What does ‘cooperation’ mean?

The Rome Statute provides for an obligation to cooperate fully with the ICC (Art. 86), as well as to adopt internal procedures for cooperation (Art. 88). Part 9 of the Rome Statute establishes the obligations for States Parties towards the Court. These obligations may also be extended to States not Parties based on ad-hoc agreements or resolutions adopted by the Security Council under Chapter VII of the UN Charter.

Argentina and ICC sign agreements on Interim Release and Release of Persons, reinforcing Argentina’s commitment to accountability and fair trial

The obligation to cooperate under the Rome Statute encompasses:

1. Arrest and Surrender (Art. 89 Rome Statute)
   Under the Rome Statute, trials in absentia cannot be held. Thus, to ensure the commencement and integrity of trial proceedings, States Parties must abide by their statutory obligation of complying with the requests of the Court to arrest and surrender any individual sought after.

2. Other forms of cooperation (Art. 93 Rome Statute)
   These include, among others, taking of evidence; questioning of any person being investigated or prosecuted; execution of searches and seizures; provision of records and documents, including official documents; protection of victims and witnesses; and identification, tracing and freezing or seizure of proceeds, property and assets.

Other agreements of cooperation with the ICC

Several additional agreements to the Rome Statute are necessary to expand the existing framework of cooperation with the Court:

1. Agreement on Privileges and Immunities of the Court (APIC)
   The APIC is designed to give ICC officials the protection to conduct investigations efficiently, to safeguard victims, witnesses and defence counsels, and to ensure the confidentiality and safety of the documents, materials and information handled by the ICC in the territory of its States Parties. Since the APIC is like any other international treaty, any State - not only States Parties to the Rome Statute - can join it.

2. Bilateral agreements with the ICC

   • Enforcement of Sentences

     The Rome Statute provides that, upon conclusion of the trial, sentences of imprisonment are to be served in a State designated by the Court from those that have indicated their willingness to enforce the sentences of the Court. This willingness is expressed through the signature of bilateral agreements with the Court.

   • Relocation of witnesses and victims

     Under Article 68 of the Rome Statute, the ICC must protect its witnesses, participating victims, and any other individual “at-risk” because of ICC proceedings, including relocation if necessary. For international relocations, the Court is fully dependent on States Parties upholding their agreements to cooperate. The implementation of these agreements comes at no cost to the State assisting the Court.

   • Interim and Final Release

     Article 60 of the Rome Statute grants the accused the right to request an interim release. However, this is not considered an issue for which states’ cooperation is mandatory, and many national implementing legislations do not have any specific provisions for how to address such requests by the Court. Regarding final release or acquittal cases, the Court has finalized a draft framework agreement that is open for discussion and encourages states to contact the Registry if they are interested.

Why is cooperation Important?

The ICC does not have its own police or law enforcement structures at its disposal. Thus, in situations where the ICC has jurisdiction, the Court relies entirely on national law enforcement systems to give effect to its orders, including requests for arrest and surrender of persons charged with genocide, crimes against humanity, war crimes, or the crime of aggression.

Without State cooperation, procedures of the Court get delayed - thereby reducing the Court’s efficiency and increasing its costs - or cannot be fulfilled - thereby putting at risk the mandate of the Court and the entire Rome Statute system.

Non-cooperation

Under Art. 112 (f) of the Rome Statute, one of the prerogatives of the Assembly of States Parties (ASP) is to consider 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 Security Council is necessary once the judicial organs of the Court have found that a State has failed to fulfil its obligations of cooperation.

In December 2011, the ASP adopted specific procedures to address instances on non-cooperation detailed in Annex to Resolution 5. This mechanism allows for numerous measures of a diplomatic character to be undertaken mainly by the President of the ASP in consultation with the Bureau.

Achievements

PGA has been engaged since 2005 in consultations to support the creation of a subsidiary body that can deal with instances of cooperation, as well as with reaching consensus on the legal measures that could be imposed to effectively prevent and address failures to cooperation.

Additionally, PGA is one of the few organizations in the world actively working on promoting cooperation of States with the ICC. Through technical and political assistance, the Campaign for the Rome Statute of the ICC has produced tangible results in approximately 10 countries, including:

1. Argentina – On 28 February 2018, Argentina signed its third and fourth cooperation agreements with the International Criminal Court (ICC), on interim release and the release of persons. On 20 April 2017, PGA’s Argentina national group co-sponsored a Seminar on the fight against impunity for complex crimes, which took place at the Ministry of Foreign Affairs. During this event, officials not only announced Argentina's deposit of the instrument of ratification of the Kampala Amendments to the Rome Statute, but also the conclusion of a cooperation agreement on enforcement of sentences. The first result was achieved on 21 November 2016, when the Ambassador of Argentina to the Kingdom of The Netherlands, H.E. Mr. Horacio Salvador and the ICC Registrar, Mr. Herman von Hebel signed a cooperation agreement on the protection of witnesses. Argentina is the only State that has concluded all four cooperation agreements with the ICC. The achievement represents the culmination of concerted and sustained efforts between the Argentina PGA National Group, the Argentinian Ministries of Foreign Affairs, Justice and Human Rights, as well as the International Criminal Court (ICC) and Civil Society Organizations.

2. Chile – Since 2018, Chilean lawmakers have been actively calling on their Government to send the Draft Law on Cooperation with the International Criminal Court to Congress. After much advocacy and technical consultations, on 12 May 2020 the Government sent the draft cooperation bill to the House of Deputies of Chile through communication No 13505-10.

3. Costa Rica – On 4 April 2018, the Legislative Assembly of Costa Rica unanimously approved the draft law number 19.665 on Cooperation and Relations with the International Criminal Court (ICC), which is entirely based on PGA’s Reference law on cooperation with the ICC that creates legislative frameworks for direct cooperation among judicial and prosecutorial organs of the State and the ICC, as well as frameworks to directly give effect to all voluntary cooperation schemes promoted by the ICC.

4. Dominican Republic – On 12 July 2018, the Plenary of the Chamber of Deputies of the approved in second reading the Draft Bill on Cooperation and Relations with the ICC, based on PGA’s Reference law on cooperation with the ICC.

5. Ecuador – On 24 September 2019, the PGA Secretariat formally submitted to the Chair of the PGA national group, a tailored draft cooperation law with the ICC, including provisions on financial investigations and enhanced procedures for the nomination of judges to the ICC. The draft cooperation law based on the PGA Reference Law was introduced to the National Assembly by the Chairwoman of the PGA National Group in Ecuador on 31 October 2019 – No 397-SB-AN-2017-2021. The office of the presidency acknowledged receipt of the draft law and has initiated the legislative process. The draft cooperation legislation must be sent to the Foreign Affairs committee. Then, there will be two plenary debates.

6. El Salvador – Thanks to the leadership of a PGA member, former Chair of the Foreign Affairs Committee, the cooperation bill is pending before the Committee. PGA provided legal technical assistance upon request of its member in El Salvador. In 2018, PGA’s Board Member in El Salvador started campaigning to become the Vice-President of the Republic, which halted the sustained advocacy PGA had had to date. However, the Secretary of the Legislative Assembly and PGA member assured the Secretariat, when attending the Honduras sub-regional Seminar in October 2018 that he would reinvigorate the ICC implementation dossier. Presidential elections took place on 3 February 2019, after which PGA has been engaging its membership in a difficult institutional context to foster political will for the implementation bill that includes cooperation provisions with the ICC.

7. Honduras – On 13 March 2020, the PGA Secretariat shared a tailored draft cooperation law based on its Reference Law with its Board member from Honduras. The draft will be introduced shortly to the National Congress, after consultation with parliamentary colleagues from pertinent Committees.

PGA was instrumental to the adoption by the Commonwealth of a Revised Model Law to Implement the Rome Statute. A prominent example of PGA’s technical assistance to Commonwealth countries is the following one:

• Kiribati: in March 2011, during the First PGA Asia-Pacific Conference on the ICC and Rule of Law organized in Kuala Lumpur organized in cooperation with the Malaysian Parliament, the President of the Parliament of Kiribati stated that the government was still in the process of studying the ICC and assessing its own capacity to be a State party. A promising meeting with the Attorney General (AG), Titabu Tabane took place in July 2011 at the Commonwealth Law Ministers meeting in Sydney, at which the Revised Commonwealth Model Law to Implement the Rome Statute of the ICC was adopted (PGA contributed to its drafting).
  
  In March 2014, PGA delivered to the Government of Kiribati a complete package for technical assistance on accession to the amended Rome Statute, along with the revised Commonwealth Model Law to Implement the Rome Statute in the domestic legal framework. The memorandum prepared by PGA included: draft Cabinet papers on accession containing basic information on the Rome Statute of the ICC; a detailed overview of the content of the Statute; and Recommendations for Action to proceed with the accession to the Statute by the Government of Kiribati (including a draft Rome Statute accession notification letter).
  
  In May 2019, a delegation of Government representatives of Kiribati, including the then Minister of Justice, Hon. Natan Teewe Brechtefeld, attended the Pacific Islands Roundtable on the ratification and implementation of the Rome Statute of the International Criminal Court, hosted by the Government of Vanuatu and organised by PGA with the support of the Republic of Korea and the ICC. During bilateral meetings following the Roundtable, Hon. Natan Teewe confirmed Kiribati’s interest in acceding to the Rome Statute. Two weeks after the Roundtable, the Cabinet of Kiribati approved the decision to accede to the Rome Statute. This milestone was critical and the result of determined advocacy by Parliamentarians.