March 11, 2020

Multiple Avenues for State Cooperation with the International Criminal Court – Part One

Written by Freya Baetens

The issue of obtaining State cooperation in prosecutions of criminal suspects is one of the biggest challenges facing the International Criminal Court (ICC). While States are supposed to have clear and binding obligations under Part 9 of the Rome Statute, sometimes those legal obligations are frustrated. As a result, the ICC has adopted an approach that involves ‘multiple avenues of state cooperation’. With no enforcement mechanisms of its own, the ICC has adapted to seek the assistance of States, the UN Security Council, regional organizations and other actors.

Multiple possibilities for State cooperation with the ICC have been formulated, not only by the Assembly of State Parties, but also by a variety of scholars and inter-governmental organizations. State cooperation may include a wide range of issues, including budgetary allocations, arrests, national implementation legislation, ratification of the agreement on privileges and immunities, support through the UN Security Council, and even voluntary cooperation agreements to help with the treatment of witnesses.

In 2007, the Assembly of State Parties of the ICC adopted the 66 Recommendations on cooperation with the ICC. This list was later narrowed to seven priority recommendations, which reflect the multiple avenues of State cooperation that the ICC pursues:

Enacting the legal mechanisms set in the Rome Statute and setting up effective procedures and structures regarding cooperation and judicial assistance;
Cooperation in support of preliminary examinations, investigations, prosecutions and judicial proceedings;
Arrest and surrender;
Identification, seizing and freezing of assets;
Cooperation Agreements;
Diplomatic and public support in national, bilateral, regional and international settings;
Inter-State cooperation in the context of the Rome Statute system.

The ICC Registrar: Peter Lewis

Last October, I moderated a debate with the ICC Registrar, Peter Lewis, on the controversial topic of State cooperation with the ICC. Mr. Lewis was elected Registrar of the International Criminal Court in March 2018 for a five-year term. A British national, he has extensive experience in criminal law, having spent the majority of his career as a member of the Crown Prosecution Service (CPS), including as its Chief Executive and Chief Operating Officer. This has positioned him well to face the tasks at hand in his position at the ICC. He was a UK delegate to the UN Preparatory Commission for the Rules of Procedure and Evidence of the ICC, as well as a member of the expert working group on the draft regulations of the ICC Office of the Prosecutor.

Below I discuss avenues for State cooperation with the ICC, using the examples raised by Mr. Lewis, before ending with some observations of my own.

Witness protection

Article 68(1) of the Rome Statute stipulates the responsibility of the Court to protect the safety, and physical and psychological well-being of victims and witnesses. ICC witnesses can roughly be divided in three groups: expert witnesses, eye witnesses (often victims who may be traumatised) and participating witnesses (who were at the scene, possibly carrying out part of the action, and who are sometimes themselves dangerous or violent people). The latter two groups of witnesses may need witness protection: a new identity and a new place to live with their families. Such relocation has to be safe – both for the witnesses and their families, but also for the communities in which they will be integrated. Often great challenges have to be overcome: the witnesses’ or their families’ mental or physical health may be impaired: they may have been maimed as collateral damage or deliberately, as a warning for others.

The ICC needs the support of States to operate a witness protection programme: to enable witnesses to build a new life, including paying for rehabilitation and prosthetics. Witness protection is an extensive and expensive operation – which is performed under significant time pressure. It may happen that a witness is ‘compromised’ in their new location – so they have to be moved immediately. It may be virtually impossible to protect and relocate certain witnesses, for example, nomadic people are often not willing to move abroad, as became clear recently with regard to witnesses in Mali.

Approximately 21 States, including nine from the GRULAC region, two WEOG, six Eastern European, two African States and two States from the Asia-Pacific group, have signed voluntary cooperation agreements concerning witness protection with the ICC (see 2019 ICC Report on cooperation, para. 59) either committing to look after relocated witnesses themselves (approx. 11 States) or to provide funding to pay other States to do so (approx. 10 States). These figures are approximate as witness relocation agreements remain confidential if the State Parties so request. But more needs to be done, particularly now that some of the most capable States are experiencing problems to provide help due to domestic immigration worries. Cosmopolitan States that have traditionally coped with high immigration are finding it currently politically difficult to cooperate with the ICC in this regard.

Witness protection agreements are not only voluntary acts on the part of the State at the moment of their conclusion – State are also free to refuse to relocate (or to fund the relocation of) any particular witness under the programme on an ad hoc basis. There are dedicated funds in the budget of the ICC for witness protection such as staff in the Victims and Witnesses Unit of the Registry, travel and other costs. However, in order to support States willing to receive witnesses, but not having the capacity (technical or financial) to do so, the Special Fund for Relocation was created. This Special Fund is not part of the ICC budget but forms an external operation of the Registry, so the system is entirely dependent on voluntary support from States. Support should ideally be provided on a predictable basis (in particular as these are long-term operations: for the witness’s entire life) – and by more Member States than is currently the case.

Temporarily or permanently acquitted defendants

As in all criminal trials, an accused may be acquitted by the ICC. This is not a sign that the ICC has somehow ‘failed’ but merely that the bench is impartial and independent in its judgment – and it will acquit a defendant if the evidence is considered insufficient. The Prosecutor can decide to appeal – but in the meantime, the accused is to be deemed innocent and is to be released on an interim basis. If defendants are acquitted on appeal, they are to be released permanently. Usually, such persons wish to ‘go home’ but this is not always possible, as they may have been ‘on the wrong side of the civil war’ and the victorious government (which may have sent them to The Hague) might not want to see them return, acquitted or otherwise.

The implementation of Chamber decisions on interim and/or final release is ensured by the Division in charge of external operations of the Registry. It is the area for which even less voluntary support is available, compared to the witness protection programme. The workload is relatively small (approx. 1-2 persons per trial) but the ICC has only managed to conclude two voluntary agreements with States willing to take care of defendants released on an interim basis (with Belgium and Argentina), and only one voluntary agreement with regard to final release (with Argentina). In comparison, 12 States have concluded voluntary cooperation agreements concerning the enforcement of sentences (Austria, UK, Belgium, Finland, Denmark, Serbia, Mali, Norway, Argentina, Sweden, Georgia and Slovenia; two further ad hoc agreements were concluded with the DRC).

Sometimes implementation of such decisions can be easy, in particular if voluntary agreements have been signed by States who receive the requests for implementation as it happened in early 2019, in the case of Laurent Gbagbo and Charles Blé Goudé. Belgium agreed to take over Mr. Gbagbo pending the appeal on the basis of the interim agreement signed with the Court. The transfer was arranged within 2-3 days after their acquittal by the Trial Chamber.

In the case of the acquittal of Mathieu Ngudjolo Chui who was to be released from ICC custody in 2012, however, the Registry tried and failed to find any State willing to accept the defendant while the appeal was pending. Ultimately, The Netherlands allowed him to stay. After his acquittal was confirmed by the Appeals Chamber in 2015, he applied for asylum in The Netherlands and Switzerland, but these applications were rejected and he was deported to the DRC.