Implementing Legislation on the Rome Statute
According to the information available to PGA, as of 4 February 2014, only 65 countries have enacted legislation containing either complementarity or cooperation provisions, or both, into their domestic law.
What Does it Mean?
The creation of a system of international jurisdiction, that the Rome Statute tries to achieve, rests on the premise that the primary competence and authority to initiate investigations of international crimes rests with States national jurisdictions.
The statute therefore recognises that States have the jurisdiction and the primary obligation to detect, investigate, prosecute and adjudicate the most serious international crimes, both under applicable international law and the Rome Statute.
This recognition is reflected in the principle of complementarity (found in the Preamble, Article 1 and Article 17 of the Rome Statute), which is the foundation of the ICC jurisdiction. Complementarity means that states have the primary obligation to investigate and prosecute those responsible for international crimes, but also that the Court will only intervene when states do not have the genuine will or the capacities to do so.
Due to the limited resources of the Court, it is essential that State fulfill this primary responsibility.
To this effect, the first and minimal condition enabling States to abide to this obligation of accountability for genocide, crimes against humanity, war crimes and crime of aggression is the existence of legislation that incorporates in their National law the crimes and general principles of law contained in the Rome Statute.
All states parties will therefore need to modify their national law in some way to meet this obligation, even monist States. Indeed, although for “monist” states, the ratification of an international treaty is sufficient to be considered as part of the domestic law, it may not be sufficient to meet the obligations of the Rome Statute and allow in practice judges to apply it in Court as it contains a number of legal obligations that require the adoption of legislative and executive measures, as well as judicial practice, to comply with the overall objective of putting “an end to impunity for the most serious crimes of concern to the International Community was a whole” (cf. Rome Statute Preamble). In addition, there is an entire set of provisions in the Rome Statute that are specifically not self-executing, and which could not in any case be of direct application: those are the provisions on cooperation, under part 9 of the Rome Statute: articles 86, which creates an obligation of result for States (to cooperate fully with the ICC) and 88, which creates an obligation of conduct for States (they have to have “available procedures” on cooperation).
As of today, only one State has interpreted the Statute as directly applicable in its domestic legal order, but only in respect of a limited sector of its domestic jurisdiction: The Democratic Republic of the Congo (DRC) in respect to its military justice system. Notwithstanding its monistic approach to international legal obligations, the DRC had to enter into an ad hoc framework (bilateral) agreement to secure effective cooperation between its authorities and the ICC.
In summary, PGA’s experience showed that there is no legal system in the world that can incorporate the Rome Statute norms and standards without adapting its internal system to the requirements of the Rome Statute system.
What are the benefits of Implementing legislation?
When States decide to implement fully and effectively the provisions of the Rome Statute in their national law, they immediately achieve two important requisites of the Rome Statute, essential to an effective system of the ICC, and thus to the global fight against impunity: The principle of Complementarity, and the Obligation to cooperate fully with the Court.
Additionally, domestic implementation of the crimes and principles of the Rome Statute carries important benefits for the States, such as:
1) An opportunity to strengthen their own criminal justice systems so they can prosecute the ICC crimes themselves
2) It has a deterrent effect: detailed legislation indicates the behaviors that are sought to be avoided introducing thus an element of predictability : those who are prone to commit international crimes will certainly think twice before committing them due to the risk they face of being prosecuted, arrested and adjudicated
3) Protection of the primacy of the national jurisdiction over crimes of genocide, crimes against humanity, war crimes and crimes of aggression, and ensures the ultimate objectives of the Rome Statute, namely, the strengthening of the rule of law and the prevention of the most serious international crimes.
4) Effective legislation can also ensure the direct communication and cooperation of national judicial and prosecutorial bodies with their counterparts at the ICC in The Hague, hence providing additional safeguards to protect the independence of organs of justice from risks of interference and manipulation by Executive or legislative organs of States.
5) It allows for explicit definitions of crimes and penalties, rather than the simple reference to international conventions, which will 1) facilitate the work of the judge who shall simply refer to national law, b) provide judicial certainty and protection to individuals regarding which law is applicable, and c) avoid the necessity of adopting laws ex post facto that distort the principle of legality. The definition thus guarantees the respect for the principles of nulla poena sine lege and nullum crimen sine lege.
6) Depoliticisation: Even if legislating on crimes may be highly political, the exercise is worth undertaking as it helps to de-politicise domestic prosecutions and insulate the judicial branches from undue influence, thus, promoting the equal application of the law and the separation of powers. National implementing legislation is also an essential tool to depoliticise cooperation of States with the Court, given that effective legislation can ensure the direct communication and cooperation of national judicial and prosecutorial bodies with their counterparts at the ICC in The Hague, hence providing additional safeguards to protect the independence of organs of justice from risks of interference and manipulation by Executive or legislative organs of States.
7) It reinforces the entire judicial system, notably strengthening victims’ rights and by ensuring that fair trials are conducted at the national law, not only for international crimes but also for all crimes prosecuted by the relevant State.
The Scope of Implementing Legislation:
The scope of the legislation should be as broad as possible and should incorporate at least some of the following points:
- Definitions of crimes that are in line with the Rome Statute: the core crimes under international law stem from the Nuremberg Tribunal Statute and Judgement, as well as the Nuremberg principles, reaffirmed in 1946 by the UN General Assembly as part of customary (general) international law binding all States, regardless of their membership in the Rome Statute system. The core crimes under international law are: 1) crimes against humanity, 2) genocide (which was subsumed in the category of crimes against humanity in Nuremberg), 3) war crimes and 4) the crime of aggression (labelled as “crime against the peace” in the Nuremberg Charter). In addition, when adopting a national implementing legislation, States parties can go beyond the Rome Statute to reflect more protective definitions that may exist under general international law or other applicable treaties, notably by defining the crimes and principles of criminal responsibility more broadly than in the Rome Statute and certain defences more narrowly. Furthermore, special attention needs to be taken to incorporate gender-based crimes, innovated by the Rome Statute, into domestic law.
- Incorporation of the general principles of customary international law applicable to these core crimes under international law, which have a different legal regime from other international and/or transnational crimes: a) the irrelevance of domestic criminalization for their prosecution before a competent Tribunal (hence, the principle of legality that applies to these core international crimes differs from the principle of legality that applies to other crimes or offenses), (b) the irrelevance of official capacity (no-immunities), (c) the non-applicability of statutes of limitation or “prescription of crimes”, (d) the non applicability of the defence of superiors’ order due to the manifest unlawfulness of orders to commit these crimes, with extremely limited exceptions relating to certain war crimes; (e) the applicability of the doctrine of “command responsibility”. These general principles of law and the definition of the core crimes are the most important components of International Criminal Law, which is the area of International Law that had the most rapid development and consolidation in the last 25 years, since the fall of the Berlin Wall. Nevertheless, the internationalization of justice and the Rule of Law to secure prevention of these atrocity-crimes may not be compared with the phenomenon of globalization that has marked the global economy in the fields of financial transactions, trade and communication. Hence, the domestic implementation of International Criminal Law in general and the Rome Statute in particular are absolutely necessary steps towards the realization of the overall objective of fighting impunity.
- Incorporation of crimes against the administration of justice that are punishable
- The bases for the exercise of jurisdiction are sufficiently broad and effective to minimize the “impunity gap”, where possible including the application of the jurisdictional criteria of universal jurisdiction (in line with international law, even if not included in the Rome Statute)
- Detailed procedures for cooperation with the Court
- Protection of due process and defence rights
- Guarantee of victim and witness protection, with specific emphasis on women and children, in accordance with the high standard provided in article 68, paragraph 1 of the Statute
- National reparations for victims
- Penalties, including accessory penalties such as cessation of functions for government officials (e.g. ineligibility to public office), with maximum penalties possibly in line with those applicable by the ICC for individuals allegedly bearing the greatest responsibility for the most serious conduct
- Adequate budgetary, infra-structural and human-resources should be allocated to police/law enforcement and judicial authorities for the carrying out of effective and independent investigations, prosecutions, trials and reparations-proceedings, as well as for the enforcement of detention-sentences
- The Legislation and policies should aim at the reinforcement of the separation of powers and the independence of judges and prosecutors
Status of Implementation of the Rome Statute Worldwide:
Today, we are concerned that 12 years after the entry into force of the Rome Statute, many states parties to the Rome Statute have not yet adopted legislations implementing the provisions of the Rome Statute allowing them to fulfill the obligations contained in the Rome Statute, through which States Parties have agreed to cooperate fully with the Court (art. 86, Rome Statute) and to exercise their primary domestic jurisdiction to fight impunity. Moreover, many of those legislations implementing the Rome Statute are incomplete or flawed.
According to the information available to PGA, as of 4 February 2014, only 65 countries have enacted legislation containing either complementarity or cooperation provisions, or both, into their domestic law.
Moreover, since the adoption in 2010 of the first amendments to the Rome Statute that incorporate the crime of aggression in new Article 8 bis, and the use of certain weapons in armed conflict not of an international character as war crimes in Article 8, only 4 states parties of 13 states which have ratified the Kampala amendments on the crime of aggression, have incorporated the definition of the crime of aggression in their criminal codes (Luxembourg, Slovenia, Croatia and Czech Republic).
PGA members are to be credited for their activism in consolidating such legislation in at least 25 of those countries; yet it is necessary that all nations, and in particular each of the 123 States parties to the Rome Statute are capable of fulfilling their obligation to exercise domestic jurisdiction over the most serious crimes under international law so as to truly and fully create an “ICC system” founded on domestic jurisdiction.
What Can Parliamentarians Do and the Role of PGA
As a network of more than 1,200 parliamentarians in 142 countries worldwide, who commit individually to pursue legislative initiatives in relation to the Rome Statute in their own countries, PGA benefits from the initiatives of its members, which can take different forms, such as:
- Urging their Government to prepare a draft legislation and transmit it to Parliament,
- When governments fail to transmit the relevant legislation to Parliament, initiate the drafting process themselves;
- Studying carefully proposals by government according to the PGA’s checklist for effective implementation of the Rome Statute.
- Communicating to the PGA Secretariat developments or obstacles relating to the legislation, so that the Secretariat can contact relevant experts for appropriate input; or collect the input from experts and translate it into appropriate parliamentary drafts, motions or proposals.
Many States express their need for assistance on drafting and adopting the necessary implementing legislation of the Rome Statute. PGA is one of the few organisations in the world actively working on promoting the development of implementing legislation of the Rome Statute in all ratifying States.
Given the complexity of the Statute and the often competing legislative agendas, the role of the Secretariat of PGA is to provide technical and political assistance, cooperation and peer-to-peer trans-national dialogue to promote political will and to ensure the usage of parliamentary prerogatives to achieve the implementation of the Rome Statute in order to promote domestic prosecutions and to ensure full cooperation with the ICC.
Parliamentary action within the Campaign for the Rome Statute of the ICC with concrete outputs to incorporate the Rome Statute and give effect to the principle of complementarity have brought about tangible results in over 25 States with enacted legislation.
