ICC Judge Silvia Fernandez de Gurmendi and former President of the Assembly of States Parties to the Rome Statute, Ambassador Christian Wenaweser, provided their unique legal and diplomatic expertise on the Rome Statute system.
June 24th, 2014 | The Hague/New York/San Salvador
The Legislative Assembly of El Salvador, thanks to the leadership role of PGA Member Dip. Sigfrido Reyes, Speaker of El Salvador's Parliament, with the assistance of the PGA and the essential cooperation of the ICC, organized a first and second hearings of experts on the Rome Statute and its implementation in national legislation on 23 June and 30 June respectively. These sessions were organized with the aim to reach out to different political parties in the Salvadorian Assembly and specifically in the Foreign Affairs Committee in order to promote understanding and support for the process of ratification and domestic implementation of the Rome Statute of the ICC.
The PGA/ICC delegation was received by six political party groups represented in the Legislative Assembly: Alianza Republicana Nacionalista (ARENA), Cambio Democrático (CD), Frente Farabundo Martí para la Liberación Nacional (FMLN), Partido de Concertación Nacional (PCN), Gran Alianza por la Unidad Nacional (GANA) and Partido Demócrata Cristiano (PDC).
Main features of the Rome Statute system were explained, starting with the non-retroactive and independent nature of the Court’s organs. A specific objective of the delegation was to dissipate the wrongful interpretation that some of the rules of the Rome Statute are in conflict with the Salvadorian Constitution, specifically in matters relating to life imprisonment, extradition of nationals to the Court, the prohibition of ne bis in idem and its exceptions, immunities and national sovereignty, while generating political will to support the success of the Ratification process. A mistaken interpretation of the Rome Statute that would have implied the need of a Constitutional reform before ratification of the treaty was addressed. The PGA-ICC Delegation explained that, after a thorough analysis of the Constitution of El Salvador, it was possible to conclude that there was no discrepancies between the Rome Statute norms and those of the Salvadorian Constitution, hence rendering unnecessary any amendment to the Constitution as a step towards accession to the Rome Statute.
On 23 June, the First Expert session on the Rome Statute included topics such as the jurisdiction of the ICC, the definition of crimes and the general principles of law contained in the Rome Statute. ICC Judge Silvia Fernandez de Gurmendi and Ambassador Christian Wenaweser provided the Legislative Assembly of El Salvador with their unique legal and diplomatic expertise on the Rome Statute system.
Moreover, PGA member Senator Julio Cesar Valentin (Dominican Republic) highlighted with distinguished emphasis the benefits of ratifying the Rome Statute as well as his experience regarding the parliamentary process of ratification in a “neighboring” country. After the Expert Session, Judge Fernandez met and discussed the importance of the ICC with Judges of the Supreme Court of El Salvador at a dinner offered in her honor at the Anthropology Museum of San Salvador.
On 30 June, the Second Session specifically tackled the draft legislation to implement the Rome Statute in the Salvadorian legal order, with specific reference to Cooperation and Judicial Assistance issues. In this session, the PGA delegation explained the necessity to have implementing legislation in place to give full effect to the complementarity principle and the cooperation mechanism to fulfill the obligations under Part IX of the Rome Statute. For comparative purposes, other cooperation laws in different regions of the world, such as the laws of Uruguay and Belgium, were mentioned as examples.
The ICC expert also provided an insight on the judicial process that takes place at the Court (investigation, Pre-Trial, Trial, Appeals and sentencing phases), highlighting the importance of States cooperation in each one of those procedural stages to make the Court work possible and effective while providing the audience with specific examples of how a State can cooperate in particular cases with the ICC.
In addition, bilateral meetings with key parliamentarians, Ministry of Foreign Affairs and Supreme Court Judges were conducted.
Also, the members of the ICC-PGA Delegation reached out to the media on a number of occasions during their short stay in El Salvador, including through the participation of Judge Fernandez in the popular morning News show Primera Entrevista and the participation of the ICC Registry and PGA Secretariat representatives in the prime-time interview program Republica SV.
Results
President of the ICC, judge Sang-Hyun Song, wrote a letter to PGA Member Dip. Sigfrido Reyes, Speaker of El Salvador's Parliament in connection to the current deliberations taking place in El Salvador regarding the Rome Statute ratification where he addresses key points that should be considered during such discussions.
Consultations with the Executive branch were taken specifically on the Bill to implement the Rome Statute in which PGA raised some concerns on specific cooperation mechanisms and the Ministry of Foreign Affairs staff could explain the rationale of the implementation law as well as the national process regarding judicial cooperation with States. (a picture of the meeting is available at: https://www.flickr.com/photos/pgaction/14418270209/in/set-72157645092858627.
Meetings with the supportive Political Parties as well as with the Ministry of Foreign Affairs staff were conducted. They dwelled on the need for a sustained common strategy to address concerns on the application of the Rome Statute and the need of not supporting the argument of a need of a constitutional amendment.
MPs from political parties that so far have not taken action on the ICC dossier considered with interest the arguments/clarifications made by the PGA delegation the Constitutional prohibitions of life imprisonment and of the extradition of Nationals. While addressing these issues, the Delegation specified that several States in which there are constitutional rules on life-imprisonment, extradition of Nationals, immunities, ne bis in idem, national sovereignty did not amend the Constitution before acceding to the Rome Statute (most Latin American countries and Spain), and that some constitutional tribunals (Colombia, Costa Rica and Ecuador) deemed the Rome Statute compatible with Constitutions.
In cooperation with the office of the International Relations of the Legislative Assembly of El Salvador, PGA contacted the MPs that raised doubts or concerns for the Rome Statute Ratification to draft a questionnaire with all the questions that they still have that can be answered in writing in a specific, technical way.
Background
One month ago, the Parliament of El Salvador received the ICC Ratification and Implementation Bills from the former president the Republic, H.E. Mauricio Funes. On 22 May 2014 both bills were formally introduced and presented to the Plenary of the Legislative Assembly and subsequently transmitted to the Foreign Affairs Committee to be considered. This Committee is integrated by Parliamentarians from almost all the political parties of El Salvador, namely, FMLN (government party); ARENA, GANA and the PCN. Some of these parliamentarians are members of PGA and a majority of them participated in PGA's previous actions carried out since 2007 to sensitize parliamentarians on the importance of Rome Statute ratification.
At the moment, both bills are under consideration at the International Relations Committee, if approved will be analyzed in Plenary, where 43 votes out 84 are needed for the bills to be adopted.
PGA's Involvement
These recent developments are, in no small measure, the result of PGA's strategic work, who after monitoring no action from the Government of El Salvador, on 2 May sent an open letter to President Funes. The Open Letter was signed by some of the most prominent Latin American PGA Members as a way to encourage the President to transmit the Ratification Bill of the Rome Statute to the Legislative Assembly during his last month in office, namely May 2014.
The letter made the specific point that El Salvador is one of the few Latin American countries that has yet to become a party to the International Criminal Court. The ratification of the Rome Statute in El Salvador is not only politically possible, it is also strongly supported by vast sectors of society as a legal guarantee of non-repetition of the crimes that they have suffered during the civil war.
PGA continues to work with the different political parties in El Salvador (FMLN, GANA, ARENA; Unidos por El Salvador and PCN) generating the political will to support the approval of the Ratification Bill as well as providing technical assistance to the MPs that have requested our comments on both initiatives presented by the President. PGA has already contacted PGA leading members from FMLN and GANA who have publicly expressed their parties support for the ratification of the Rome Statute (audio of Dip. Tenorio (GANA) and audio of Dip. Reyes (FMLN).
PGA is confident that the necessary majority to ratify the Rome Statute will be reached and El Salvador will become the 123 State Party to the Rome Statute.
The Legislative Assembly of El Salvador and PGA organize Experts Sessions on the Rome Statute to clarify issues regarding the Rome Statute ratification and national implementation: ENGLISH | ESPANOL
