What does ‘implementation’ mean?

Implementation is the adoption of domestic legislation by a State to comply with the overall objective of putting “an end to impunity (…) for the most serious crimes of concern to the International Community as a whole” (cf. Preamble of the Rome Statute).

The scope of the implementing legislation should be as broad as possible, and should incorporate at least some of the following 11 points:

1. Definitions of international crimes that are in line with the Rome Statute
   The core crimes under international law are 1) genocide; 2) crimes against humanity; 3) war crimes and 4) the crime of aggression (labelled as “crime against the peace” in the Nuremberg Charter). Special attention needs to be taken to incorporate gender-based crimes, innovated by the Rome Statute, into domestic law.
   
   The international crimes stem from the Nuremberg Tribunal Charter and Judgement, reflected in the Nuremberg principles, reaffirmed in 1946 by the UN General Assembly as part of customary (general) international law binding all States, regardless of their membership in the Rome Statute system.
   
   When adopting a national implementing legislation, States Parties can also go beyond the Rome Statute to reflect more protective definitions that may exist under general international law or other applicable treaties. In line with the conventional or customary international law, they can define the crimes and principles of criminal responsibility more broadly than in the Rome Statute, and certain defences more narrowly.

2. General principles of customary international law applicable to these core crimes, including:
   a) The irrelevance of the lack of domestic criminalization of international crimes: international crimes can be prosecuted before a competent Tribunal even if they are not punishable offenses under the domestic law of the State in question as long as they are crimes under International Law at the time of their perpetration. The principle of legality that applies to international crimes differs from the principle of legality that applies to offenses under national law, in line with the Art. 15 of the International Covenant on Civil and Political Rights and Art. 7 of the European Convention on Human Rights.
   (b) The irrelevance of official capacity (no-immunities).
   (c) The non-applicability of statutes of limitation or “prescription of crimes”.
   (d) The non-applicability of the defence of superiors’ order due to the manifest unlawfulness of orders to commit these crimes, with extremely limited exceptions relating to certain war crimes.
   (e) The applicability of the doctrine of “command responsibility” or “responsibility of the superior”.

   The definition of the core crimes and the general principles of law are the most important components of International Criminal Law.

3. Crimes against the administration of justice that are punishable.

4. The applicability of universal jurisdiction in line with international law.
   Even if this principle is not prescribed in the Rome Statute, the Statute itself reaffirms in its Preamble “that is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. Therefore, every State must either extradite suspected-authors of these crimes to States willing and able to exercise jurisdiction or surrender them the ICC or another international tribunal or bring to justice the suspect regardless of any link of the alleged crimes with its territory or nationals. This principle, also known as “aut dedere, aut judicare”, is necessary to minimize the “impunity gap”.

5. Detailed procedures for cooperation with the ICC.

6. Protection of due process and defence rights.

7. Guarantees of victim and witness protection, with specific emphasis on women and children, in accordance with the high standard provided in Article 68 (1) of the Rome Statute.

8. Access to reparations for victims.

9. Penalties, including accessory penalties such as cessation of functions for government officials (e.g. ineligibility to public office) and maximum penalties possibly in line with those applied by the ICC.

10. Allocation of adequate budgetary and human resources to police/ law enforcement and judicial authorities to carry out effective and independent investigations, prosecutions, trials and reparations proceedings, as well as for the enforcement sentences.

11. Reinforcement of the principle of separation of powers and the independence of judges and prosecutors.

Why is implementation important?

I. In the context of the system of the Rome Statute of the ICC

The system of international jurisdiction that the Rome Statute seeks to build rests on two important premises: The principle of complementarity, according to which the primary competence and authority to initiate investigations of international crimes rests with States national jurisdictions; and the obligation of States parties to fully cooperate with the ICC.

The first condition enabling States to abide by these obligations and thus contribute to the global fight against impunity is the existence of national legislation that, at a minimum, incorporates the definition of the core crimes, general principles of law, and procedures of cooperation with the ICC.

All States parties, regardless of their legal system, will need to modify their national law to some extent to meet the requirements of the Rome Statute system. Even in “monist” States where the ratification of an international treaty is sufficient to be considered as part of the domestic law, implementation is needed. The provisions on cooperation under Part 9 of the Rome Statute are specifically not self-executing and cannot be directly applied: They require the adoption of legislative and executive measures, as well as consequent judicial practice.

II. In the context of the respective domestic legal framework

Additionally, domestic implementation of the Rome Statute carries important benefits for the States themselves, such as:

1. Strengthening their own criminal justice systems so they can prosecute the ICC crimes themselves, which in turn:

   • Ensures that a State can put an end to impunity for the most serious crimes, and prevent its territories from becoming a “safe haven” for alleged perpetrators of atrocity crimes
   • Strengthens victims’ rights and ensures that fair trials are conducted at the national level, not only for international crimes but also for all crimes prosecuted by the relevant State
   • Facilitates the work of the judges who primarily or exclusively apply national law
   • Provides judicial certainty and protection to individuals regarding which the law is applicable and avoids the need to adopt laws ex post facto that may conflict with restrictive interpretations of the principle of legality (nullum crimen, nulla poena sine lege).

2. Preventing the commission of international crimes due to the deterrent effect that criminalizing these conducts has.

3. Protecting the primacy of the national jurisdiction over international crimes.

4. Depoliticization of the domestic prosecutions of international crimes.

5. Depoliticization of the cooperation of States with the ICC, ensuring direct communication of the national judicial and prosecutorial bodies with their counterparts at the ICC, thus safeguarding their independence from the interference of the executive or legislative power.

6. Strengthening the Rule of Law.

Achievements

PGA is one of the few organizations in the world actively working on promoting the development of implementing legislation of the Rome Statute. Through technical and political assistance, the Campaign for Rome Statute of the ICC has produced tangible results in over 37 countries with enacted legislation:

Complementarity (26)

Cooperation (24)

Additionally, PGA has been instrumental to the process that brought about the revision of the Commonwealth Model Law to Implement the Rome Statute in 2010, which was adopted unanimously by Commonwealth Ministers of Law and Attorney Generals in Sydney in 2011 (cf. https://www.ejiltalk.org/commonwealth-revises-its-model-law-on-the-international-criminal-court/). The revised Model Law reflects almost all the proposals of revisions and integrations drafted by the PGA legal team.

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