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 hearing was organized by the Chair of the Foreign Affairs Committee, Dip. Karina Sosa, to receive the testimony of experts and parliamentary colleagues in the Committee in order to have an informed discussion on the system of cooperation with the ICC. The PGA delegation consisted of Dip. Ronny Monge, Board Member from Costa Rica and Dr. David Donat Cattin, Secretary General. ICC officials from the ICC Registry and the Office of the Prosecutor (OTP) participated via video-link in this consultation.
The testimonies of PGA and ICC representatives aimed at explaining the legislative implications of the obligation of States Parties to cooperate with the ICC and at generating political will for the fight against impunity through the implementation of the Rome Statute. At the same time, the round-table 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.
The Hearing started with the presentation of the OTP external relations officer, Antonia Pereira DeSousa, who explained the importance of the cooperation of the States with the ICC for the fulfilment of the mandate of the OTP. She emphasized that cooperation is essential for the system created by the Rome Statute, which is composed of two pillars: on one hand, the ICC as a judicial pillar, and on the other hand, its Member States as a pillar of enforcement and execution. The latter includes the arrest and surrender of suspects, gathering evidence, logistical support, identification of witnesses, searching of places, protection of victims and witnesses, or identification of the whereabouts and freezing or seizure of goods and assets. Therefore, without effective and timely cooperation in these matters, the ICC Prosecutor cannot produce evidence to disclose the truth and cases remain pending for years. However, the OTP representative highlighted that States maintain full sovereignty in the establishment of the specific procedures through which they decide to comply with the obligation to cooperate with the Court.
The OTP representative identified six factors which contribute to effective and prompt cooperation: (1) the adoption of domestic legislation effectively incorporating provisions of the Rome Statute concerning cooperation: In this regard, the OTP representative acknowledged the assistance provided by the PGA in the region and in the drafting of a “reference legislation”; (2) the identification of the most appropriate means of communication at the domestic level for transmission of cooperation requests; (3) the identification of focal points and the existence of established processes for national coordination of the cooperation requests; (4) the possibilities of entering into bilateral voluntary agreements for cooperation; (5) prior consultations between the Prosecutor and the relevant State party authorities in order to determine the necessary requirements for an assistance request and (6) the possibility that the OTP cooperates with national authorities with information to prosecute those responsible for international crimes.
The next presentation was made by Osvaldo Zavala Giler from the ICC Registry who emphasized that the non-existence of a domestic legislation establishing procedures for cooperation does not justify the failure to cooperate with the ICC. Moreover, he explained that the existence of operative legislation would facilitate the endeavors of national authorities in the fulfillment of their obligations.
He provided concrete examples of issues faced by the Registry when requesting the cooperation from States parties, namely requests for freezing of assets of the suspect, interim release or acceptance of the acquitted persons, etc. In particular, he highlighted the necessity for the existence of a proper structure and mechanisms in a country receiving the request in order to process such request promptly and dispatch it to the relevant domestic body. Delays in the process could jeopardize successful chances of freezing assets in time. Finally, he underscored that the existence of national legislation will allow legal certainty, objectivity and expeditiousness of procedures and, at the same time, would contribute to depoliticize matters that could become highly controversial.
After the ICC officials’ presentations, the MPs posed two questions. One of them related to the examples of successes and failures in the States` fulfilment of the request for cooperation and the other concerned consequences of non-cooperation. ICC representatives responded providing the example of the arrest of Jean-Pierre Bemba by Belgium as a demonstration of success and the recent example of South Africa`s failure to arrest Al-Bashir as an example of a request for cooperation that was not fulfilled. They explained the proceedings at the Court relating to non-cooperation, based on consultations with the State in question, as well the possibility for the Court to refer the failure of cooperation to the Assembly of State Parties and the UN Security Council in the cases when the situation under investigation was referred by this UN body.
Afterwards, Dip. Ronny Monge presented the Costa Rica Bill on Cooperation with the ICC, based on the PGA reference bill on Cooperation for Latin-American countries. He focused on the innovative parts of the bill, which concern:
(1) enlisting the domestic authorities responsible for receiving the requests: In this regard, he strongly supported the dual direct communication between the ICC on one hand and the Ministry of Foreign Affairs and other national authorities such as the Supreme Court, receiving the requests at the same time, on the other hand. He explained that the requests are in majority received by the Ministry of Foreign Affairs, which serves as a liaising body. Additionally, the Draft Law would empower also the highest domestic judicial body (Supreme Court) to review the legality of actions taken by the national authorities relating to the ICC request for cooperation;
(2) voluntary cooperation: These consist of chapters in the cooperation bill that refer to enforcement of sentences of the ICC within the territory of the State, proceedings in relation to freezing of assets and goods, participation of witnesses and victims in proceedings, assistance and relocation of victims and witnesses and interim release;
(3) principle of ‘positive’ complementarity, in particular, requests for cooperation emanated from the Ministry of Justice and other judicial organs addressed to the ICC in relation to domestic criminal proceedings.
He highlighted the necessity of domestic implementing legislation for the effective cooperation mechanism between the States and the ICC. His presentation also contributed to clarifying several legal issues, as for instance the distinction between the extradition in a traditional inter-State relations and surrender under the Rome Statute.
The following presentation made by Dr. David Donat Cattin, PGA Secretary General, explained the difference between the vertical cooperation with other Ad-Hoc International tribunals created by the UN and horizontal cooperation state-state. He highlighted the vertical nature of the obligation to cooperate with the ICC, which does not allow for grounds for refusal to cooperate. On the other hand, he emphasized that the Court is not based on supra-national model of cooperation, therefore, to fulfil its mandate, it relies entirely on the proper domestic implementing legislation in order to have its requests executed. Therefore the cooperation system of the ICC with the States should include elements of both, vertical and horizontal cooperation, and such elements should be enshrined in the cooperation legislation of all the States Parties to the Rome Statute.
He also presented recommendations based on the PGA experience of the best practices on how to implement provisions of the Rome Statute so that the effective cooperation with the ICC is guaranteed. These related to the adoption of all relevant provisions enabling full and effective execution of all forms of requests for cooperation as foreseen in the Rome Statute, but also touched more specifically upon the protection of accused, victims, witnesses and their families; execution of orders to appear before the Court for witnesses; requests for freezing of assets of the accused; designation of focal points and provisions permitting enforcement of sentences or re-localization of the witnesses; capacity for the Court to sit in the territory of a State Party and exercise functions “as if” it was a competent domestic jurisdiction.
Following these presentations, the MPs posed several questions. The first question addressed the issue of immunities, in particular, whether the implementation of the Rome Statute implied removing the immunities from the domestic legal system. The MPs were reassured that the removal of immunities may follow the same path already provided by the Salvadoran legal order for crimes of a lesser gravity that are already envisaged under the existing law: Such special procedures for the removal of the immunity of the Head of States may, a fortiori, apply to international crimes that may be prosecuted by the ICC or before national courts. Another question was directed to Dip. Monge to clarify if the Costa Rica cooperation bill allowed for discretion in the fulfillment of a request for surrender from the ICC. Dip Monge affirmed that no such discretion was possible due to the fact that the States are obliged by article 86 to fully cooperate with the ICC.
Afterwards, in relation to another question concerning the maintenance of sovereignty of national prosecutors, they were explained that the autonomous powers of national prosecutors are not affected by the Rome Statute. At this occasion, the ICC OTP representative further reminded that the cooperation implied also horizontal cooperation where the national authorities are able to request the ICC Prosecutor to share information concerning situations under investigation which could be applicable in cases, where, for instance, national authorities desire to prosecute individuals that the ICC cannot prosecute.
After the Hearing, the PGA delegation held bilateral meetings with representatives of the political parties GANA and FMLN, who reaffirmed their commitment to achieve the full implementation of the Rome Statute in El Salvador.
PGA`s involvement in El Salvador
The discussion of the Bill implementing the cooperation part of the Rome Statute into domestic legislation is a direct development which follows the ratification of the Rome Statute by El Salvador in March 2016. PGA directly contributed to the ratification process by its actions within the Campaign for the Rome Statute of the ICC for Effectiveness and Universality of the Rome Statute launched in El Salvador in 2002.
The involvement of PGA in El Salvador has aimed at creating a multi-partisan network of Salvadorian Parliamentarians to promote the fight against impunity for the most serious international crimes, to support the ICC and to mobilize the parliamentarians in order to complete the steps for accession to the Rome Statute and its subsequent full implementation.
The campaign for accession to the ICC-system was given new impetus in 2009 with the election of FMLN candidate Mauricio Funes as President, who adopted a favorable stance toward the ICC. In order to take advantage of the renewed efforts of parliamentarians to promote the ratification of the Rome Statute, a delegation of PGA conducted a visit to El Salvador later that same year.
Nevertheless, despite the new momentum, much work was needed to be done in terms of dissipating misconceptions and fostering consensus among different political groups. In order to follow up on the commitments that were made by Salvadorian politicians during the PGA field mission to El Salvador in 2009, a multi-party delegation visited the ICC in September 2010, where they voiced their commitment to promote the transmittal of the ICC bill to Parliament.
In May 2014, after perceiving a lack of progress on the matter, PGA send an open letter to the President of El Salvador, H.E. Mauricio Funes, signed by various prominent Latin American PGA members as a way to convince the President to transmit the ratification bill to the parliament during what would be the last month of his presidency. Two weeks after the open letter was sent and distributed by the local press the ratification bill was submitted to Parliament for discussion. On the 23rd and 30th of June, the Legislative Assembly of El Salvador and PGA jointly organized two Expert Seminars on the Rome Statute and its implementation.
Right after the parliamentary elections of 2015, PGA organized another field mission in July 2015 with the aim of sensitizing the newly elected members of parliament to the importance and relevance of the Rome Statute system. Following this event, the 4 main political groups in El Salvador participated in a Special Session on the Ratification and Implementation of the Rome Statute co-organized with the Parliament of Costa Rica. In September 2015, PGA organized a multiparty visit of Salvadorian MPs to the ICC to address any remaining concerns or misunderstandings. The delegation included three prominent PGA Members: Mario Tenorio, Tercer Secretario de la Junta Directiva y Presidente de la Comisión de Legislación y Puntos Constitucionales (GANA), Reynaldo Cardoza, Cuarto Secretario de la Junta Directiva (PCN), Karina Sosa, Presidenta de la Comisión de Relaciones Exteriores, Integración Centroamericana y Salvadoreños en el Exterior (FMLN).
On 24 November 2015, the Foreign Relations Commission approved the ratification bill with a positive vote of 6 against 3. On 26 November the Legislative Assembly followed suit with 44 votes in favor of accession to the Rome Statute, paving the way for El Salvador to become the 124th State Party to the ICC. ARENA, the most numerous political group in the Legislative Assembly, abstained from voting based upon constitutional principles, even though its members expressed their support for the mandate of the Court. A PGA Delegation led by the Secretary-General and integrated by the PGA Legal Advisor, witnessed this historic vote and met with all political groups.
On 30 November and 1 December 2015, the Parliament of El Salvador hosted the 38th Annual Forum of PGA on the role of Parliamentarians in promoting international peace and security.