On 12 and 13 February 2015, Parliamentarians for Global Action (PGA) together with the Government and Parliament of Ecuador, organized, a Technical Round-Table on the full implementation of the Rome Statute and the ratification of the Kampala Amendments by Ecuador. This parliamentary session was followed by an Academic Conference on the same topics.
The Parliamentary Technical Round-Table took place in the framework of a Justice Committee official session aimed at analysing the revised Organic Criminal Code as well as the Cooperation Bill drafted with PGA´s technical assistance. The Round-Table provided a platform for discussion and action concerning the role of Parliamentarians, the Government and society as a whole in order to create the necessary conditions for effective national investigations and prosecutions of international crimes, as well as full cooperation with the ICC, specifically through comprehensive and effective implementing legislation of the Rome Statute encompassing crimes, general principles of law and internal cooperation mechanisms. Furthermore, the ratification and implementation of the Kampala Review Conference amendments to the Rome Statute concerning the use of certain prohibited weapons as war crimes in non-international armed conflicts and the definition and jurisdictional regime for the crime of aggression, were thoroughly discussed.
The President of the National Assembly of Ecuador, Ms. Gabriela Rivadeneira Burbano, MP, together with the Chair of the Committee on Justice and State Structure, Mauro Andino and leading PGA member Ms. Marisol Peñafiel, MP, received the delegation of international experts composed by PGA Secretary General Dr. David Donat Cattin, ICC Registry Advisor Mr. Osvaldo Zavala Giler, ICRC Legal Advisor Ms. Mariana Chacón Lozano, CICC Regional Coordinator for the Americas Ms. Michelle Reyes Milk and PGA Program Officer Ms. Romina Morello. In this meeting, the importance and relevance of the full national implementation of the Rome Statute to advance the goal of putting an end to impunity was highlighted and agreed by all the participants: Parliamentarians committed to support all the efforts to accomplish that goal.
The Deputy Speaker of the National Assembly for Ecuador, Ms. Rosana Alvarado, MP, opened the workshop highlighting the challenges of the Rome Statute system and calling on all Parliamentarians to take action and legislative measures to contribute to the effectiveness of the fight against impunity.
MP. Mauro Andino, Chair of the Justice Committee, spoke about the efforts that Ecuador has undertaken in order to incorporate the Rome Statute into the national legislation, namely the Organic Criminal Code, starting by the inclusion of two serious criminal offenses into the penal code in 2009: genocide and ethnocide. Additionally, in 2013-14, following the participation of leading MPs to the PGA Round-Tables held in Montevideo in 2013 and 2014, the Justice Committee embarked on broadening the scope of the Penal Code to include crimes under international law, including crimes against humanity to begin with, and other serious violations of human rights such as extermination, enslavement, forced displacement, or extrajudicial executions. Mr. Mauro Andino referred to the principle of complementarity as being at the heart of the Rome Statute system, under which the burden of prosecution primarily lies on the national prosecutorial and judicial authorities, and only secondarily on the International Criminal Court. Mr. Mauro Andino stressed that this was reflected in the reformed Organic Criminal Code, which places the primary responsibility on the Ecuadorian Courts to prosecute any crimes committed on the basis of the jurisdictional principle of universal jurisdiction and in line with the customary international law principle of non-applicability of Statutes of Limitation.
Furthermore, Ms. Helena Yanez, the Director General for Legal Affairs of the Ecuadorian Ministry of Foreign Affairs (MFA), on behalf of Foreign Minister Mr. Ricardo Patiño, presented a constructive critical assessment of the ICC practice in respect of the last few years, especially regarding the at times controversial relationship of the Court with the UN Security Council. The presentation of the Governmental representative revealed that the Executive is still considering whether or not to endorse the process of ratification of the Kampala Amendments on the crime of aggression, in light of the exemption clause for Non States Parties nationals contained in the aforementioned Amendments. PGA member, Mr. Fernando Bustamante, Chair of the Foreign Affairs Committee, forcefully rebutted the doubts expressed by the MFA stating that there are two major strategies that should be pursued by Ecuador and other States to address this Kampala Amendments' shortfall: first, domestic implementation of the crime of aggression, as Ecuador already did with new Art. 88 of the February 2014 of the Organic Criminal Code criminalizing aggression without exemptions; secondly, as several other medium and small powers have done, ratifying the Amendments in order to protect as many victims of aggression as possible in all regions of the world. Mr. Bustamante, stressed that even though some big powers have not ratified the Rome Statute and will probably not ratify the Kampala Amendments any time soon, Ecuador, as a human rights defender country, has already implemented and should ratify the amendments. Indeed, at heart of victims’ concerns is the protection of their rights, rather than the size of the country using illegal force. Ecuador should be among the first states to protect victims from the violation of their rights and aggressive wars.
Following this vibrant presentation, Ms. Mariana Chacon, ICRC, addressed the important issue of war crimes as well as the Kampala Amendments. She congratulated the MPs for their excellent work on the Organic Criminal Code and highlighted possible modifications to ameliorate further the existing legal framework. Ms. Chacón also explained the importance of the Kampala Amendments to Art. 8 of the Rome Statute and suggested that Ecuador should seriously consider its ratification and full implementation in the national legislation.
In the panel on Substantive Implementation of the Rome Statute, PGA Secretary General Dr. David Donat Cattin also congratulated all the Ecuadorian Parliamentarians for the newly adopted Organic Criminal Code, which he referred to as "a fantastic example of implementation of the Rome Statute in the Latin American region" as it includes almost all war crimes, regardless of whether they are committed in an international or non-international armed conflict, and almost all acts that could constitute a crime against humanity, even including the possibility for legal entities to be sanctioned for the commission of crimes against humanity. Afterwards, Ms. Michelle Reyes, CICC, provided a detailed analysis on the crime of genocide, which is defined in the Organic Code and made the suggestion, already included in the PGA-CICC comments to the Code, to delete the qualifications of "widespread or systematic" from the definition since this would amount to a higher burden of proof for the Prosecution and as those elements are not included in the Convention Against Genocide nor the Rome Statute. Ms. Reyes warmly noted the decision of the Ecuadorian Legislators to add “political grounds” to the definition in order to better protect populations from the scourge of genocide.
Following these presentations, an open discussion on the substantive Implementation of the Rome Statute as well as on the ratification of the Kampala Amendments took place. Several MPs intervened from the floor asking questions regarding the exception of jurisdiction on the Crime of Aggression for non-States parties as well as on the implications of the ratification regarding “humanitarian” interventions among other very interesting and important questions.
The Registry of the ICC, represented by Mr. Osvaldo Zavala Giler, participated in the Technical Round-Table and explained the obligations of States Parties to the Rome Statute to cooperate with the ICC in order for the latter to effectively fulfil its mandate. He highlighted the importance of cooperation, giving practical examples on how cooperation takes place, such as in respect of translation issues, assistance to the Office of the Prosecutor and to the Defense in the actions that they may need to carried out in the field, freeing and seizure of assets, witness protection, enforcement of sentences. This instructive presentation was followed by the intervention of PGA member, Ms. Marisol Peñafiel, MP, who explained the main aspects of a Bill of Cooperation with the ICC. In her presentation Ms. Peñafiel made reference to the important elements presented by the Registry and encouraged her parliamentary colleagues to support the inclusion of rules to create national cooperation mechanisms to fully and effectively contribute to the ICC mandate.
The Round-Table was then closed by Dr. David Donat Cattin, who reaffirmed the commitment of PGA to promote the fight against impunity worldwide, and called upon Parliamentarians to fully implement the Rome Statute and take action on the new legal framework on cooperation with the ICC and on Kampala Amendments ratification as soon as possible.
As a result of these deliberations, MPs participating in the Seminar pledged to support and advance the inclusion of rules to set national cooperation mechanisms in the Organic Criminal Code in order to fully comply with the principle of complementarity.
At the end of the Round-Table, informal discussions where held with parliamentarians to discuss how to foster the legislative measures that where discussed in the technical round table, including the negotiation of a parliamentary resolution on the priorities highlighted in the debate.
On 13 February 2015, PGA member Ms. Peñafiel organized an academic conference on the full implementation of the Rome Statue and its effects in national legislation. Legal practitioners, professors and students as well as police personnel were present and actively engaged with the experts in the conference. The event was opened by the Dean of the Faculty of Jurisprudence, Social Sciences and Politics for the Central University of Ecuador, Dr. Patricio Sánchez Padilla, who stressed the importance of this kind of activities in order to involve society in the latest developments of national and international law. A Panel Discussion on how to “Substantively Implement the Rome Statute”, which included comments to the crimes defined and principles adopted in the Organic Criminal Code, and a presentation by Dr. David Donat Cattin who spoke about the early stages of the ICC and its importance to the fight against impunity. Ms. Michelle Reyes presented the origins and development of the definition of genocide and Ms. Mariana Chacón discussed issues of international and non-international armed conflict, victims´ protection and war crimes.
This was then followed by a general discussion with an active interaction of all the participants, in particular the police forces, who were interested in deepening their knowledge of international humanitarian law through different, very interesting, questions.
Later on, two of the main ICC principles, namely, Complementarity and Cooperation, were presented by Ms. Romina Morello, Program Officer of PGA who explained the legal bases. Ms. Morello also gave practical examples on the importance of the complementarity and cooperation for the effective functioning of the ICC. Lastly, Mr. Osvaldo Zavala Giler and Ms. Marisol Peñafiel, presented practical examples on how Ecuador could cooperate with the ICC.
