called upon civil society and the OAS to reach agreements to facilitate said assistance. Internally, Dr.Bertoni underlined the work done by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights on access to public information and said that it could serve as a guideline for states when they need to address the issue of assistance.
· Liliana López Ortiz, Deputy Director of International Law of the Secretariat of Foreign Affairs of Mexico described Mexico’s experience with drawing up the law that will permit cooperation with the International Criminal Court, from the perspective of the process involved in preparing the legislative reform and its implementation by the Executive. As regards cooperation, she urged states to designate a focal point.
Following the presentations, there was an exchange of views among and between the delegations of the member states and the panelists, which highlighted the following:
o Attention was drawn to Mercosur’s efforts to strengthen the International Criminal Court.
o As regards the possibility of extending the list of crimes contained in the Rome Statute to cover terrorism, drug trafficking, and corruption, it was pointed out that these are concepts that may have differing connotations and be contained in the Statute itself, as well as possibly being topics for other forums. However, participants were told that the crime of aggression had been analyzed with a view to possibly including it.
o The delegation of Argentina and that of Peru each described the status of legislation in their respective countries with regard to compliance with the Statute. In the case of Argentina, the law establishes a system for cooperating with the International Criminal Court. Participants were told that the Executive Branch had set up a direct diplomatic channel, while the Judiciary is addressing the subject of witnesses. Peru described the efforts made to adapt the criminal code to make it more compatible with the Rome Statute. It also mentioned the Code of Criminal Procedure and the establishment of procedures involving novel forms of cooperation and surrender. For its part, the delegation of Canada announced that it had already implemented the Rome Statute domestically and that, at the international level, it had financed activities in Latin America to promote the International Criminal Court. Finally, the delegation of Guatemala mentioned the negotiations that had taken place with a view to ratification of the Rome Statute.
o The discussion highlighted the efforts made by the states to overcome technical difficulties, such as life imprisonment and extradition of nationals, and to adapt domestic laws, particularly via amendments to the Constitution and modification of existing laws.
o A discussion arose regarding the compatibility of the obligation to cooperate with temporary suspension of a case by the Security Council. In that context, it was made clear that suspension should be exercised subject to certain constraints, such as concern for international peace and security.
o It was generally recommended that the best way to achieve the passing of laws implementing the Rome Statute was to forge a broad political and social consensus.
The second panel began at 3:00 p.m. and addressed the subject of “Activities of international agencies and organizations in cooperation with the International Criminal Court.” In this section, there were two panelists.
· Paulina Vega, of the Coalition for the International Criminal Court (CICC), explained the cooperation mechanisms governing the activities of the International Criminal Court and urged the states to provide for rules and procedures allowing greater participation by intergovernmental organizations, such as exchanges of experiences and of specialists, the provision of information, and monetary contributions to assist victims. She also recommended including in an upcoming General Assembly resolution consideration of the possibility of reaching a cooperation agreement between the OAS and the International Criminal Court, similar to those reached with the European Union and the United Nations, and that shortly to be signed with the African Union. She asked that the Inter-American Juridical Committee and other relevant organs take part in that work and that the Office of International Law be the OAS unit responsible for liaison with the International Criminal Court.
· Anton Camen, Advisor, International Committee of the Red Cross, explained the ICRC’s efforts to promote ratification of the Rome Statute by providing assistance to the authorities responsible for drafting laws, particularly with respect to the legal definition of war crimes. The speaker said that one of the main technical difficulties associated with the implementation of measures required by international instruments was legislators’ tendency to copy the definitions established in the Statute, without taking into account other prior commitments imposed by international instruments, such as the Geneva Conventions. In short, Dr. Camen stressed the need for clear rules in substantive criminal law.
Finally, the third panel discussed “Victims under the Rome Statute: recommendations on practical measures states could adopt,” In this case, there was only one panelist.
· David Donat-Cattin, Director, Parliamentarians for Global Action, presented the contents of the Rome Statute referring to assistance for victims and underlined the need to provide broad physical, psychological, and moral protection, including the right to privacy. Regarding reparation for victims, he said that the International Criminal Court had wide prerogatives. Nevertheless, he added that cooperation was very important for providing satisfactory reparation to those victims. He urged that states adapt their domestic legal systems to ensure high standards of victim protection and to permit the full reintegration of victims into society.
Toward the end of the afternoon session, additional time was devoted to dialogue with member states and participants. Points that arose from this discussion included the following:
o With regard to reparation, it was noted that financial compensation is just one form of compensation; what really matters is that victims feel that justice has been down. Financially, the International Criminal Court definitely needs contributions from the states, as its own resources do not suffice.
o States were urged to implement systems for disseminating information, education, and the latest developments in international humanitarian law and international human rights laws to all sectors of society, especially the military and police. Participants stressed the importance of the armed forces including the legal concepts addressed in those systems in their manual and internal procedures.
Main ideas put forward during the working meeting
To conclude, following is a summary of the principal ideas put forward during the working meeting.
· OAS member states must familiarize their parliaments with the existence of the International Criminal Court and the Rome Statute;
· The participation of civil society and of intergovernmental organizations is essential for the promotion, dissemination, and implementation of the Rome Statute;