THE INDEPENDENT EXPERT REVIEW OF THE ICC: WHAT NEXT FOR COOPERATION?
Author | Bekou, Olympia |
Position | International Criminal Court |
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INTRODUCTION
In December 2019, an Independent Expert Review (IER) was established by the Assembly of States Parties of the International Criminal Court (ICC). (4) The review process was mandated to "'identify ways to strengthen the ICC and the Rome Statute system in order to promote universal recognition of their central role in the global fight against impunity and enhance their overall functioning.'" (5) Tasked with providing concrete recommendations on "(i) Governance; (ii) Judiciary; and (iii) Preliminary examinations, investigations, and prosecutions," the final report of the IER process was released in September 2020.'' The IER comes at a time of reform for the ICC and is part of a wider review process driven by States Parties. (7) It also comes at a challenging time for the ICC; in the face of the political attacks on the Court's existence, the IER welcomed strong support for the ICC from both governmental and non-governmental actors around the globe. (8)
The adoption of the Rome Statute of the International Criminal Court (ICC) in 1998 was an historic moment for the international community. (9) It marked the establishment of an international criminal justice system with the first permanent international criminal court at its core. The Rome Statute balances preserving State sovereignty with providing the ICC the ability to perform its functions. This balance is essential as without its own police force and with limited enforcement options, the ICC is entirely reliant on the cooperation of States and (where appropriate) intergovernmental organisations in order to conduct its investigations and prosecutions. (10) Recognising the continued importance of the ICC within the current political climate and amid ongoing violations around the globe, the IER called for States Parties to "demonstrate their commitment to the institution they have founded." (11)
An area where such a commitment is important is that of cooperation, which, despite its significance, was only cursorily examined by the IER. The reality in practice is different to the Rome Statute on paper, and non-cooperation has come to shape and hinder the work of the Court. Prominent examples include indicted persons (notably, Omar al-Bashir) travelling to States Parties without being arrested, and concerns around lack of cooperation influencing the initial decision not to open an investigation into the Situation in Afghanistan. (12) There have been significant developments which impact cooperation issues. Omar al-Bashir is now in the custody of Sudanese authorities, who have met with the ICC Prosecutor to discuss prosecution options. (13) However, it is not possible to posit future scenarios with Sudan as a State Party to the Rome Statute owing to the military coup, which took place in October 2021, and has created uncertainty around the fulfilment of commitments to the Court.
On appeal, an investigation has also been opened into the Situation in Afghanistan, despite the hostile political climate from the United States of America (U.S.) under the Trump administration. (14) However, the ICC Prosecutor decided to resume investigations in Afghanistan, but limit the focus to alleged crimes carried out by the Taliban and so-called Islamic State - Khorasan Province (IS-K). (15) Whilst this announcement to deprioritise investigations into US actions in Afghanistan may improve USA-ICC relations, the decision was almost immediately met with allegations of selectivity, double standards and bias, even among those who have long supported the Court. (16)
The ICC is facing an increasing number of situations where its work is being hindered by non-cooperation from States which are not party to the Rome Statute. Issues include open investigations which involve non-State parties who are unwilling to engage with the process, and a lack of support within the UN Security Council to reinforce cooperation with the Court. (17)
This piece will therefore consider the challenges which the ICC is facing around cooperation within a changing operational context. It also acknowledges that the Court is in a period of internal reflection and will build on the findings of the Independent Expert Review of the ICC. (18) By taking a holistic approach to non-cooperation which situates the Court within its wider context, this piece will argue that the Rome Statute regime cannot by itself ensure the cooperation of States and requires building on several synergies identified by the IER and fostering their implementation.
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THE INDEPENDENT EXPERT REVIEW AND COOPERATION
With States as the primary actors expected to execute ICC cooperation requests, the Rome Statute contains a comprehensive cooperation regime. This is the longest part of the Statute and consists of seventeen provisions within Part 9: International cooperation and judicial assistance. These provisions encompass all cooperation matters including the obligation to cooperate, surrender, arrest, and collect evidence, as well as deal with a State refusal to execute cooperation requests. (19) Whilst Article 86 of the Rome Statute provides an obligation on States to 'cooperate fully' with the Court, national procedures are also permitted, as well as the ability to postpone requests. (20) If an incident of non-compliance occurs and there is a finding that a State Party has breached its obligations under the Rome Statute, then the matter may be referred to the Assembly of States Parties to the Rome Statute for the International Criminal Court (ASP), or the UN Security Council (where applicable) for consideration. (21) Whilst the cooperation regime primarily concerns States Parties, Article 87(5) also provides for the cooperation and non-compliance by States which are not party to the Rome Statute. (22) This approach provides for judicial findings by the ICC combined with a political response from the ASP or UN Security Council, utilising both legal and political tools to tackle non-cooperation.
For States Parties, failure to cooperate with the ICC amounts to breaching an obligation arising from an international treaty which gives rise to State responsibility under international law. (23) In practice, this has not helped to secure cooperation with the Court. The unique mission of the ICC is as a criminal court tasked with ending impunity for core international crimes. Thus, the unique nature of the Rome Statute means that unlike other international treaties, its termination for a non-complying State is not really an option. (24) Instead, it is in the interests of the ICC and its States Parties that non-complying States fulfil their obligations under the Rome Statute.
Concerns around cooperation with States include the need to improve inadequate responses to requests for information and to facilitate witness interviews with greater ease rather than the increasing requirements set by some States. (25) There is a fundamental need for a broad spectrum of cooperation which was acknowledged by the IER in light of the growing and changing nature of the ICC's work, with more witnesses located abroad and greater use of digital evidence (e.g. online banking, messaging, social media, email platforms). (26) In order to effectively conduct investigations and access evidence, the ICC requires cooperation with States Parties and national authorities such as armed forces and national law enforcement agencies as well as international and intergovernmental organisations, civil society, and other entities. (27) The legal frameworks and capacities that domestic agencies, private companies, and intergovernmental or international organisations (such as the UN) may have can facilitate successful investigations. (28) For example, the ability to intercept communications and records including bank, phone, and immigration records, and their presence in situation countries with associated forms of evidence such as medical and forensic records. (29) Indeed, cooperation with States is one aspect of a complex issue.
The IER's recommendations on cooperation (Recommendations 272-278) focus on domestic jurisdictions and are designed to streamline the aforementioned issues. They include recommending that the Office of the Prosecutor should continue to enter into Memoranda of Understanding with States Parties, international and intergovernmental organisations, and private companies; (30) a review of relevant domestic cooperation provisions 'for the purpose of enabling cooperation with States parties for evidence collection;' (31) joint training with ICC staff and investigators from States Parties in order to increase capacity and strengthen networks; (32) and, considering strategic secondment of national law enforcement agents. (33) The recommendations are in line with existing suggestions for States to sign and implement cooperation agreements with the ICC in light of the acknowledged need for domestic authority to act in relation to cooperation requests. (34)
Whilst implementing these recommendations may increase the willingness and ability of States to cooperate with the ICC on an individual basis, the issue of non-cooperation also requires collective action from States. When dealing with non-cooperation the ICC must reduce instances of non-cooperation, address instances when they occur, and avoid repetition in the future. (35) As the permanent international criminal court at the centre of the international criminal justice system, it is wholly appropriate to engage other actors within the international community in support of the ICC's efforts to combat non-cooperation. Investing in strengthening bilateral cooperation with States Parties such as through maintaining constructive dialogue with relevant national authorities including law enforcement and cooperation networks can enhance the execution of cooperation requests. (36)
Within the ICC, cooperation is the responsibility of the Jurisdiction, Complementarity and Cooperation Division (JCCD) within...
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