San Salvador/ New York/ The Hague, 13 April 2016
On 11 April 2016 PGA assisted the Foreign Affairs’ Committee of the Legislative Assembly of El Salvador in the realization of a hearing on domestic implementation of the Rome Statute of the International Criminal Court (ICC), held in the Legislative Assembly of El Salvador. The Chair of the Foreign Affairs Committee, Dip. Karina Sosa, invited experts and parliamentary colleagues in the Committee to have an informed discussion on the system of cooperation with the ICC. The PGA delegation consisted of Dip. Ronny Monge, PGA Board Member from Costa Rica and Dr. David Donat Cattin, Secretary General. ICC officials from the Registry and the Office of the Prosecutor (OTP) participated via video-link in this consultation.
The presentations aimed at explaining the legislative implications of the obligation of States to cooperate with the Court and generating political will for the fight against impunity through the implementation of the Rome Statute. At the same time, the hearing served as a follow-up of the commitments to promote the full and effective implementation of the Rome Statute made by the parliamentarians in the visit to the ICC last year and the Special Session on Ratification and Implementation of the Rome Statute held in the Parliament of Costa Rica, which were instrumental to the historic parliamentary vote of 26 November 2015 through which El Salvador was allowed to become the 124th State Party to the Rome Statute of the ICC.
At the outset of the hearing, the OTP representative explained the importance of the cooperation of the States with the ICC for the effective fulfilment of the mandate of the OTP. During her speech, she identified factors that contribute to effective and prompt cooperation between the State parties and the ICC. The ICC Registry representative described the obligation and necessity to set a cooperation procedures in national legislation to allow for effective cooperation with the ICC, in light of the fact that the ICC does not own executive powers and depends entirely on the cooperation that States must provide at all stages of the proceedings.
Afterwards, Dip. Ronny Monge presented the relevant parts of the Costa Rica Bill on Cooperation with the ICC, which is based on the PGA Reference Bill on Cooperation with the ICC for Latin-American Countries. He strongly supported a dual regime of direct communication and cooperation between the ICC, on one hand, and the Ministry of Foreign Affairs and the Supreme Court, on the other hand, depending on the nature of the cooperation required by the Court (i.e. direct cooperation between OTP and national Prosecutor General would expedite cooperation in the seizing of evidence in the national territory).
Finally, Dr. David Donat Cattin, PGA Secretary General, provided an overview of practical problems faced by Parliaments in implementing the provisions in their domestic legislation. In this regard, he made recommendations based on the PGA experience of best practices concerning how to implement provisions of the Rome Statute so that the effective cooperation with the Court is guaranteed.
During the sessions on Question and Answers, the exchange between the PGA delegation, the ICC representatives and the Salvadorian parliamentarians enabled to address lingering political and legal concerns as well as ambiguities relating to the interpretation of the Rome Statute provisions.
After the hearing, the PGA delegation had the opportunity to hold bilateral meetings with political parties GANA and FMLN, who reaffirmed their commitment to achieve the full implementation of the Rome Statute in El Salvador.
Selected Statements:
Dip. Karina Sosa (El Salvador), Chair of the Foreign Affairs Committee:
I think the meeting with experts from the Court and PGA was very productive and provided us with the opportunity to obtain first-hand information on issues that the Court handles on a daily basis in relation to the cooperation with States. It was also very important that we were honored by the presence of our colleague from Costa Rica who shared with us their draft legislation while explaining the challenges that parliamentarians from a neighboring country is facing in the process of implementation of the Rome Statute. We are committed to continue working on this project and obtain the approval of the Law on Cooperation with the International Criminal Court in compliance with the obligations assumed by ratifying the Rome Statute.
Dip. Rony Monge (Costa Rica), PGA`s Board Member:
While in most cases is the Ministry of Foreign Affairs which is the entity that received the communications from international organizations, given that the International Criminal Court is a judicial institution of a sui generis character, which forms a part of the national legal systems of States Parties to the Rome Statute, we fundamentally believe that the Prosecutor General or the judiciary should receive direct cooperation requests from the ICC when they relate to a prosecutorial or criminal justice matter, so to expedite the cooperation between the State and the Court. In order to prevent that in certain cases cooperation requests are lost or delayed in the bureaucracy of institutions, it is fundamental that the law on cooperation allows for a dual communication so that both Powers have knowledge of the existence of the request.
David Donat Cattin, PGA`s Secretary General:
The absence of a solid, expeditious and consistent cooperation in the judicial process affects the effectiveness of the Court, having a negative impact on its ability to fulfill its mandate.
Inevitably, this can lead to a lost opportunity for justice for the victims, their families and communities, as well as diminish the deterrent effect of the Court, given that the Rome Statute does not provide for the possibility of holding trials in absentia. Therefore, to ensure the integrity and effectiveness of the judicial proceedings, States parties must respect their legal obligation to comply with the requests of the Court to arrest and surrender any person against whom the warrant is issued.
Office of the Prosecutor of the International Criminal Court:
The cooperation is the key principle of the system created by the Rome Statute. This system is composed of two pillars: ICC as a judicial pillar, and on the other hand, State parties as a pillar of execution. Therefore, in order to function effectively, the ICC depends on the enforcement powers of the States parties to execute requests for cooperation issued by organs of the ICC on the basis of the Rome Statute. Without an effective and prompt cooperation, the ICC Prosecutor cannot interview witnesses, or collect evidence nor present a solid case; without this cooperation, the cases remain pending for years, while victims are demanding for justice because the suspects are not detained and surrendered to the Court in compliance with an arrest order issue by the judges. In brief, without the cooperation of the State parties of the ICC, the ICC is only a theory; an empty building. In the same vein, the victory of the ICC is a joint venture: the Court providing a credible, efficient, independent and meaningful justice in the courtrooms, and the States acting as an executive arm of the Rome Statute system.
Registry of the International Criminal Court
An essential aspect of the implementation of the Rome Statute in domestic legislation is cooperation with the Court. The ICC does not dispose of appropriate enforcement powers and depends entirely on the cooperation of States at all stages of the proceedings. It is the task and interest of all States that such cooperation is effective and efficient, in order to avoid costly delays, or in the worst case, that lack of access to evidence or witnesses prevent the Court from establishing the truth, investigating and prosecuting those responsible for heinous crimes and providing justice to the victims. The adoption of domestic legislation adapted by implementing the Rome Statute or the establishment of clear procedures for cooperation is an obligation of the State party under Article 88 of the Rome Statute. This is also the best means for rendering the cooperation effective and adapted to the legal system within which it falls.
About PGA
Parliamentarians for Global Action (PGA) is the largest transnational network of members of parliament from all regions of the world that, in their personal capacity, support the effective functioning of the ICC and national courts to end impunity for crimes of international law. The PGA network is assisted by a Secretariat to facilitate cooperation between member-parliamentarians with the view of realizing the vision of the Organization, namely “to contribute to the creation of a Rules-Based International Order for a more equitable, safe, and democratic world”. The Secretariat also provides technical assistance, and policy and legal advice to members.
PGA members have contributed to 77 over 124 ratifications or accessions to the Rome Statute as of today. PGA is a member of the Steering Committee of the Coalition for the International Criminal Court (CICC).