SEEKING UNIVERSALITY OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT THROUGH THE UNITED NATIONS HUMAN RIGHTS COUNCIL

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1 SEEKING UNIVERSALITY OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT THROUGH THE UNITED NATIONS HUMAN RIGHTS COUNCIL During the 1 st cycle of the United Nations Human Rights Council s Universal Periodic Review (UPR) ( ), States Parties to the Rome Statute of the International Criminal Court (ICC) made more than 100 recommendations to more than 60 States in relation to the ICC the majority of recommendations were regarding ratification of the Rome Statute. In advance of the 2nd cycle of the UPR (which started with the 13 th session taking place from 21 May-4 June 2012), the Coalition launched a focused campaign to encourage ICC States Parties to make ICC-related recommendations to other States coming under review, in particular on accession to/ratification of the Rome Statute and of the APIC as well as their implementation in national legislations (if relevant). SUGGESTED RECOMMENDATIONS TO THE STATES UNDER REVIEW AT THE 20 TH SESSION OF THE UNIVERSAL PERIODIC REVIEW (UPR) (WORKING GROUP: JANUARY 2015) 1 The information and recommendations suggested below for the States under review cover the following elements: (a) Accession to/ratification of the Rome Statute, (b) Accession to/ratification of the Agreement on Privileges and Immunities of the Court (APIC), and (c) The full alignment of national legislations with both agreements. No recommendations are suggested for the States under review that have already undertaken such steps. (Countries listed in alphabetical order) ARMENIA Armenia signed the Rome Statute on 1 October 1999 but has not ratified it. Armenia has not signed or ratified the APIC. In August 2004, the Constitutional Court rendered a negative opinion on the compatibility of the Rome Statute with the constitution and concluded that ratification of the Rome Statute would require a constitutional amendment. The 2014 Commission for Constitutional Reform s draft strategy includes the issue of ratification of the Rome Statute by Armenia noting that the constitutional reforms must create the modalities for ratification. On the basis of the strategy, the Commission will draft specific constitutional amendments which will then have to be put to a referendum. 1 The information provided herein has been noted and compiled by the Coalition for the International Criminal Court either via public domain sources or via direct communications from States themselves. Errors and lacunae may thus be present. The Coalition welcomes any updates or corrections to the information provided herein. 1

2 The criminal code adopted in August 2003 includes definitions of crimes under the Rome Statute, with comprehensive legislation concerning war crimes (with no distinction between internal or international armed conflicts) in keeping with the Geneva Conventions and Additional Protocols, as well as a special chapter on Crimes against Peace and Human Security, detailing definitions of genocide, crimes against humanity, war crimes, as well as aggression. There is no specific legislation on cooperation with the ICC. During the 1 st cycle of the UPR, in 2010, Armenia accepted seven recommendations to ratify the Rome Statute (made by Austria, Brazil, Cyprus, Greece, Romania, and Uruguay) and implement it (UK). Armenia should ratify and fully align its national legislation with the Rome Statute of the International Criminal Court (ICC), including by incorporating provisions to cooperate promptly and fully with the International Criminal Court and to investigate GRENADA Grenada acceded to the Rome Statute on 19 May Grenada has not signed or ratified the APIC. There are no known efforts regarding the alignment of national legislation with the Rome Statute or accession to the APIC. Grenada should fully align its national legislation with the Rome Statute of the GUINEA 2 Guinea ratified the Rome Statute on 14 July Guinea signed the APIC on 1 April 2004 but has not ratified it. In March 2004, a joint workshop between the government and civil society led to the circulation of a draft bill on implementation. The draft bill covered provisions to cooperate promptly and fully with the ICC and to investigate and prosecute genocide, crimes against humanity and war crimes effectively before its national courts, (complementarity provisions). Political instability is hampering any progress on a draft law. There are no further known efforts regarding the full alignment of national legislation with the Rome Statute. 2 On 14 October 2009, the ICC Office of the Prosecutor (OTP) announced that it has taken due note of serious allegations surrounding the events of 28 September 2009 in Conakry and has received information relating to these events in accordance with article 15 of the Rome Statute. A preliminary examination of the situation has been immediately initiated in order to determine whether crimes falling under the Court s jurisdiction have been perpetrated. 2

3 During the 1 st cycle of the UPR, in 2010, Guinea accepted the following recommendation Noting the possible crimes against humanity, including sexual violence against women and girls, committed during the events starting on 28 September 2009, and recognizing that Guinea has ratified the Rome Statute of the International Criminal Court, bring to justice those responsible for those violations and combat impunity for those events (made by Costa Rica). Guinea should fully align its national legislation with the Rome Statute of the national courts, and ratify the Agreement on Privileges and Immunities of the Court GUINEA-BISSAU Guinea-Bissau signed the Rome Statute on 12 September 2000 but has not ratified it. Guinea-Bissau has not signed or ratified the APIC. Despite the signature of the Rome Statute in 2000, a constitutional amendment will be necessary before ratification can be completed. The 1993 penal code includes a section on international crimes which covers war crimes, crimes against humanity, and genocide but it does not fully align with the provisions of Rome Statute. There are no known efforts regarding the accession to or full alignment of national legislation with the Rome Statute. During the 1 st cycle of the UPR, in 2010, Guinea accepted one recommendation to ratify the Rome Statute (made by Brazil). Guinea-Bissau should ratify and fully align its national legislation with the Rome Statute of the International Criminal Court (ICC), including by incorporating provisions to cooperate promptly and fully with the International Criminal Court and to investigate GUYANA Guyana ratified the Rome Statute on 24 September Guyana ratified the APIC on 16 November There are no further known efforts regarding the full alignment of national legislation with the Rome Statute. Guyana should fully align its national legislation with the Rome Statute of the national courts. 3

4 KENYA 3 Kenya ratified the Rome Statute on 15 March Kenya has not signed or ratified the APIC. The International Crimes Act was adopted by the Kenyan parliament on 12 December In the International Crimes Act, the crimes of genocide, crimes against humanity, and war crimes are criminalized, and Article 6 formally adopts the definitions of the ICC statute on these crimes as well. Article 7 adopts the principles of international law provided by the Rome Statute. This includes the exclusion of the applicability of statute of limitation on ICC crimes (Article 29), and the commander s responsibility (Article 28). The Act also includes provisions on cooperation with the Court. During the 1 st cycle of the UPR, in 2010, Kenya accepted seven recommendations to cooperate with the ICC (made by Australia, Republic of Korea, Norway, and Portugal), and protect witnesses (made by Austria, Finland) and human rights defenders (made by Ireland). Kenya also gave a general response to one recommendation to Cooperate fully with the ICC investigation, in accordance with Kenya s obligations under the Rome Statute, and establish a credible local tribunal in parallel (made by the UK). Kenya should accede to the Agreement on Privileges and Immunities of the Court KIRIBATI Kiribati has not signed or ratified the Rome Statute. Kiribati has not signed or ratified the APIC. The Cabinet of Kiribati is currently considering accession to the Rome Statute and has committed to aligning national legislation with the Rome Statute afterwards. During the 1 st cycle of the UPR, in 2010, Kiribati rejected two recommendations to accede to the Rome Statute (made by Canada and France) and explained that This is not feasible in light of the existing national capacity and resource constraints. Kiribati should accede to and fully align its national legislation with the Rome Statute of the International Criminal Court (ICC), including by incorporating provisions to cooperate promptly and fully with the International Criminal Court and to investigate 3 The situation in Kenya is the ICC s fifth investigation. In March 2010, Pre-Trial Chamber (PTC) II authorized the ICC prosecutor to open an investigation into crimes against humanity allegedly committed in Kenya in relation to violence that followed Kenya s 2007 presidential election. 4

5 KUWAIT Kuwait signed the Rome Statute on 8 September 2000 but has not ratified it. Kuwait has not signed or ratified the APIC. There has been no progress since 2000 due to concerns of incompatibility of the Rome Statute with the Kuwaiti Constitution. While a ratification proposal was drafted in 2007, no further progress has been made in this regard. Kuwait has since expressed its intention to ratify the Rome Statute at several sessions of the ICC-Assembly of States Parties (ASP) and at the Review Conference of the Rome Statute (held in 2010, in Kampala, Uganda). The National Committee for International Humanitarian Law has sought the approval of a draft national law on crimes that fall within the jurisdiction of the ICC, based on the Model Arab Law. In 2011, the draft was referred to the legislation review committee of the Ministry of Justice, as a prelude to its submission to the Minister of Justice, followed by the Council of Ministers and to the National Assembly. There is no further information regarding the full alignment of national legislation with the Rome Statute. During the 1 st cycle of the UPR, in 2010, Kuwait did not respond to three recommendations to accede to the Rome Statute (made by Austria and Chile) and to the APIC (made by Slovakia). Kuwait should ratify and fully align its national legislation with the Rome Statute of the KYRGYZSTAN Kyrgyzstan signed the Rome Statute on 8 December 1998 but has not ratified it. Kyrgyzstan has not signed or ratified the APIC. The criminal code includes a chapter on Crimes against the peace and security of mankind which includes definitions of genocide, war crimes, crimes against humanity, and aggression. However these are not in full alignment with the Rome Statute. There are no further known efforts regarding the accession to and full alignment of national legislation with the Rome Statute. During the 1 st cycle of the UPR, in 2010, Kyrgyzstan gave a general response to four recommendations to ratify the Rome Statute (made by Austria, Brazil and Uruguay) and to accede to the APIC (made by Slovakia) and noted that these recommendations could only be considered after the parliamentary elections. Kyrgyzstan should ratify and fully align its national legislation with the Rome Statute of the International Criminal Court (ICC), including by incorporating provisions to cooperate promptly and fully with the International Criminal Court and to investigate 5

6 LAO PEOPLE'S DEMOCRATIC REPUBLIC (PDR) Lao (PDR) has not signed or ratified the Rome Statute. Lao (PDR) has not signed or ratified the APIC. In early 2005, the Lao government initiated a project aimed at studying and promoting ratification and implementation of the Rome Statute. In February 2010, the Ministry of Foreign Affairs organized a Regional Workshop on the ICC aimed at preparing the Lao government for ratification and implementation of the Rome Statute. Despite Lao representatives attendance at ICC- ASP sessions, officials have expressed the view that Lao PDR needs more time to increase and develop their capacity to exercise their obligations to cooperate with the Court as a state party. There are no further known efforts regarding the accession to and full alignment of national legislation with the Rome Statute. During the 1 st cycle of the UPR, in 2010, Lao (PDR) accepted three recommendations to accede to the Rome Statute (made by Canada, France and Luxembourg). Lao (PDR) should accede to and fully align its national legislation with the Rome Statute of the International Criminal Court (ICC), including by incorporating provisions to cooperate promptly and fully with the International Criminal Court and to investigate LESOTHO Lesotho ratified the Rome Statute on 6 September Lesotho ratified the APIC on 16 September There are no known efforts regarding the accession to and full alignment of national legislation with the Rome Statute. Lesotho should fully align its national legislation with the Rome Statute of the national courts. SPAIN Spain ratified the Rome Statute on 24 October Spain ratified the APIC on 24 September The criminal code of 2003 already included some of the crimes under the Rome Statute, such as some definitions of crimes against humanity and some elements of war crimes. The criminal code also already contained a definition of genocide in keeping with Article II of the 1948 Convention and therefore with the Rome Statute definition as well. In June 2010, the Spanish Parliament approved further amendments to the Criminal Code to bring the definitions of crimes in better alignment with those in the Rome Statute. The code does not contain any provisions covering the crime of aggression. 6

7 The ICC Cooperation Act was enacted in December 2003 and covers arrest and surrender of suspects, enforcement of sentences, as well as competing requests. On 25 September 2014, Spain ratified the Kampala Amendments to the Rome Statute 4. In the framework of this campaign, no recommendations are suggested for Spain. SWEDEN Sweden ratified the Rome Statute on 28 June Sweden ratified the APIC on 13 January The Act on criminal responsibility for genocide, crimes against humanity and war crimes entered into force on 1 July It introduced definitions of crimes against humanity into national legislation and amended existing legislation on war crimes and genocide. The Act also removed any statute of limitations for genocide, war crimes, crimes against humanity; provided for command responsibility; and authorized Swedish courts to adjudicate cases concerning these crimes regardless of where they have been committed or by whom thus providing Sweden with universal jurisdiction. It also provided clearer guidelines on the definition of war crimes, and introduces a new provision in the penal code on the crime of genocide that better adheres to the UN Genocide Convention. The Act on cooperation with the ICC adopted on 25 April 2002 covers all forms of cooperation as set forth in Part 9 of the Rome Statute, such as arrest and surrender of suspects and offenses against the administration of justice by the ICC, as well as enforcement of sentences and fines, forfeiture and reparation decisions. During the 1 st cycle of the UPR, in 2010, Sweden accepted one recommendation to fully align its legislation with the Rome Statute (made by Canada). In the framework of this campaign, no recommendations are suggested for Sweden. TURKEY Turkey has not signed or ratified the Rome Statute. Turkey has not signed or ratified the APIC. In May 2004, Article 38 of the Constitution was amended to clarify the distinction between extradition of nationals to a foreign country and surrender to the ICC and to pave the way for accession to the Rome Statute. The 3rd National Program of Turkey for the Adoption of the European Union (EU) Acquis of 2008, lists the Rome Statute as one of the international treaties that Turkey should ratify and cites Turkey s ongoing efforts to complete the necessary work for its accession. At the Review Conference of the Rome Statute (held in 2010, in Kampala, Uganda), the head of Turkey s delegation stated that, While additional progress is required in further aligning our legislation more closely before we can finally accede to the Statute, especially with respect to war crimes and the crime of aggression, Turkey remains committed to the goal of accession as declared by Prime Minister Erdoğan in The Turkish Criminal Code includes incomplete definitions of crimes against humanity and genocide, but not war crimes. War crimes are covered in the Military Penal Code and only 4 Amendments to the Rome Statute adopted at the Review conference held in Kampala, Uganda, in 2010 related to the prohibition of the use of certain weapons in a non-international armed conflict, and to the crime of aggression. 7

8 limited to a number of crimes and only applicable to international armed conflicts. There is no law on cooperation with the ICC. During the 1 st cycle of the UPR, in 2010, Turkey accepted three recommendations to consider acceding to the Rome Statute (made by Brazil, Chile, and Uruguay) and rejected 5 one recommendation to swiftly accede to the Rome Statute (made by Cyprus). Turkey should accede to and fully align its national legislation with the Rome Statute of the International Criminal Court (ICC), including by incorporating provisions to cooperate promptly and fully with the International Criminal Court and to investigate 5 Turkey noted that this recommendation did not enjoy the support of Turkey, as Turkey does neither recognize Republic of Cyprus nor accept its claims to represent the whole island. 8

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