Tuesday, June 12, 2012

The ICC at the UPR

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post

The year 2012 marks the 10th Anniversary of the entry into force of the Rome Statute. Around the world, numerous events are being held to commemorate this landmark and to evaluate the challenges faced by the International Criminal Court (ICC). One central challenge is that states parties are primarily responsible for investigating and prosecuting the core crimes under international law and for ensuring the surrender of suspects. In order to become fully functional, the ICC system needs effective preventative structures and the elimination of safe havens for perpetrators.  This requires, at least, the universal ratification and implementation of the Statute.
Against these goals and challenges, this post assesses the opportunities offered by the Universal Periodic Review (UPR or Review) process at the UN Human Rights Council. Although the Assembly of States Parties to the Rome Statute (ASP) annually calls its members to promote ratifications, it offers no formal process to engage states not parties in an open, substantive and non-politicised manner. Instead, ratification strategies are implemented mainly thanks to the EU and its members, who contribute politically, diplomatically and financially to this goal by, inter alia, supporting local organizations working under the umbrella of the Coalition for the ICC and global networks such as Parliamentarians for Global Action. (see previous IntLawGrrls post here)  Additionally, EU delegations and EU Embassies, as well as the Presidents both of the ICC and of the ASP engage in diplomatic dialogue through a system of periodic demarches at the country level.
ICC and ASP presidents
The UPR process, created by UN General Assembly Resolution 60/251, offers an interactive dialogue based on objective information geared towards concrete recommendations. The UPR may fill the gap as a universal forum and facilitate the work of actors already engaged in ratification of the Statute.
The relevance of the Rome Statute to the UPR was already explored during the first cycle of the newly established UPR (2008-2011). Thirty-two states parties to the Rome Statute issued more than 160 recommendations relating to the ICC, including to 62 states not parties to the Rome Statute who were asked to join the ICC. The 2nd cycle of the Review (2012-2016), will allow for follow-up on recommendations for ratification accepted but not yet implemented by 18 states, reiteration of recommendations to 38 states that did not accept them and, above all, recommendations of ratification of the Rome Statute to the 22 states that have not yet received such a recommendation.
Building on this, the aforementioned actors including Amnesty International who are involved in ratification and implementation efforts launched coordinated advocacy efforts to ensure that all the tasks in the basic “ICC to do list”–ratification of the Statute and of the Agreement of Privileges and Immunities of the Court (APIC), domestic incorporation of ICC crimes and general principles of law and the adoption of mechanisms of cooperation with the ICC–are addressed throughout the Review at the 2nd cycle.

Morocco's Minister of Justice
The results of the 13th session of the UPR Working Group (the first session of the 2nd cycle), which ended June 4, evidence the effectiveness of such increased coordination.  Each of the 5 states not parties under review received recommendations to ratify the Statute.  This contrasts with the first review when only Indonesia and Morocco received a recommendation, which the latter rejected.  Increased efforts must be devoted now at the national level to ensure that Algeria, Bahrain and India also provide a positive response to the new recommendation.

Whether these recommendations can actually contribute to the ratification of the Statute depends on the specific cases. The responses given at the UPR may merely reflect, rather than create, dispositions towards the Rome Statute. During the 1st cycle, this was the case with ratifications by the Czech Republic, Chile, Grenada, Guatemala and Maldives, following an accepted recommendation. It is also the situation of states like China, Myanmar, Nicaragua, Sudan, Syria, and Zimbabwe that did not surprise anybody in rejecting the recommendations. However, UPR responses are particularly useful to monitor the disposition of less vocal states; they also offer additional legal and political bases to advance ratification in countries that have accepted the recommendations. Above all, concretely, the process of national consultation to respond to a given recommendation may position ICC-related objectives in foreign policy or justice agendas.
Yet, with less than half of the states parties having implemented the Statute domestically and with 51 states parties pending to ratify or accede to the APIC, the very significant contribution of the UPR ICC mainstreaming will be in relation to the domestic implementation of the Statute.
To promote implementation the ASP relies on its Plan of Action, a voluntary procedure of self-reporting, which, regrettably, is not systematized or much discussed. Implementation is often neglected elsewhere also. For instance, during the 1st cycle of UPR, implementation was not prioritized and only 6 states parties (Democratic Republic of Congo, Paraguay, Sierra Leone, Sweden, Tanzania, Timor Leste) received and accepted recommendations to implement the Statute.
But thanks to the coordinated efforts of civil society with Council members, at the recently concluded 13th session the scope of ICC recommendations has expanded. States not parties were also called upon to implement the Rome Statute and to accede to the APIC. More importantly four states parties (Brazil, Ecuador, Philippines and Tunisia), received recommendations to implement the Statute crimes, to adopt measures of cooperation with the Court and, where applicable, to ratify the APIC.
The UPR offers numerous further opportunities to deal with existing legal obligations as evidenced by the recommendations made during the 1st cycle on the execution of pending arrest warrants issued by the ICC. During the 2nd cycle, states committed to the entry into force of the Kampala amendments will most likely seize the opportunity to issue related recommendations, as Liechtenstein did with Ecuador and Philippines in the 13th session.
The added value of the review process is that it keeps states parties to the ICC engaged, thereby giving concrete meaning to the commitment to fighting impunity. The future establishment of the Group of Friends of the ICC in Geneva will also aid in African and Asian states joining in the ratification efforts. European and Latin American states are the top recommending states at the UPR (Brazil was the top ‘ICC recommending state’ during the 1st cycle). Yet, in the coming two years, states parties sitting at the Council such as Bangladesh, Botswana, Burkina Faso, Djibouti, Republic of Korea, Maldives, Timor Leste or Uganda could take the lead in the global fight against impunity through the UPR.
For the ICC system, the ritualism (a term coined by IntlLawGrrl Hilary Charlesworth) offered by the UPR can make a positive impact.  Ultimately however, the main challenge to the UPR’s second cycle is ensuring adequate follow-up to accepted recommendations.
For the ICC this means continuing critical efforts at the national level geared towards building a global system of preventative and reparative international criminal justice.

Many thanks to the current and past staff of PGA’s International Law and Human Rights Programme who have contributed to the monitoring of UPR : Alba I. Leon, Laëtitia Garat, Ivar Scheers and Maia Trujillo.

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