PERMANENT COUNCIL OF THE OEA/Ser.G. 12 April 2005

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1 PERMANENT COUNCIL OF THE OEA/Ser.G ORGANIZATION OF AMERICAN STATES CP/CAJP-2262/05 add.3 12 April 2005 COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS Original: Spanish / English WORKING MEETING ON APPROPRIATE MEASURES THAT STATES SHOULD TAKE TO COOPERATE WITH THE INTERNATIONAL CRIMINAL COURT IN THE INVESTIGATION, PROSECUTION, AND PUNISHMENT OF THE PERPETRATORS OF WAR CRIMES, CRIMES AGAINST HUMANITY, GENOCIDE, AND CRIMES AGAINST THE ADMINISTRATION OF JUSTICE OF THE INTERNATIONAL CRIMINAL COURT Jose Gustavo Guerrero Room April 1, 2005 (10:00 a.m. - 1:00 p.m.) Washington, D.C. THE IMPORTANCE OF OAS MEMBER STATE COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT (Presentation by Ms. Paullina Vega from the Coalition for the International Criminal Court)

2 THE IMPORTANCE OF OAS MEMBER STATE COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT (Presentation by Ms. Paullina Vega from the Coalition for the International Criminal Court) The non-governmental organizations presenting this document recognize the importance of the realization of this working session in the frame of the Commission of Judicial and Political Affairs of the Organization of American States (OAS). In the same manner, we would like to take this opportunity to emphasize the value of the resolutions that, since 1999, year by year have been approved by the General Assembly of the OAS relative to the International Criminal Court (ICC). 1 In our region, of the 35 countries that constitute it, 20 of them are States Party to the ICC Statute (Rome Statute); an additional 7 became signatories before 31 December 2000 and are currently developing internal processes that will allow their ratification; while, the remaining States can still rely on the possibility of becoming part of this international instrument through adhesion, acceptance or approval of the Rome Statute (RS). The above constitutes an example of how the governments assembled in the OAS are committed in the struggle against impunity of the most serious crimes to humanity, and moreover, it is an acknowledgment by its Members that the ICC is a useful instrument in the acquisition of such an end and in the consolidation of international justice. Currently, the region is also represented in the integration of the ICC. Of the 18 judges that constitute it, 5 of them are nationals of States in our region 2, including its President and the second vice-president. In the same manner, the Prosecutor of the Court 3 and one the 5 members of the Board of Directors of the Victims Trust Fund represent our region. 4 Additionally, 10.7% of the Court s permanent staff is comprised by nationals of the States in our region, including non-party States, demonstrating that all regions of the world must be reflected in its constituency. Additionally, the role the Caribbean in the establishment of the ICC is universally recognized, having constituted itself as the key region for revitalizing discussions on the necessity of an International Criminal Court at the United Nations (UN), which finally culminated in the approval of the majority of its members in the constitutive treaty of the ICC. 5 State cooperation: essential for adequate operation of the ICC 1 GA/RES (XXIX-O/99), GA/RES (XXX-O/00), GA/RES (XXX-O/00), GA/RES (XXXI-O/01), GA/RES (XXXI-O/01), GA/RES (XXXII-O/02), GA/RES (XXXIII-O/03) and GA/RES (XXXIV-O/04) 2 BOLIVIA, Mr. Rene Blattman; BRASIL, Ms. Sylvia Steiner; CANADÁ, Mr. Philippe Kirsch; COSTA RICA, Ms. Elizabeth Odio-Benito; and TRINIDAD AND TOBAGO, Mr. Karl T. Hudson Phillips. 3 ARGENTINA, Luis Moreno Ocampo. 4 COSTA RICA, Dr. Oscar Arias, Costa Rica. 5 In the conference of plenipotentiaries of Rome in 1998 the ICC Statute was approved with 120 votes in favor out of 163 States participants.

3 2 As a result of the negotiations amongst States, the ICC is an institution complementary to national criminal jurisdictions. This characteristic makes international cooperation essential for its adequate operation. International cooperation is so important and necessary for the ICC that the Preamble of the Rome Statute recognizes the need to adopt measures at the national level and by enhancing international cooperation to ensure that the gravest crimes are effectively submitted to justice. The Statute dedicates an entire section 6 to the treatment of the frameworks for international cooperation and judicial assistance; in the same manner, the Rules of Procedure and Evidence and the norms that regulate the operation of the ICC refer to this cooperation and to the different ways that cooperation can be given to the Court. Nevertheless, in order to achieve an effective cooperation by States Parties and by international institutions and intergovernmental organizations for the work conducted by the ICC, it is important that a mutual understanding of both the mandate of the ICC and the internal functioning of the States exist. It is important that the general necessities of the ICC product of its mandate are understood, as well as the specific necessities of the organs that constitute the Court. (Chambers, Office of the Prosecutor and the Registry) It cannot be forgotten that the ICC, for States Parties, is an extension of their national jurisdiction. Therefore, it is necessary that States make reference in their legislation and national processes to the Court as an authority that will be able to legitimately solicit the cooperation in the legal, administrative and police related fields; that needs a counterpart in the national order to facilitate its work and could solicit all actions that derive from its mandate. In practice, cooperation will be requested by the ICC in the channels indicated by States. It is important that States identify the national authority that will be the direct contact for the ICC and the language in which the Court should request such cooperation. However, it is important to note that the ICC may also request necessary cooperation from international or intergovernmental institutions to investigate, judge or serve sentences. Additionally, the Court could invite States that are not States Party of RS to cooperate in its work. 7 The Statute and the norms that govern the operation of the ICC acknowledge that this cooperation should be achieved upholding international commitments and even referring to the national law of States in deciding how the cooperation will be conducted and foreseeing the possibility of holding consultations with the Court to find the best means of cooperating with the ICC. The complementary jurisdiction of the ICC and the absence of its own authority to make the solicitations of cooperation executable, make it more necessary for States to count with mechanisms that facilitate their judicial action. Although it is unlikely that the ICC will have an active intervention in our region, it is important, for reasons indicated above, that States have the capacity to answer to solicitations of cooperation made by the Court. 6 Part IX of the Rome Statute International Cooperation and Judicial Assistance articles 86 through See Article 93(10) of the Rome Statute.

4 3 The RS, the Rules and the Regulations of the ICC establish the necessary minimum for cooperation; however, in practice, other aspects on cooperation may be necessary and for it, States or international organizations could carry out agreements on cooperation, such as the UN Relationship Agreement or the agreement with the UN mission in the case of the Democratic Republic of Congo (MONUC). In addition, state cooperation with the ICC begins with the implementation of the RS into national legislations, as well as with the ratification of the Agreement on Privileges and Immunities of the Court (APIC), and furthermore is also reflected by active participation of States at the Assembly of States Parties (ASP) to the ICC. Additionally another form of cooperating with the ICC is respecting and ensuring the protection of the letter and spirit of the Rome Statute. In this sense, we civil society organizations, in our accompanying role to States, supported the creation and now the functioning of a fair, effective, and independent International Criminal Court. We have also doubled our efforts to maintain the integrity of the Rome Statute in the face of attacks to it and we call upon the international community to continue supporting the strengthening of this tool in the fight against impunity. However, definitely, the best means of cooperation that States could possibly provide to the ICC will be by ensuring that the ICC is prevented from exercising its complementary jurisdiction, through the judgment in its national jurisdictions of those responsible of the human rights violations that constitute the gravest crimes considered by humanity. Recommendations Per the stated above, we urge To the Organization of American States To continue its demonstrations of support for the ICC through its annual resolutions adopted by the General Assembly; To the Permanent Council of the OAS To include in its 2005 ICC resolution the realization of a meeting to evaluate the advances, difficulties and goals reached in terms of cooperation and implementation of the Rome Statute in the region, with the participation of civil society; To the Commission on Juridical and Political Affairs of the OAS That in its report of this working session, it recommends to the Permanent Council the realization of a meeting where different organs of the ICC participate as well as civil society to address the necessities and problems regarding international cooperation based on experiences of the ICC in its first investigations and where developments on the area of implementation that States carry out in the region can be evaluated;

5 4 To the States Members of the OAS To those States that have not yet joined the ICC, to join through ratification, adhesion, approval or acceptance of the Rome Statute; and to ratify the Agreement on Privileges and Immunities of the Court; To implement the dispositions of the Rome Statute in their national legislations, including cooperation provisions; To demonstrate support to the ICC through the defense of the letter and spirit of the Rome Statute in all the international or regional forums that they participle and to not subscribe agreements that undermine their jurisdiction; To participate actively at the Assembly of States Parties and in the working groups that have been established to address important matters of interest needed for the functioning of the ICC. Presenting Organizations: Coalition for the International Criminal Court (CICC) Human Rights First CP14231E01

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