WEBVTT 00:00:12.800 --> 00:00:14.560 I have chosen to focus 00:00:14.560 --> 00:00:17.520 on one of the shorter provisions in the Rome Statute, 00:00:17.740 --> 00:00:19.520 which, despite its potential 00:00:19.520 --> 00:00:21.520 for influencing the effective functioning 00:00:21.520 --> 00:00:23.520 of the ICC regime, has not been 00:00:23.520 --> 00:00:25.520 the subject of much academic 00:00:25.540 --> 00:00:26.840 scrutiny to date. 00:00:27.260 --> 00:00:29.680 This provision is Article 88. 00:00:30.460 --> 00:00:32.340 The Rome Statute contains 00:00:32.340 --> 00:00:34.200 a limited number of positive 00:00:34.200 --> 00:00:36.920 obligations directed at States Parties. 00:00:37.400 --> 00:00:38.920 Most of such obligations 00:00:38.920 --> 00:00:41.220 can be found in Part 9 of the Statute, 00:00:41.440 --> 00:00:44.680 which covers issues pertaining to cooperation with the Court. 00:00:45.540 --> 00:00:51.040 Article 88 on ‘Availability of procedures under national law’ reads: 00:00:52.080 --> 00:00:54.280 “States Parties shall ensure 00:00:54.420 --> 00:00:56.640 that there are procedures available 00:00:56.640 --> 00:00:58.160 under their national law 00:00:58.440 --> 00:01:00.820 for all of the forms of cooperation 00:01:00.820 --> 00:01:03.460 which are specified under this Part”. 00:01:04.380 --> 00:01:07.340 Therefore, by virtue of Article 88, 00:01:07.660 --> 00:01:10.100 States undertake to make sure 00:01:10.100 --> 00:01:12.100 that procedures are available 00:01:12.100 --> 00:01:14.600 in their national laws enabling them 00:01:14.600 --> 00:01:17.260 to comply with the Court’s cooperation regime. 00:01:18.020 --> 00:01:21.460 Article 88 encapsulates the obligation 00:01:21.460 --> 00:01:23.460 a State has to legislate 00:01:23.840 --> 00:01:26.780 in order to enable its national legal system 00:01:26.780 --> 00:01:30.620 to respond to ICC requests for effective cooperation. 00:01:31.520 --> 00:01:33.400 There is no equivalent provision 00:01:33.400 --> 00:01:35.400 on the implementation of substantive law 00:01:35.400 --> 00:01:37.060 provisions found in the Statute, 00:01:37.060 --> 00:01:40.400 which, in my view, leaves a considerable gap. 00:01:42.120 --> 00:01:46.300 Let us now turn to what Article 88 covers. 00:01:46.940 --> 00:01:51.020 The drafting history of this provision is not particularly remarkable. 00:01:51.320 --> 00:01:54.020 As with many other provisions in the Statute, 00:01:54.020 --> 00:01:57.560 during the negotiations at Rome, a compromise was reached 00:01:57.560 --> 00:01:59.560 between those who felt 00:01:59.560 --> 00:02:04.760 that ICC-State cooperation should be governed by procedures found in the Statute, 00:02:05.020 --> 00:02:08.780 and those who opposed this on the grounds of State sovereignty. 00:02:09.400 --> 00:02:11.940 The Rome Statute does not dictate 00:02:11.940 --> 00:02:13.940 a common international procedure 00:02:13.940 --> 00:02:15.620 to be followed by States, 00:02:15.620 --> 00:02:18.440 when executing an ICC cooperation request. 00:02:19.120 --> 00:02:22.420 The manner of execution rests with the State, 00:02:22.420 --> 00:02:25.820 which, under the general obligation to cooperate 00:02:25.820 --> 00:02:29.920 with the Court, found in Article 86 of the Statute, 00:02:30.080 --> 00:02:33.400 undertakes to do so in accordance with procedures 00:02:33.400 --> 00:02:35.400 found in its national law. 00:02:35.800 --> 00:02:38.120 In fact, a number of provisions in the 00:02:38.120 --> 00:02:40.420 cooperation part of the ICC Statute 00:02:40.420 --> 00:02:42.420 make reference to national law. 00:02:42.940 --> 00:02:54.520 See for instance, Articles 89(1), 91(4), 91(3), 96(3) and Article 99(1) of the Statute. 00:02:55.560 --> 00:02:58.700 However, the existence of Article 88 means 00:02:58.700 --> 00:03:02.660 that a State cannot use the absence of national procedures 00:03:02.660 --> 00:03:05.400 as an excuse for non-cooperation. 00:03:05.760 --> 00:03:09.740 This provision therefore aims to rectify a particular problem 00:03:09.960 --> 00:03:13.220 that had arisen in the early practice of the ICTY in particular, 00:03:13.480 --> 00:03:15.800 where States used the absence 00:03:15.800 --> 00:03:19.120 of relevant national legislation to avoid cooperation. 00:03:19.720 --> 00:03:24.400 This is what the drafters wanted to avoid through the inclusion of Article 88. 00:03:25.020 --> 00:03:29.780 Furthermore, Article 88 provides the authority a State needs 00:03:29.780 --> 00:03:31.780 to incorporate the Statute nationally; 00:03:32.260 --> 00:03:34.620 or at least the cooperation part of the Statute. 00:03:35.500 --> 00:03:38.040 There are certain provisions in the Rome Statute 00:03:38.040 --> 00:03:41.600 that we cannot expect to find in national legislation. 00:03:41.960 --> 00:03:44.680 These sorts of provisions need to be introduced 00:03:44.680 --> 00:03:47.280 for the purposes of complying with the Statute. 00:03:47.520 --> 00:03:49.980 What I’m thinking of here is for instance 00:03:49.980 --> 00:03:51.980 the provision on competing requests 00:03:51.980 --> 00:03:54.600 that is, in Article 90 of the Statute. 00:03:55.200 --> 00:03:58.100 In that, priority is given to requests 00:03:58.100 --> 00:04:00.880 coming from the Court when certain conditions are met; 00:04:01.460 --> 00:04:04.160 Or, the rules applicable to the contents 00:04:04.160 --> 00:04:08.720 of an ICC request (articles 91 and 96 of the Statute) 00:04:08.940 --> 00:04:11.880 which wouldn’t be found at the national level 00:04:11.880 --> 00:04:14.420 prior to implementing the ICC Statute. 00:04:15.680 --> 00:04:18.520 Article 88 therefore serves 00:04:18.520 --> 00:04:20.820 as a gateway to all those provisions 00:04:20.820 --> 00:04:23.060 that need to be incorporated. 00:04:23.800 --> 00:04:26.700 Other such examples that may be alien 00:04:26.700 --> 00:04:28.700 to a number of States, would include 00:04:28.700 --> 00:04:32.740 the obligation to surrender a State’s own nationals for instance. 00:04:33.020 --> 00:04:35.640 This is not common in some legal systems, 00:04:35.640 --> 00:04:39.040 which preclude the extradition of own nationals. 00:04:39.560 --> 00:04:41.620 Equally, the limited grounds 00:04:41.620 --> 00:04:43.620 on which a State can refuse to execute 00:04:43.620 --> 00:04:45.620 an ICC cooperation request 00:04:45.620 --> 00:04:49.760 I’m referring to here to the provision of national security 00:04:49.920 --> 00:04:51.920 and a conflict with a pre-existing 00:04:51.920 --> 00:04:53.920 fundamental legal principle 00:04:53.920 --> 00:04:55.920 of general application both of 00:04:55.920 --> 00:04:57.920 which are found in the Statute 00:04:58.800 --> 00:05:02.420 Article 88 therefore provides the basis 00:05:02.520 --> 00:05:04.700 on which a State may proceed 00:05:04.820 --> 00:05:07.860 with the necessary amendments of existing laws 00:05:08.040 --> 00:05:11.320 or with enacting new provisions, where necessary. 00:05:12.420 --> 00:05:14.980 Is there an obligation to legislate elsewhere 00:05:14.980 --> 00:05:17.560 in international law or in the Rome Statute? 00:05:19.560 --> 00:05:22.140 Having examined the scope of Article 88, 00:05:22.460 --> 00:05:25.060 the next step will be to investigate 00:05:25.140 --> 00:05:27.620 whether an obligation to adopt legislation 00:05:27.620 --> 00:05:29.880 exists elsewhere in the Statute. 00:05:30.520 --> 00:05:33.440 While the Statute in its Preamble 00:05:33.440 --> 00:05:36.220 in the 4th and 6th preambular paragraphs 00:05:36.680 --> 00:05:40.000 acknowledges the “duty of every State” 00:05:40.000 --> 00:05:43.380 to investigate and prosecute international crimes, 00:05:43.940 --> 00:05:46.700 the body of the Statute does not contain 00:05:46.740 --> 00:05:49.040 a binding obligation in that respect. 00:05:50.200 --> 00:05:53.220 In general treaty law, the preamble may be used 00:05:53.220 --> 00:05:55.800 for the purposes of interpretation of a treaty, 00:05:56.240 --> 00:05:59.200 but no legal obligation arises therefrom. 00:05:59.860 --> 00:06:02.860 An examination of the existence or not 00:06:02.860 --> 00:06:04.860 of such an obligation in 00:06:04.860 --> 00:06:06.860 international treaty or customary law 00:06:06.860 --> 00:06:08.860 is therefore necessary. 00:06:09.260 --> 00:06:12.140 A number of provisions in international treaty law 00:06:12.140 --> 00:06:14.140 oblige State parties to enact 00:06:14.140 --> 00:06:16.260 legislation for those who commit 00:06:16.260 --> 00:06:18.260 or order war crimes. 00:06:18.380 --> 00:06:20.260 Article 49 of the 00:06:20.260 --> 00:06:21.920 first Geneva Convention, 00:06:21.920 --> 00:06:24.600 Article 50 of the second Geneva Convention, 00:06:24.800 --> 00:06:28.140 Article 129 of the third Geneva Convention 00:06:28.240 --> 00:06:31.900 and Article 146 of the fourth Geneva Convention, 00:06:31.900 --> 00:06:34.980 require the adoption of penal legislation 00:06:35.100 --> 00:06:38.580 to cover the crimes of committing or ordering wilful killing, 00:06:38.980 --> 00:06:41.260 torture or inhumane treatment 00:06:41.260 --> 00:06:43.260 including biological experiments, 00:06:43.260 --> 00:06:47.320 wilfully causing great suffering or serious injury to body or health, 00:06:47.660 --> 00:06:50.900 extensive destruction and appropriation of property 00:06:50.900 --> 00:06:53.560 against one of the protected groups, that is civilians, 00:06:53.560 --> 00:06:58.740 wounded, sick, shipwrecked members of the armed forces and prisoners of war 00:06:59.740 --> 00:07:03.160 Additional Protocol I to the Four Geneva Conventions 00:07:03.480 --> 00:07:07.440 also provides for such an obligation in its Article 86. 00:07:08.200 --> 00:07:12.620 In addition, Article 5 of the Genocide Convention stipulates 00:07:12.840 --> 00:07:16.480 that States parties “undertake to enact, 00:07:16.480 --> 00:07:19.940 in accordance with their respective Constitutions, 00:07:19.940 --> 00:07:22.680 the necessary legislation to give effect 00:07:22.720 --> 00:07:24.940 to the provisions of the present Convention, 00:07:25.220 --> 00:07:28.520 and, in particular, to provide effective penalties 00:07:28.520 --> 00:07:30.520 for persons guilty of genocide 00:07:30.520 --> 00:07:33.380 or any of the other acts” of genocide. 00:07:34.780 --> 00:07:38.060 That the violation of the obligation to prosecute and punish 00:07:38.060 --> 00:07:40.060 may entail State responsibility, 00:07:40.420 --> 00:07:44.160 has also been established, whereas the obligation to legislate 00:07:44.320 --> 00:07:48.120 has been characterised as being part of customary international law. 00:07:49.140 --> 00:07:51.800 Whilst certain provisions of the Geneva Conventions 00:07:51.800 --> 00:07:54.600 as well as the Genocide Convention may well have achieved 00:07:54.600 --> 00:07:56.600 the status of customary law, 00:07:56.780 --> 00:07:59.420 one may cast some doubt as to whether 00:07:59.540 --> 00:08:02.760 the obligation to legislate is indeed customary. 00:08:03.500 --> 00:08:04.960 Even if this were the case, 00:08:04.960 --> 00:08:07.220 the examples I have just mentioned 00:08:07.440 --> 00:08:10.680 would not cover all of the crimes found in the ICC Statute; 00:08:11.000 --> 00:08:12.920 for crimes against humanity in particular, 00:08:13.120 --> 00:08:15.500 a legislative gap would remain. 00:08:16.480 --> 00:08:19.100 Several other arguments have been put forward 00:08:19.100 --> 00:08:20.680 in support of the view that 00:08:20.680 --> 00:08:22.680 the implementation of the substantive law 00:08:22.680 --> 00:08:24.400 part of the Statute constitutes 00:08:24.400 --> 00:08:26.400 an obligation for States Parties. 00:08:26.880 --> 00:08:29.900 Some argue that that the “overwhelming practice 00:08:29.900 --> 00:08:32.560 of States parties to the Rome Statute to implement 00:08:32.560 --> 00:08:35.560 the substantive law clearly establishes 00:08:35.560 --> 00:08:38.540 an agreement, understood as a common understanding 00:08:38.540 --> 00:08:42.600 about the meaning of the treaty as requiring them to do so” 00:08:42.920 --> 00:08:45.320 in accordance with the rules of interpretation 00:08:45.460 --> 00:08:49.560 of international treaties found in Article 31(3)(b) 00:08:49.560 --> 00:08:51.560 of the Vienna Convention. 00:08:51.900 --> 00:08:56.240 This position, albeit certainly appealing, is in my view, flawed. 00:08:56.780 --> 00:09:00.040 In order to accept that subsequent State practice 00:09:00.120 --> 00:09:03.320 constitutes a good indication of the States Parties’ 00:09:03.320 --> 00:09:05.600 understanding of the meaning of the treaty, 00:09:05.860 --> 00:09:08.260 the practice needs to be consistent 00:09:08.460 --> 00:09:11.880 and adopted by all such Parties to the treaty. 00:09:12.760 --> 00:09:15.700 Although this does not mean that all States Parties 00:09:15.700 --> 00:09:18.220 need to be engaged in such practice, 00:09:18.440 --> 00:09:23.080 it is hard to see what would qualify as tacit 00:09:23.080 --> 00:09:27.280 acceptance of the additional positive obligation of the State to legislate 00:09:27.460 --> 00:09:29.540 in the field of substantive criminal law; 00:09:29.920 --> 00:09:33.900 except to, in fact, enact relevant legislation. 00:09:34.860 --> 00:09:38.220 In addition, in order for the subsequent practice 00:09:38.220 --> 00:09:41.560 to be classed as reliable source of treaty interpretation, 00:09:42.080 --> 00:09:46.320 there should not exist a clear difference of opinion between States Parties. 00:09:46.880 --> 00:09:49.060 Whilst it cannot be said that 00:09:49.060 --> 00:09:52.240 the States which have included the provisions on substantive 00:09:52.240 --> 00:09:53.780 law in their implementing legislations 00:09:54.100 --> 00:09:57.340 have done so because they perceive this to be an obligation, 00:09:57.700 --> 00:10:00.500 some States Parties clearly stipulated 00:10:00.500 --> 00:10:04.020 that they do not consider this to be a legally binding duty, 00:10:04.160 --> 00:10:06.780 whereas others have only adopted legislation 00:10:06.920 --> 00:10:09.500 covering solely the cooperation regime. 00:10:11.080 --> 00:10:13.780 This highlights the difference in opinion 00:10:13.940 --> 00:10:16.260 and militates against a finding 00:10:16.360 --> 00:10:19.400 that the subsequent practice of States Parties 00:10:19.400 --> 00:10:21.180 would be a good reference point 00:10:21.300 --> 00:10:23.500 regarding an obligation to legislate. 00:10:24.580 --> 00:10:27.420 Another argument in support of the position 00:10:27.520 --> 00:10:30.160 that the Rome Statute ought to be interpreted 00:10:30.160 --> 00:10:32.160 as if containing a positive obligation 00:10:32.160 --> 00:10:34.280 to implement the substantive part of the Statute 00:10:34.720 --> 00:10:38.700 is an interpretation in light of its object and purpose. 00:10:39.500 --> 00:10:43.040 Whilst it is true that the ultimate purpose of 00:10:43.040 --> 00:10:47.160 the ICC Statute is the “ending of the practice of impunity”, 00:10:47.620 --> 00:10:49.160 the text of the Statute 00:10:49.160 --> 00:10:51.520 is not concerned with how 00:10:51.520 --> 00:10:54.240 this overarching goal will be achieved nationally, 00:10:54.720 --> 00:10:57.140 and deals solely with the international 00:10:57.140 --> 00:11:00.140 dimension of the prosecution of international crimes. 00:11:01.120 --> 00:11:03.320 With the exception of compelementarity, 00:11:03.420 --> 00:11:06.580 all other references to national procedures in the Statute 00:11:06.940 --> 00:11:10.400 are aimed at facilitating co-operation with the ICC 00:11:10.500 --> 00:11:12.300 at the international level. 00:11:13.140 --> 00:11:16.660 States Parties therefore have absolute discretion 00:11:16.740 --> 00:11:19.480 as to how they deal with national prosecutions, 00:11:19.620 --> 00:11:22.280 if indeed they decide to prosecute. 00:11:23.020 --> 00:11:25.120 An argument based on the object 00:11:25.120 --> 00:11:27.120 and purpose of the Statute to support 00:11:27.120 --> 00:11:29.120 national implementation of crimes 00:11:29.120 --> 00:11:31.520 would therefore not be very helpful. 00:11:32.420 --> 00:11:36.100 In addition, academic opinion is sufficiently uniform 00:11:36.240 --> 00:11:37.580 behind the fact that 00:11:37.580 --> 00:11:40.020 there is no clear obligation in the Statute 00:11:40.140 --> 00:11:43.980 as it stands to introduce the substantive provisions of the Statute 00:11:43.980 --> 00:11:45.980 into the national legal systems. 00:11:46.660 --> 00:11:48.780 One academic rightly observes 00:11:48.780 --> 00:11:50.780 “that one cannot impose any 00:11:50.780 --> 00:11:52.780 duty upon States unless 00:11:52.780 --> 00:11:55.280 it has been explicitly laid 00:11:55.280 --> 00:11:57.680 down and agreed upon by them. 00:11:58.460 --> 00:12:00.420 A mere reference in the Preamble 00:12:00.420 --> 00:12:02.420 would not suffice to derive 00:12:02.420 --> 00:12:04.420 any legally binding duty.” 00:12:04.840 --> 00:12:07.220 Moreover, others point out 00:12:07.220 --> 00:12:09.600 that “States Parties are not strictly 00:12:09.600 --> 00:12:11.600 obliged to change their domestic laws 00:12:11.600 --> 00:12:13.960 to ensure parity with the statute 00:12:14.100 --> 00:12:17.300 in all aspects of domestic criminal law and procedure 00:12:17.520 --> 00:12:21.180 in order to avail themselves of the complementarity regime.” 00:12:21.880 --> 00:12:25.200 Whereas yet another notes that “the Statute 00:12:25.200 --> 00:12:27.200 contains no specific obligation 00:12:27.200 --> 00:12:29.200 on States to implement the Statute's 00:12:29.200 --> 00:12:31.200 provisions per se.” 00:12:31.480 --> 00:12:33.200 States will, nevertheless, 00:12:33.200 --> 00:12:36.900 still have to check whether their own legal systems 00:12:36.900 --> 00:12:38.900 are sufficiently well equipped to meet 00:12:38.900 --> 00:12:40.900 the standards set by the Statute, 00:12:40.900 --> 00:12:43.240 and indeed whether they will need to adapt 00:12:43.240 --> 00:12:46.000 their existing laws or adopt new ones. 00:12:46.580 --> 00:12:49.060 Even those who consider implementation 00:12:49.120 --> 00:12:51.060 to be driven by the threat 00:12:51.060 --> 00:12:53.060 of the ICC exercising its jurisdiction, 00:12:53.060 --> 00:12:55.060 do not recognise 00:12:55.060 --> 00:12:57.660 an obligation to enact legislation in the Statute. 00:12:58.460 --> 00:13:00.580 The question therefore remains: 00:13:00.920 --> 00:13:03.720 To legislate or not to legislate? 00:13:04.540 --> 00:13:08.340 Despite the absence of an existing explicit, 00:13:08.340 --> 00:13:10.560 legal obligation, a number of 00:13:10.560 --> 00:13:12.560 States have incorporated the crimes 00:13:12.560 --> 00:13:14.560 into their domestic legal systems. 00:13:15.320 --> 00:13:18.860 A quick look through the National Implementing Legislation Database, 00:13:18.860 --> 00:13:20.940 which I have curated for over a decade now 00:13:21.420 --> 00:13:24.720 and which forms part of the ICC’s Legal Tools Project, 00:13:25.040 --> 00:13:27.000 reveals that of those States 00:13:27.000 --> 00:13:29.400 that have specifically enacted legislation, 00:13:29.820 --> 00:13:32.440 most have incorporated the crimes. 00:13:34.080 --> 00:13:36.780 This may be attributed to a 00:13:36.780 --> 00:13:38.780 number of reasons, including convenience, 00:13:38.780 --> 00:13:40.780 good international citizenship 00:13:40.780 --> 00:13:43.840 or the very catalytic effect of complementarity. 00:13:45.000 --> 00:13:48.940 Convenience lies in the use of a single legislative process 00:13:49.220 --> 00:13:52.360 to incorporate all relevant Statute provisions. 00:13:52.800 --> 00:13:55.800 As States are required, under the Statute, 00:13:55.940 --> 00:13:57.800 to provide for national procedures 00:13:57.800 --> 00:13:59.800 with regard to the cooperation regime, 00:14:00.000 --> 00:14:01.800 by virtue of article 88 00:14:02.180 --> 00:14:03.800 a single legislative 00:14:03.800 --> 00:14:05.800 process to review or adopt 00:14:05.800 --> 00:14:08.000 all ICC-related legislation 00:14:08.240 --> 00:14:10.880 is both cost and time efficient. 00:14:11.900 --> 00:14:14.620 Moreover, States wishing to demonstrate 00:14:14.620 --> 00:14:16.800 that they take an active part in the fight 00:14:16.800 --> 00:14:19.180 against impunity were quick to adopt 00:14:19.180 --> 00:14:21.180 crimes legislation as part of 00:14:21.180 --> 00:14:23.180 their wider international role, 00:14:23.340 --> 00:14:26.720 coupled with the realisation that the ICC 00:14:26.720 --> 00:14:28.720 due to limited finances 00:14:28.720 --> 00:14:31.220 can only prosecute a handful of cases. 00:14:31.720 --> 00:14:34.200 As a result, the bulk of the work 00:14:34.200 --> 00:14:36.200 remains at the national level. 00:14:37.200 --> 00:14:39.580 But none of the above reasons is 00:14:39.580 --> 00:14:41.960 as strong an incentive as complementarity. 00:14:42.880 --> 00:14:45.940 Complementarity is the result of a delicate balance 00:14:45.940 --> 00:14:49.220 between the quest for ICC supremacy and State sovereignty. 00:14:49.860 --> 00:14:53.500 Much has been written on the principle and its ramifications. 00:14:53.820 --> 00:14:57.700 Complementarity was adopted with the view to safeguarding State sovereignty 00:14:57.980 --> 00:15:01.120 but it can be seen as an equitable 00:15:01.120 --> 00:15:04.860 tool of allocating jurisdiction between the Court and States. 00:15:05.580 --> 00:15:10.240 Against this backdrop, complementarity represents an opportunity 00:15:10.960 --> 00:15:14.680 for States to enact legislation 00:15:14.680 --> 00:15:16.900 on the crimes and associated provisions 00:15:17.400 --> 00:15:21.000 even if this is purely to avoid the ICC’s jurisdiction. 00:15:22.420 --> 00:15:24.560 As the ICC may take over 00:15:24.560 --> 00:15:28.640 from national jurisdiction only if it is established that a State 00:15:28.640 --> 00:15:31.920 with jurisdiction over the crimes is unwilling or unable 00:15:31.920 --> 00:15:34.560 genuinely to investigate and prosecute those crimes 00:15:34.720 --> 00:15:36.760 (see Article 17 of the Statute), 00:15:37.160 --> 00:15:40.560 it is necessary to examine whether the absence 00:15:40.560 --> 00:15:43.140 of a satisfactory national legal framework 00:15:43.360 --> 00:15:47.440 would prima facie indicate the unavailability of the State 00:15:47.560 --> 00:15:49.920 to deal with the crimes under the Statute. 00:15:50.920 --> 00:15:53.960 The key to effective national exercise of jurisdiction is 00:15:53.960 --> 00:15:55.960 found in the genuineness of the proceedings. 00:15:56.720 --> 00:15:59.340 Given that the Statute does not prescribe a 00:15:59.340 --> 00:16:01.520 particular approach to be adopted nationally, 00:16:01.820 --> 00:16:04.080 the form the legislation may 00:16:04.080 --> 00:16:06.080 take is left to the State in question. 00:16:06.800 --> 00:16:09.560 It is a common practice, for instance, to prosecute 00:16:09.560 --> 00:16:11.560 core crimes as ordinary crimes 00:16:11.560 --> 00:16:12.920 at the national level. 00:16:13.280 --> 00:16:16.380 For example, as murder, rape etc. 00:16:17.240 --> 00:16:19.560 Many States have endorsed this approach. 00:16:20.240 --> 00:16:22.640 The famous trial of Lt. Calley 00:16:22.640 --> 00:16:24.840 for the My Lai massacre in Vietnam, 00:16:25.060 --> 00:16:28.540 was classed as a premeditated murder 00:16:28.820 --> 00:16:30.860 and assault with intent to murder, 00:16:31.020 --> 00:16:33.660 whereas the Abu Ghraib cases included 00:16:33.880 --> 00:16:35.660 charges of indecent acts, 00:16:35.660 --> 00:16:39.120 dereliction of duties, maltreatment and assault. 00:16:40.440 --> 00:16:43.080 Prosecuting the case as an ordinary crime 00:16:43.080 --> 00:16:46.600 does not render the State unwilling or unable automatically. 00:16:47.140 --> 00:16:49.720 It is the quality of the process that matters. 00:16:50.020 --> 00:16:52.780 The ICC itself has dealt with these issues 00:16:52.780 --> 00:16:56.960 in its jurisprudence arising out of the situation in Libya for example. 00:16:58.000 --> 00:17:01.320 This does not mean, however, that common criminal law provisions 00:17:01.480 --> 00:17:03.540 will always be suitable for 00:17:03.540 --> 00:17:06.620 the prosecution of certain conducts criminalised by the Rome Statute. 00:17:07.120 --> 00:17:10.080 For example, it is questionable whether all 00:17:10.080 --> 00:17:12.900 forms of persecution as a crime against humanity 00:17:12.900 --> 00:17:16.360 would be covered by ordinary criminal law provisions. 00:17:16.860 --> 00:17:19.820 The same holds true with some of the war crimes, 00:17:19.820 --> 00:17:22.760 such as the crime of improper use of the flag of truce, 00:17:23.160 --> 00:17:25.540 transfer of the own civilian population 00:17:25.540 --> 00:17:29.460 on the occupied territory, denial of quarter etc. 00:17:30.300 --> 00:17:34.880 In addition, not all of the modes of individual criminal responsibility, 00:17:34.880 --> 00:17:36.880 such as command responsibility 00:17:36.880 --> 00:17:39.040 or joint criminal enterprise 00:17:39.040 --> 00:17:41.480 can be found in national legal orders. 00:17:41.900 --> 00:17:45.740 Defences should also be reviewed as part of this process. 00:17:45.740 --> 00:17:48.840 In the above cases, it may be impossible 00:17:48.840 --> 00:17:51.940 for a State to prosecute and the admissibility criteria 00:17:52.060 --> 00:17:54.720 found in the Statute could be satisfied, 00:17:54.880 --> 00:17:57.600 leading to a trial before the ICC. 00:17:59.000 --> 00:18:01.700 Treating core crimes as ordinary crimes 00:18:01.700 --> 00:18:03.700 will not always be appropriate. 00:18:04.160 --> 00:18:07.240 The acknowledgement of the gravity of the crimes 00:18:07.240 --> 00:18:10.340 is an important part of the judicial process 00:18:10.340 --> 00:18:12.340 involving core crimes with 00:18:12.340 --> 00:18:14.340 this element having been 00:18:14.340 --> 00:18:16.580 incorporated also into the Statute. 00:18:17.440 --> 00:18:21.460 At the national level, this element is equally important. 00:18:21.860 --> 00:18:25.080 International crimes carry an additional stigma 00:18:25.200 --> 00:18:27.480 which distinguishes them from ordinary crimes. 00:18:28.240 --> 00:18:32.940 Ordinary crimes usually ignore the seriousness of the violations of international law. 00:18:33.460 --> 00:18:35.980 As such, the gravity of the crimes 00:18:35.980 --> 00:18:39.900 should be observed, through the enactment of national legislation. 00:18:40.940 --> 00:18:43.460 An added reason in favour of enacting 00:18:43.460 --> 00:18:45.920 legislation to include substantive law 00:18:46.240 --> 00:18:48.840 is a shift in the policy on complementarity. 00:18:49.180 --> 00:18:51.960 With the emphasis on positive complementarity, 00:18:52.240 --> 00:18:55.220 implementing legislation takes centre stage. 00:18:55.960 --> 00:18:59.500 For positive complementarity to work, it is not enough 00:18:59.500 --> 00:19:01.780 to rely on the OTP to steer 00:19:01.780 --> 00:19:05.460 national processes towards more investigations and prosecutions. 00:19:05.960 --> 00:19:08.440 Although the Prosecutor’s power of leverage 00:19:08.440 --> 00:19:11.900 and persuasion will undoubtedly influence national activity, 00:19:12.160 --> 00:19:16.020 such encouragement runs the risk of becoming a paper exercise 00:19:16.020 --> 00:19:18.020 if there is no clear national 00:19:18.020 --> 00:19:20.020 legislative framework in place which will 00:19:20.020 --> 00:19:22.780 enable States to exercise criminal jurisdiction. 00:19:24.340 --> 00:19:27.680 If the emphasis on positive complementarity were to succeed, 00:19:27.860 --> 00:19:32.960 a more systematic approach towards empowering national legal orders is needed. 00:19:33.800 --> 00:19:35.740 Introducing an obligation to enact 00:19:35.740 --> 00:19:39.160 legislation for instance, would considerably reduce 00:19:39.160 --> 00:19:42.220 State claims that prosecutions are impossible 00:19:42.220 --> 00:19:44.520 due to the absence of national legislation. 00:19:45.220 --> 00:19:47.460 Such an approach would encourage not only 00:19:47.460 --> 00:19:49.460 closer but also more meaningful 00:19:49.460 --> 00:19:53.500 interaction between the national and international levels. 00:19:54.800 --> 00:19:58.460 The result of this would be allocation of ICC resources 00:19:58.460 --> 00:20:01.020 to those cases only that bear 00:20:01.020 --> 00:20:05.180 the greatest gravity together with greater involvement of national courts. 00:20:05.980 --> 00:20:09.700 The enactment of legislation as a means of materialising positive 00:20:09.700 --> 00:20:11.700 complementarity is therefore 00:20:11.700 --> 00:20:13.700 more pressing than ever. 00:20:14.740 --> 00:20:17.520 With a number of the situations currently before the ICC 00:20:17.520 --> 00:20:23.780 originating from self-referrals, i.e. States referring the situation in their own countries, 00:20:24.260 --> 00:20:27.520 poses more questions on complementarity. 00:20:28.360 --> 00:20:33.280 The possibility of a State refraining from prosecutions altogether, 00:20:33.560 --> 00:20:36.100 allowing the ICC to take over, 00:20:36.220 --> 00:20:39.500 had not been envisaged when the Statute was drafted. 00:20:40.080 --> 00:20:43.260 An obligation to provide for legislation for core crimes 00:20:43.400 --> 00:20:45.260 would not alleviate this position. 00:20:45.760 --> 00:20:49.260 Although it is hard to say that the absence of such 00:20:49.260 --> 00:20:51.260 an obligation encourages the so-called 00:20:51.260 --> 00:20:53.260 “inaction scenario”, it is 00:20:53.260 --> 00:20:55.260 hoped that some States in certain 00:20:55.260 --> 00:20:57.260 circumstances may be less inclined 00:20:57.260 --> 00:20:59.260 to abstain from any activity, 00:20:59.260 --> 00:21:01.640 if legislation were to be in place. 00:21:02.880 --> 00:21:06.960 I guess my discussion above confirms that the Rome system 00:21:06.960 --> 00:21:10.680 of justice, which has the ICC at its centre, 00:21:10.960 --> 00:21:15.800 would be strengthened if there were an obligation in the Statute to incorporate 00:21:15.800 --> 00:21:17.800 substantive law to complement the 00:21:17.800 --> 00:21:19.800 existing obligation to enact 00:21:19.800 --> 00:21:21.800 legislation for cooperation, currently 00:21:21.800 --> 00:21:24.960 found in Article 88 of the Statute. 00:21:25.560 --> 00:21:29.620 To conclude: De lege ferenda, it might be worth considering 00:21:29.620 --> 00:21:31.620 in a future amendment of the Statute, 00:21:31.620 --> 00:21:33.620 to include an obligation for 00:21:33.620 --> 00:21:35.620 a State to enact legislation 00:21:35.620 --> 00:21:39.220 also for the substantive law provisions. 00:21:39.640 --> 00:21:43.600 Whether expanding Article 88 is the right home for such an amendment 00:21:43.900 --> 00:21:46.280 or introducing a new provision to that respect, 00:21:46.280 --> 00:21:48.360 will need to be discussed further. 00:21:48.760 --> 00:21:52.680 However, the issue that remains be more pressing 00:21:53.060 --> 00:21:55.780 is that of the content of legislation. 00:21:56.180 --> 00:21:59.120 Having legislation that not only fully serves 00:21:59.240 --> 00:22:01.420 a State’s cooperation obligations 00:22:01.420 --> 00:22:03.420 under the Rome Statute but 00:22:03.420 --> 00:22:05.420 also enables it to effectively 00:22:05.420 --> 00:22:07.420 investigate and prosecute, is 00:22:07.420 --> 00:22:09.420 key to the success of the international 00:22:09.420 --> 00:22:11.420 criminal justice system comprised 00:22:11.420 --> 00:22:16.320 of the Court and States operating alongside each other to fight impunity. 00:22:16.920 --> 00:22:19.720 Of the current membership of the Court, just over 00:22:19.720 --> 00:22:22.260 half of the States Parties to the Statute, 00:22:22.260 --> 00:22:24.620 have implemented it at the national level. 00:22:25.160 --> 00:22:28.780 Striving for universality of implementation is important, 00:22:28.980 --> 00:22:31.820 if the Court is to succeed in its functions. 00:22:32.220 --> 00:22:36.300 And Article 88 plays its part in it. Thank you! 00:22:36.300 --> 00:22:38.300