What do Integrity and Independence mean?
Integrity
Protecting the integrity of the Rome Statute system refers to upholding all the norms and principles in it, including the general principle of criminal law of irrelevance of official capacity as enshrined in Art. 27. As it stands today, Article 27 (2) of the Rome Statute expressly provides that immunity, whether under national or international law, does not bar the ICC from exercising its jurisdiction.
This Article reaffirms an international law principle already contained in the Nuremberg Charter and applied in 1945-46 by the Nuremberg Tribunal, namely that the official capacity does not bar the prosecution of the most serious crimes under international law. This international law principle prevents Heads of State or Government, MPs or officials of any State to be protected by the “act of State” doctrine when they are alleged perpetrators of genocide, crimes against humanity, war crimes and the crime of aggression.
The principle of irrelevance of official capacity has been consistently incorporated into all relevant Statutes establishing competent international criminal jurisdictions and no State can be defined as a persistent objector to this norm. Therefore, Article 27 reflects customary international law since 1945. This prohibition of immunity for genocide, crimes against humanity, war crimes and the crime of aggression finds a corollary in the customary law principle “aut dedere, aut judicare”, according to which all States are bound to investigate and prosecute or to extradite suspects of international crimes irrespective of their nationality or the place where the crime was committed when these individuals are present in their territory.
Independence
Protecting the independence of the ICC and national judicial authorities refers to ensuring that there is no interference by political or executive authorities in the autonomous exercise of judicial or prosecutorial functions by ICC or domestic Judges and Prosecutors, who are tasked with the delicate mandate to apply the Rome Statute and relevant domestic implementing legislation. Only through safeguarding effective independence of jurisdictional organs can politically motivated or frivolous prosecutions and trials be prevented.
PGA opposes any effort by States’ executive authorities to interfere with the independence of Judges and the autonomy of Prosecutors, including the ICC Prosecutor and Judges, whose decisions and determinations shall be exclusively guided by the applicable law in accordance with Article 21 of the Rome Statute. This Article provides a comprehensive system of sources of law and reaffirms the principle of “supremacy of the law” in Rome Statute system.
Why are Integrity and Independence important?
Integrity
In 2013 and 2014, the Government of Kenya proposed to amend Article 27 of the Rome Statute of the ICC to bestow sitting heads of state and senior government officials with immunity from prosecution for crimes included in the Rome Statute. In the end, the Assembly of States Parties of the ICC did not consider and adopt the proposed amendment.
Had Article 27 been amended in such a way, it would have undermined the object and purpose of the Rome Statute: The ICC would have lost its legitimacy and raison d’être since the Court was created as a tool to prosecute and try those responsible for committing the most heinous crimes. The Head of State, who is often the Commander in Chief of the Armed Forces, is in most cases the person who may bear the greatest responsibility for the commission of war crimes, genocide, crimes against humanity or the crime of aggression as “person in a position effectively to exercise control over or to direct the political or military action of a State”.
An amendment purporting to upheld immunities for sitting Heads of State and Government to avoid their investigation and prosecution for the alleged commission of international crimes, would have been a flagrant violation of the principle of equality of all before the law.
Independence
The credibility of the Rome Statute system largely depends on the independent exercise of jurisdiction before competent tribunals at the domestic level and at the international level (the ICC itself). Therefore, the independence of Judges and Prosecutors is a precondition for the credible and effective delivery of justice within the Rome Statute system.
Achievements
Integrity
On 28 August 2014 during the Parliamentary Seminar and a Technical Workshop organized by PGA together with the Chamber of Representatives of Uruguay in Montevideo, PGA launched the Parliamentary Campaign to Protect the Integrity of the Rome Statute urging Parliamentarians to request their governments to make public their positions regarding the submission made by the Government of Kenya to amend Article 27 of the Rome Statute of the International Criminal Court (ICC). As a result, many PGA members in Latin America, at the European Parliament and in other regions intervened in parliamentary debates and/or addressed questions or demarches to their Governments in order to protect the integrity of the Rome Statute system against impunity.
From 2002 to 2006, PGA members from all regions of the world called their States not to enter bilateral non-surrender agreements with the United States that would have defeated the object and purpose of the Rome Statute. In several countries that signed these bilateral agreements, PGA members ensured that no parliamentary adoption followed their conclusion, hence preventing them from entering into force.
From 2002 to 2004, PGA members called for the non-renewal of UN Security Council resolutions that were aimed at limiting the jurisdiction of the ICC in contravention with the Rome Statute, the UN Charter and customary international law: These resolutions are not in force since 2004.
PGA members have acted with relevant parliamentary entities (e.g. the Parliamentary Assembly of the Council of Europe) to reaffirm the principles and norms of the Rome Statute.
Independence
On 18 July 2018, PGA co-organized a Conference on the 20th Anniversary of the Rome Statute of the International Criminal Court (ICC). The event was an initiative of the Vice-President of the European Parliament Fabio Massimo Castaldo and was hosted by the Mayor of Rome Virginia Raggi. The Conference gathered representatives of the three branches of power of the Italian State, ICC judges, PGA members, legal experts, representatives from non-governmental organizations, members of the press, academics, and students. Participants exchanged on many topics, but one was of concern for the immediate future of the ICC: the process of judicial elections and its link to the competence of Court officials and thus, the efficiency of the institution.
Judicial independence is critical to uphold the rule of law. Judges should adjudicate matters brought to them, guided by the law and without undue influence or pressures whether political or of a different nature. This principled posture contributes to solidifying the respect and trust of the public in judicial institutions.
Considering the qualitative and quantitative outputs of the ICC judicial organs, the overall performance of the Court must be improved. One of the proposed solutions advocated by PGA is a reform of the system of the nomination and election of the judges and the prosecutor. Articles 36 to 44 of the Rome Statute on the qualifications of judges and the prosecutor in their election have not been implemented by States Parties as they have not ensured that the best candidates apply to judicial positions at the ICC. In the nomination process framework for international judicial institutions, a European Court of Human Rights judge presented a study on the productivity of the European Court after reforming its system of judicial nomination and election. This reform was much needed to professionalize and depoliticize the process and resulted in an increase in the Court’s productivity.
Similarly, although the Rome Statute system makes total independence difficult to achieve, States can take active measures to foster a transparent and merit-based nomination process.
In this respect, PGA called on States to propose a Resolution on enhanced procedures for the nomination of judicial candidates at the Assemble of States Parties (ASP) of the ICC. The Resolution included concrete measures:
States should issue a public call for applications and make them known to all relevant categories of potential candidates (e.g. Judges and criminal justice practitioners for LIST A candidates, Professors of International Law, and independent international jurists for LIST B).
States must pre-establish criteria for making a ranking-list of the applicants, and the best in the list shall be presented as the nominee to the Advisory Committee on Nominations at least 4 months in advance of the deadline of official nominations.
The Advisory Committee should study the candidacy and either (i) validate the nomination, (ii) ask additional information and an alternative nomination from the State in question, or (iii) reject the nomination (i.e. the Judge-candidate is not qualified; the Judge-candidate was not selected after a public call for applications etc.).
The State should agree that without validation by the Advisory Committee of the candidacy it has put forth, the latter cannot be presented to the ASP.
The combined adoption of all these measures by the ASP would have substantially depoliticize the election process. On 6 December 2019, the ASP adopted Resolution ICC-ASP/18/Res.4 on the review of the procedure for the nomination and election of judges. Although this resolution reinforces the role of the Advisory Committee on Nominations, it falls short of the recommendations made by PGA to ensure that States carry-out a merit-based, pre-established and transparent procedure at the national level to submit a ranking list of the best possible candidates. The list would have been transmitted to the Advisory Committee for an independent assessment. PGA submitted several measures for the consideration of States at various fora such as the New York Working Group of the ASP. Regretfully, a small group of influential States disagreed with the text and a diplomatic agreement was found on the functions of the Advisory Committee on Nominations.
The elections will take place in December of 2020 at the 19th ASP. PGA will continue promoting the Rome Statute system and supporting the endeavours of States that commit to an efficient and competent judicial process at the ICC, including through the advocacy of parliamentarians domestically.