20 YEARS AFTER ROME: BACK TO THE MAJOR CHALLENGES OF

COOPERATION

• Chief Charles A. Taku, Presdient, ICCBA

Introduction

The ICCBA was represented at the conference of 7 November 2018 by the ICCBA Vice

President for the Defence Dr Caroline Buisman. I was unavoidably absent due to my

involvement in an ongoing trial before the court. The report I received from the distinguished

organisers, France and Senegal was that the contributions made at the conference were very

profound and useful.

According to the concept note distributed with the programme for this plenary event, the

proceedings of the conference have been submitted into the records of the ASP. My

contribution on cooperation relating to arrests will be informed partially by my personal

knowledge of the legal and practical realities of cooperation by states and non-state parties

with arrest warrants issued by the ICC. I will briefly talk about real or perceived ICC

institutional and policy inadequacies in its cooperation with state and non-state parties

towards the execution of arrest warrants issued by the court and proffer suggestions.

Warrants of arrest under the Rome Statute:

The Rome Statute is a complex multilateral treaty. Its complexity arises from its founding

history. Like many multilateral treaties, it was bound to represent the major legal, diplomatic

and political cultures of the world it hoped to serve. This complexity is evident in several

provisions of the statute, among which are those directly or implicitly related to cooperation

generally and the arrest warrants particularly. Whereas the Prosecutor may request a pre-trial

chamber to order a provisional arrest or a warrant of arrest of a person or persons, pursuant to

article 58 of the Rome Statute, the responsibility to arrest and subsequently surrender the

person or persons to the ICC lies on state parties to the Rome Statute or non-state parties

which have entered into an ad hoc agreement with the court.

Pursuant to Article 86 of the Rome Statute “state parties shall, in accordance with the

provisions of the statute, cooperate fully with the court in its investigation and

prosecution of crimes within the jurisdiction of the court”.

Article 89 of the statute ordains that “state parties shall, in accordance with the provisions

of this part and the procedure under their national law comply with the requests for

arrest and surrender”. By this provision, it is required that the execution of arrest warrants

fully respect and comply with the rule of law within national jurisdictions. Under Article 88

of the statute, state parties are expressly mandated to “ensure that there are procedures

available under their national laws for all forms of cooperation.

Procedures under national law may vary from state party to state party. Some state parties

may not yet have in place national procedures that accord with internationally recognized

human rights for the enforcement of warrants issued by the court. For this reason,

procedural hurdles in the enforcement of the warrants of arrest issued by the ICC may vary

from state party to state party.

ICC deference to national procedures in matters of cooperation generally was affirmed by the

ICC Appeals Chamber VII in the case of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo

Musamba, Mr Jean Jacques Mangenda Kabongo, Mr Fidèle Babala Wandu and Mr Narcisse

Arido in which the Appeals Chamber decided that: :para 14 “A State’s collection and

transmission of evidence to the Court is presumed to constitute sufficient indication that

the domestic authorities complied with the applicable procedures under their national

law in the collection of such evidence. “15

It further added that “States may go beyond the explicit duties and conditions contained

in Part 9 of the Statute and offer additional cooperation, unilaterally in their

implementing laws or through agreements and informal ad hoc arrangements with the

Court. The Court may request, and the requested State may provide, forms or

modalities of cooperation in addition to those foreseen in Part 9 of the Statute, provided

that they are not contrary to the Statute, including internationally recognised human

rights, in accordance with article 21 (3) of the Statute.”16

The ICC deference of the ICC to national procedures is evidence in this Appeals Chamber

judgment to the extent that the national procedures are not contrary to the statute, including

internationally recognized human rights, in accordance with article 21(3) of the statute.

Compliance with article 88 of the statute to “ensure that there are specific procedures

available under their national law for all forms of cooperation including those specified

in articles 89, 90, 91 and 92” is a state obligation under the Rome Statute. I do not know if

the ASP or the court has a comprehensive record of state parties that have complied with

article 88 of the statute by “ensuring that there are specific procedures available under

their national law for all forms of cooperation in particular relating to the enforcement

of warrants of arrest and surrender of persons issued by the court to which articles 89,

90, 91 and 92 of the Rome statute relates”.

Many multilateral treaties have permanent verification and compliance mechanisms to

encourage and maintain a permanent dialogue with state parties on the enforcement of the

provisions of the treaties. The difficulties encountered by state parties in the domestication of

the Rome Statute, particularly the provisions relating to arrests and surrender, and other

provisions intended to facilitate the execution of the mandate of the court cannot wait for

yearly state party conferences and the decisions arising therefrom.

The court does not have the mandate to order state parties to enact appropriate national

procedures to facilitate the enforcement of arrest warrants or any form of cooperation

requested by the court. This mandate falls within the customary law treaty responsibility of

the ASP.

Institutional hurdles

There are visible institutional hurdles within the court relating to the roles assigned to key

institutions of the court in obtaining state cooperation in the enforcement of arrest warrants

issued by the court. It is unfortunate that for the past sixteen years, the functioning and duties

of different independent organs of the court appear not to have been fully developed, well

defined and where defined, not understood by many state parties and the wider public.

The Prosecutor is seen by many as the public face of the court. The duties and

responsibilities of the Registrar as an independent organ charged with pursuing state

cooperation in the enforcement of warrants and orders of the court is not visible. Yet the

elaborate cooperation and reporting procedure contained in articles 89 to 98 of the statute is

facilitated by the Registrar, whose independence in proceedings coming before the court

cannot be doubted. Official public statements coming from different independent organs of

the court relating to alleged non-cooperation and the its potential consequences when the

elaborate procedures in the Rome Statute for cooperation in resolving the matters have not

been exhausted, sends mixed signals, are often misrepresented and politicised and renders

cooperation difficult.

In addition to the role of the Registrar as the gatekeeper of ICC international cooperation in

the enforcement of warrants of arrests, the Outreach programme of the court should be

provided adequate resources to maintain a permanent pedagogic presence in State and nonstate parties. It is unfortunate to note that after twenty years of the Rome Statute and sixteen

years of the court, the court and its institutional mandate is still not yet well understood even

in state parties. For example, an ICC warrant of arrest is often conflated with the presumed

guilt of the person against whom it is issued and politicised. The Prosecutor who sought and

obtained the warrant cannot be deemed or seen as an independent voice of the court to

explain the contrary. The Registry through the OPCD is better placed to explain to the person

arrested that he/she can seek various forms of redresses before national jurisdictions and

before the court for his or her release pending trial.

Warrants of arrest must not be a pretrial conviction or punishment but a process under the

authority of the law in which the rights of the arrested person are well respected under the

statute. That is why the abuses of pretrial arrests and detentions must be vigorously

investigated as soon as they are alleged and punished. In effect, upon surrender to the ICC,

the pretrial judge must order an investigation of all investigation, arrests and detention

violations and an effective remedy provided.

Article 85(1) of the ICC statute provides that anyone who has been the victim of unlawful

arrest or detention shall have an enforceable right of compensation. Allegations of the abuses

of the internationally recognized human rights of persons who were arrested and

subsequently surrendered by national jurisdiction have not received in the ICC, the attention

the Rome Statute intended. The deference to national jurisdiction on the enforcement of

arrest warrants by the court has been greatly circumscribed by the ability of the court to

verify credible allegation of egregious violations with a view to providing the remedy

ordained by article 85(1) of the statute. Non-action may be construed as tacit blessing to

impunity.

Persons who are subject of ICC warrants must be assured that in the enforcement of the arrest

warrants against them, they will benefit from all the protections afforded in international law

by virtue of article 21(3) of the Rome statute. It is regrettable that some persons who were

subject of the ICC warrants were killed or lost their lives while the warrants were active and

enforceable, under circumstances which have not been verified through credible, independent

and transparent investigative processes. It a critical factor of transparent justice to conduct

investigations into the death of each person over whom the court has asserted its jurisdiction

and bring persons responsible to account. Doing so enhances the independence and

credibility of the court and may encourage persons against whom warrants have been issued

to willingly surrender to the court for justice to be done.

The limitations imposed by the Rome Statute.

States as subjects of international law are the primary guarantors of their state sovereignty.

The treaty obligations of states notwithstanding, cooperation with states rely on state consent

for vibrancy. Effective and efficient cooperation with states require an experience and

competent corps of diplomats within the court staff for the successful enforcement of the

warrants issued by the court.

The Rome Statute recognized a critical limitation to the enforcement of the warrants of arrest

and surrender of persons to the court. Article 98 of the Rome Statute states: (1): The court

may not proceed with a request for surrender or assistance which would require the requested

state to act inconsistently with its obligations under international law with respect to the state

or diplomatic immunity of a person or property of a third state , unless the court can first

obtain the cooperation of that third state for the waiver of the immunity. (2) The court may

not proceed with a request for surrender which could require the requested state to act

inconsistently with its obligations under international agreements pursuant to which the

consent of a sending state is required to surrender a person of that state to the court, unless

the court can first obtain the cooperation of the sending state for the giving of consent for the

surrender.

The first test of article 98 of the Rome Statute came early in 2003, when the US concluded

article 98 bilateral agreements with some state parties of the Rome Statute. How these

bilateral agreements will impact on actual cases coming before the court in the which the

enforcement of arrest warrants may or not be a factor, cannot be speculated upon now.

Conclusion.

State party cooperation in the enforcement of arrest warrants facilitated the trials at the ICC.

The enforcement of warrants is mandatory only to state parties of the Rome Statute, states

that made ad hoc agreements with the court or relating to referrals made by the UNSC.

Cases of non-cooperation by state parties may be reported to the ASP, by UN member states

to the UNSC for UNSC referrals, for states that have ad hoc agreements with the court, to the

UNSC. There is nothing more the court can do about non-cooperation. Realistically the

UNSC and the ASP are political institutions whose priorities and interests may always not be

consistent with those of the court.

Given this reality, it is safe for me to conclude that the successful enforcement of warrants

issued by the court can only be attained through the professional experience and diplomatic

skills of the women and men to whom the ASP entrusted the administration of the

independent institutions of the court for fulfilment of the objectives of the Rome Statute.