Mainstreaming support for the ICC in the EU's policies.
Date: 2014-04-02
Institutions: Directorate-General for External Policies of the Union
Subjects: Africa, EU Member State, European Union, International Criminal Court, human rights, independence of the judiciary, international criminal law, judicial cooperation in criminal matters in the EU, the EU's international role

DIRECTORATE-GENERAL FOR EXTERNAL POLICIES

OF THE UNION

DIRECTORATE B

POLICY DEPARTMENT

STUDY

MAINSTREAMING SUPPORT FOR THE ICC IN THE EU'S
POLICIES

Abstract

The European Union and its Member States have been the staunchest supporters of the ICC system
of  international  criminal  justice  in  the  last  two  decades.  That  system  is  now  at  a  critical  juncture.
With  a  view  to  the  future,  it  is  necessary  to  examine  how  the  ICC  can  overcome  the  current
challenges and build upon its successes to date. And more specifically, how the EU and its Member
States can, and should, help the ICC  in this respect. By critically assessing  the EU’s performance to
date in mainstreaming support for the ICC throughout its policies and activities, this study addresses
these questions.

EXPO/B/DROI/2013/28

PE 433.844

March 2014

EN

Policy Department DG External Policies

This study was requested by the European Parliament's Subcommittee on Human Rights.

AUTHOR:

Olympia BEKOU, Professor  of  Public  International  Law,  School  of  Law,  and  Head,  International  Criminal
Justice Unit, Human Rights Law Centre, University of Nottingham, UNITED KINGDOM

With the assistance of: Hemi MISTRY, Doctoral Candidate, University of Nottingham, UNITED KINGDOM

ADMINISTRATOR RESPONSIBLE:

Wanda TROSZCZYNSKA - VAN GENDEREN
Directorate-General for External Policies of the Union
Policy Department
WIB 06 M 093
rue Wiertz 60
B-1047 Brussels

Editorial Assistant: Pia VANNESTE

LINGUISTIC VERSION

Original: EN

ABOUT THE EDITOR

Editorial closing date: 24 March 2014.
© European Union, 2014
Printed in Belgium

ISBN: 978-92-823-5570-1
Doi: 10.2861/58562

The Information Note is available on the Internet at
http://www.europarl.europa.eu/activities/committees/studies.do?language=EN

If you are unable to download the information you require, please request a paper copy
by e-mail : poldep-expo@europarl.europa.eu

DISCLAIMER

Any  opinions  expressed  in  this  document  are  the  sole  responsibility  of  the  author  and  do  not  necessarily
represent the official position of the European Parliament.

Reproduction  and  translation,  except  for  commercial  purposes,  are  authorised,  provided  the  source  is
acknowledged and provided the publisher is given prior notice and supplied with a copy of the publication.

ii

TABLE OF CONTENTS

Mainstreaming Support for the ICC in the EU’s Policies

LIST OF ABBREVIATIONS..................................................................................................................VI
EXECUTIVE SUMMARY....................................................................................................................... 8
PART ONE: THE EU AND THE ICC – FRAMING THE ISSUES .................................................11
INTRODUCTION...................................................................................................................11
1.
METHODOLOGY .................................................................................................................12
2.
THE ROME STATUTE SYSTEM OF INTERNATIONAL CRIMINAL JUSTICE..........13
3.
The International Criminal Court...........................................................................................................................13

3.1

3.2

The Principle of Complementarity – The ICC System of International Criminal Justice ..................14

4.

THE EUROPEAN UNION AND THE ICC SYSTEM OF INTERNATIONAL
CRIMINAL JUSTICE .............................................................................................................16
The Evolution of the EU’s Framework to Support the ICC System ...........................................................16

4.1

4.2

4.3

Current Framework.....................................................................................................................................................18

Institutional Mainstreaming – the Players and their Coordination..........................................................19

Council .............................................................................................................................................................................19
4.3.1
COJUR-ICC ......................................................................................................................................................................19
4.3.2
GENVAL............................................................................................................................................................................20
4.3.3
Parliament ......................................................................................................................................................................20
4.3.4
Commission ...................................................................................................................................................................21
4.3.5
Genocide Network Secretariat ...............................................................................................................................21
4.3.6
EU Focal Point ...............................................................................................................................................................21
4.3.7
EEAS and EU Delegations .........................................................................................................................................21
4.3.8
EUSRs and the High Representative.....................................................................................................................22
4.3.9
The European Instrument for Democracy and Human Rights (‘EIDHR’) ................................................22
4.3.10
4.3.11
Instrument for Stability..............................................................................................................................................22
EXPLANATION OF APPROACH.......................................................................................23
5.
PART TWO: UNPACKING THE EU’S POLICIES ON THE ICC...................................................25
UNIVERSALITY......................................................................................................................25
6.
General Discussion......................................................................................................................................................25

6.1

6.1.1
6.1.2
6.1.3

6.2

6.3

6.3.1
6.3.2
6.3.3

6.4

Universality of the ICC System................................................................................................................................25
Universality of the Court ...........................................................................................................................................26
The  Kampala  Amendments:  Expanding  the  Scope  of  War  Crimes  and  the  Crime  of
Aggression......................................................................................................................................................................27
Member States..............................................................................................................................................................28

The EU as a Global Actor ...........................................................................................................................................30

Political ............................................................................................................................................................................31
Financial ..........................................................................................................................................................................37
Technical .........................................................................................................................................................................38
Recommendations......................................................................................................................................................40

6.4.1
6.4.2

Member States..............................................................................................................................................................40
EU.......................................................................................................................................................................................40

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Policy Department DG External Policies

7.

INTEGRITY..............................................................................................................................41
General Discussion......................................................................................................................................................41

7.1

8.

9.

7.2

7.3

7.3.1
7.3.2

7.4

Member States..............................................................................................................................................................42

The EU as a Global Actor ...........................................................................................................................................43

Political ............................................................................................................................................................................43
Financial ..........................................................................................................................................................................47
Recommendations......................................................................................................................................................47

Member States..............................................................................................................................................................47
7.4.1
7.4.2
EU.......................................................................................................................................................................................47
INDEPENDENCE, AND EFFICIENCY AND EFFECTIVENESS....................................47
General Discussion......................................................................................................................................................47

8.1

8.1.1
8.1.2

8.2

8.3

8.3.1
8.3.2

8.4

Independence...............................................................................................................................................................47
Effectiveness and Efficiency.....................................................................................................................................49
Member States..............................................................................................................................................................50

The EU as a Global Actor ...........................................................................................................................................51

Political ............................................................................................................................................................................51
Financial ..........................................................................................................................................................................52
Recommendations......................................................................................................................................................53

Member States..............................................................................................................................................................53
8.4.1
8.4.2
EU.......................................................................................................................................................................................53
COOPERATION.....................................................................................................................53
General discussion ......................................................................................................................................................53

9.1

9.2

Member States..............................................................................................................................................................55

9.2.1
9.2.2

9.3

9.3.1
9.3.2
9.3.3

9.4

Cooperation between EU Member States and the ICC.................................................................................55
Cooperation between EU Member States .........................................................................................................57
The EU as a Global Actor ...........................................................................................................................................63

Political ............................................................................................................................................................................63
Financial ..........................................................................................................................................................................65
Technical .........................................................................................................................................................................65
Recommendations......................................................................................................................................................66

Member States..............................................................................................................................................................66
9.4.1
EU.......................................................................................................................................................................................67
9.4.2
COMPLEMENTARITY..........................................................................................................67
General discussion ......................................................................................................................................................67

10.1

10.

10.2

10.3

10.3.1
10.3.2
10.3.3

10.4

Member States..............................................................................................................................................................69

The EU as a Global Actor ...........................................................................................................................................70

Political ............................................................................................................................................................................70
Financial ..........................................................................................................................................................................71
Technical .........................................................................................................................................................................73
Recommendations......................................................................................................................................................75

Member States..............................................................................................................................................................75
10.4.1
10.4.2
EU.......................................................................................................................................................................................75
CONSOLIDATED FINDINGS.............................................................................................76

11.

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Mainstreaming Support for the ICC in the EU’s Policies

PART THREE: THE EU, AFRICA AND THE ICC – PROSPECTS AND CHALLENGES .........79
CASE STUDY: AFRICA AND THE ICC .............................................................................79
12.
The Al Bashir Arrest Warrant....................................................................................................................................81

12.1

12.2

The Kenyan Situation .................................................................................................................................................82

12.2.1
12.2.2
12.2.3
12.2.4

12.3

12.4

Political Attacks ............................................................................................................................................................82
Article 16: Security Council Deferral.....................................................................................................................85
Mediation Attempts: Special Segment at the ASP Meeting .......................................................................86
Direct Challenges to the Rome Statute: Amendments.................................................................................86
Ownership ......................................................................................................................................................................88

Recommendations for the EU and its Member States ..................................................................................90

13.
14.

CONCLUSION.......................................................................................................................90
LIST OF RECOMMENDATIONS .......................................................................................92
Universality.....................................................................................................................................................................92

14.1

14.1.1
14.1.2

14.2

14.2.1
14.2.2

14.3

14.3.1
14.3.2

14.4

14.4.1
14.4.2

14.5

14.5.1
14.5.2

14.6

Member States..............................................................................................................................................................92
EU.......................................................................................................................................................................................92
Integrity ...........................................................................................................................................................................93

Member States..............................................................................................................................................................93
EU.......................................................................................................................................................................................93
Independence, Effectiveness and Efficiency.....................................................................................................93

Member States..............................................................................................................................................................93
EU.......................................................................................................................................................................................93
Cooperation...................................................................................................................................................................93

Member States..............................................................................................................................................................93
EU.......................................................................................................................................................................................94
Complementarity.........................................................................................................................................................94

Member States..............................................................................................................................................................94
EU.......................................................................................................................................................................................94
Africa and the ICC ........................................................................................................................................................94

15.
16.

BIBLIOGRAPHY ....................................................................................................................96
MISCELLANEOUS............................................................................................................. 105

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Policy Department DG External Policies

LIST OF ABBREVIATIONS

ACP

AfCHPR

AFET

APIC

ASEAN

ASF

ASP

ASPA

AU

BIAs

CAR

CFSP

Africa, Caribbean and Pacific States

African Court of Peoples' and Human Rights

Committee on Foreign Affairs

Agreement on Privileges and Immunities

Association of South East Nations

Avocats Sans Frontières

Assembly of States Parties

American Servicemembers' Protection Act

African Union

Bilateral Immunity Agreements

Central African Republic

Common Foreign and Security Policy

CILRAP-CMN

Centre for International Law and Policy - Case Matrix Network

CJEU

Court of Justice of the European Union

COJUR-ICC

Comité Juridique-International Criminal Court

CSO

DRC

DROI

EAW

ECCC

EDF

EEAS

EIDHR

ENP

EP

EU

EUSRs

GENVAL

GRULAC

GSP(+)

ICC

ICJ

ICTJ

ICTR

ICTY

IfS

JHA

JURI

LIBE

MEPs

NGO

NPWJ

OTP

PGA

Civil Society Organisation

Democratic Republic of Congo

Sub-Committee on Human Rights

European Arrest Warrant

Extraordinary Chambers in the Courts of Cambodia

European Development Fund

European External Action Service

European Instrument for Democracy and Human Rights

European Neighbourhood Policy

European Parliament

European Union

European Union Special Representatives

Working Party on General Matters Including Evaluation

Latin American and Caribbean Group

Generalised Scheme of Preferences (+)

International Criminal Court

International Commission of Jurists

International Center for Transitional Justice

International Criminal Tribunal for Rwanda

International Criminal Tribunal for the former Yugoslavia

Instrument for Stability

Justice and Home Affairs

Legal Affairs Committee

Civil Liberties, Justice and Home Affairs Committee

Members of the European Parliament

Non-Governmental Organisation

No Peace Without Justice

Office of the Prosecutor

Parliamentarians for Global Action

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Mainstreaming Support for the ICC in the EU’s Policies

RPE

SCSL

STL

TEU

TFEU

UN

UNDP

VCLT

WEOG

Rules of Procedure and Evidence

Special Court for Sierra Leone

Special Tribunal for Lebanon

Treaty on European Union

Treaty on the Functioning of the European Union

United Nations

United Nations Development Programme

Vienna Convention on the Law of Treaties

Western Europe and Other Group

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Policy Department DG External Policies

EXECUTIVE SUMMARY

On  17  July  1998,  negotiations  were  concluded  on  the  Rome  Statute  of  the  International  Criminal  Court
(‘Rome  Statute’)(1),  the  instrument  that  established  the  first  permanent  International  Criminal  Court  (‘ICC’,
‘the  Court’)  with  jurisdiction  over  genocide,  crimes  against  humanity  and  war  crimes.  With  this,  came  the
establishment  of  a  system  of  international  criminal  accountability  with  the  ICC  standing  firm  at  its  centre.
The Court became operational on the 1st of July 2002 and the Statute currently numbers 122 State Parties to
it,  with  all  European  Union  (EU)  Member  States  having  ratified  it.  Eight  situations  are  currently  under
investigation by the Court, all of which hail from the African continent.

The European Union and its  Member States have been the staunchest supporters of  international criminal
justice in the last two decades. The ICC system is now at a critical juncture; looking to the future, how can the
ICC  overcome  the  current  challenges  it  faces  and  build  upon  its  successes  to  date?  And  more  specifically,
how  can,  and  should,  the  EU  help  the  ICC  in  this  respect?  To  answer  these  questions,  this  study  critically
assesses the EU’s performance to date in mainstreaming support for the ICC throughout its policies and the
measures taken to implement those policies. By assessing the EU’s performance across the full spectrum of
its  policies,  this  study  identifies  gaps  and  overlaps  in  those  policies  that  may  reduce  the  capacity  of  the
Union  to  attain  the  full  potential  of  effectiveness  when  supporting  the  ICC.  Based  upon  an  assessment  of
where  the  EU  has  been  successful,  and  where  there 
improve,  this  study  provides
recommendations  as  to  concrete  policies  and  measures  that  the  EU  can  take  in  order  to  continue  and
enhance its support to the ICC in aid of the Court’s needs and interests and the system that it represents.

is  room  to 

In  2011,  the  Council  adopted  Decision  2011/168/CFSP  (‘the  2011  Decision’)  that  establishes  the  current
framework for EU support for the ICC. It identifies five objectives through the pursuit of which the EU and its
Member  States  can  promote  universal  support  for  the  Statute.  These  are:  to  promote  the  widest  possible
participation  in  the  Statute  (universality);  to  preserve  the  integrity  of  the  Statute;  to  support  the
independence of the ICC and its effective and efficient functioning; to support cooperation with the ICC; and
to support the implementation of the principle of complementarity.

Further  to  this,  the  main  substantive  innovation  of  the  2011  Decision  comes  in  the  form  of  Article  8.  This
commits the EU to ensuring that there is consistency and coherence between all its instruments and policies
in  matters  that  concern  the  crimes  within  the  ICC’s  jurisdiction.  Crucially,  when  doing  so,  the  Decision
commits the EU to ensuring that such consistency and coherence exists not only in its external action, but
also  in  respect  to  its  internal  activities.  Each  of  the  five  objectives  are  of  equal  concern  to  all  actors  that
support  the  ICC – whether they  are  states  or  international  institutions.  It  is  for  this  reason  that  the  2011
Decision is directed at both the EU and its Member States. Moreover, it is an acknowledgement that, because
of  its  very  nature,  the  EU  in  many  respects  has  to  act through its  Member  States – as  State  Parties  to  the
Rome Statute, acting in their own competences.

However, this study demonstrates that in practice the implementation of the 2011 Decision does not equally
engage  both  the  internal  and  external  dimensions  at  all  times.  Largely,  this  is  down  to  the  constitutional
architecture of the Union. However, for effective mainstreaming, emphasis should be placed on those areas
that have been under-utilised and areas of  policy  that have been under-developed. Although some of  the
most  prominent  areas  of  success  in  the  EU’s  policies  have  been  in  the  external  dimension  of  the  Union’s
action, attention should also be directed to identifying those internal areas that would be suitable for further
development in order to enhance consistency and coherency in the implementation of the EU’s policies.

The measures undertaken by the EU to promote the universality of the Rome Statute have been particularly
successful.  Measures  to  encourage  Member  States,  candidate  states  for  accession  to  the  Union,  and  third
states to ratify the Rome Statute, have been an effective and visible way in which the EU has demonstrated

1 Rome  Statute  of  the  International  Criminal  Court  (adopted  17.07.1998,  entered  into force  1  July  200)  2187  UNTS  3
(hereafter ‘Rome Statute’).

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Mainstreaming Support for the ICC in the EU’s Policies

its commitment to the Rome Statute system of international justice. This success can be built upon by first,
further enhancing the consistency with which the ICC is placed on the agenda in the course of interactions
with third states. Second, to further develop initiatives that encourage the full implementation of the Statute
within national legal orders once the Statute has been ratified – both within Member States as well as third
states. Third, by ensuring that EU initiatives are visible and prominent as well as widely disseminated, action
by  local,  regional  and  international  actors  can  be  catalysed  in  order  to  entrench  and  enhance  the  goals
pursued by the EU.

Whereas  the  promotion  of  the  integrity,  independence,  effectiveness  and  efficiency  lies  primarily  with  the
ICC, some of the EU’s measures have been influential and engagement should continue.

The  main  finding  of  this  study  is  that  with  the  institution  building  process  complete,  and  the  ICC  fully
functional, it is time to consider whether a shift in the EU’s attention is needed. The EU support of the ICC is
now needed in order to ensure that the Court can work effectively and meaningfully or else it will become ‘a
very  expensive  experiment’.  Whilst  undeniably,  the  political  support  ought  to  remain  strong,  placing
increased emphasis upon assisting the Court in the performance of its everyday operations as well as filling
the  gaps  inherent  in  the  Rome  system  of  justice,  would  be  where  the  EU  can leave  its  greatest  mark.
Focusing therefore on technical and financial assistance is the way forward.

Looking  to  the  future,  the  success  with  which  the  EU  and  its  Member  States  pursue  the  two  objectives  of
enhancing cooperation and implementing the principle of complementarity will determine their continuing
role  as  the  foremost  supporter  of  the  Court.  While  the  provision  of  continued  and  consistent  political
support remains necessary, focus must turn to technical and financial forms of assistance.

The study has affirmed that both the EU and its Member States have a significant role to play in regards to
enhancing cooperation with the ICC. Member States can continue to enhance cooperation with each other
and with the Court in order to efficiently discharge their obligations as State Parties to the Statute. From the
EU’s perspective, using its political standing as a global actor, it can play an important role in responding to
instances of non-cooperation with the Court by third states. Existing examples of effective EU responses to
non-cooperation have been the consistent statements by the EU High Representative in response to failure
by  State  Parties  to  the  Statute  to  comply  with  their  obligations  under  the  Rome  Statute  to  execute  arrest
warrants issued by the Court against individuals. In addition, the technical support that the EU can offer in
order to enhance cooperation with the Court can provide tangible outcomes, for example in the context of
witness protection and asset freezing. Similarly, without the EU’s financial support of initiatives to promote
cooperation, the ICC would have been in a much worse position.

Perhaps the area where the EU can make its greatest contribution yet is that of the implementation of the
principle  of  complementarity,  in  particular,  positive  complementarity.  The  recent  adoption  of  the
Complementarity  Toolkit  is  therefore  of  paramount  importance.  Besides  demonstrating  a  strong  political
commitment,  it  is  the  funding  that  is  made  available  to  implement  positive  complementarity  that  has  a
transformative effect. However, the technical assistance that the Member States and the EU could provide in
that respect remains insufficient at present.

Whilst  acknowledging  that  the  implementation  of  the  2011  Action  Plan  that operationalizes the 2011
Decision involves a step-by-step process, it would be important to identify and prioritise those aspects of the
Action Plan that have not been implemented fully to date. In order to do this, each of the main players might
consider the following suggestions:

Given that presidency of the COJUR-ICC rotates bi-annually with the Presidency of the Council, there is the
potential  that  different  priorities  may  be  pursued,  affecting  continuity.  Consideration  should  therefore  be
given  to  the  possibility  of  making  technical  and  bilateral  assistance  a  standing  item  on  the  COJUR-ICC’s
agenda, in addition to the particular priorities of a given Presidency. Related to this, the EU Focal Point and
the EU Network of Focal Points (envisaged by the 2011 Action Plan but not yet fully implemented) is likely
to  play  an important  role  in  the  delivery  of  such  technical  and  financial  assistance.  To  this  effect,
consideration should be given to strengthening the EU Focal Point through the provision of extra support
to  enable  it  to  fulfil  its  mandate  effectively  and  efficiently.  Furthermore,  updating  the  list  of  experts

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Policy Department DG External Policies

managed  by  the  Focal  Point  would  bring  cross-cutting  benefits  to  the  implementation  of  the  EU’s  policy
objectives.

In  order  to  enhance  the  ability  of  EU  Member  States  to  cooperate  with  the  Court,  strengthening of  the
Genocide Network should be considered. In particular, GENVAL and other competent institutions should
further explore the possibility of widening the list of crimes falling within the competence of the EU under
Article  83(1)  (Treaty  on  the  Functioning  of  the  European  Union  (TFEU))  to  include  the  core  international
crimes  as  defined  in  the  Rome  Statute.  This  would  increase  the  effectiveness  of  the  measures  to  ensure
internal  consistency  in  the  full  implementation  of  the  Statute.  Further,  it  would  enable  the  EU  to  adopt
additional  measures  to  cooperate  directly  with  the  Court.  GENVAL  should  consider  the  formulation  of  an
Action Plan and Task Force to increase the efficiency in combating impunity within the EU.

In order to build upon the EU’s success in the promotion of the universality of the Statute, the EEAS and EU
Delegations should  ensure that  there  is  consistency  in  the  way  that  the  ICC  is  incorporated  into  the  fight
against  impunity  in  all  actions  in  relation  to  third  states,  including  but  not  limited  to,  ICC  clauses  and
demarches. Full use should also be made of the local knowledge and resources of EU delegations. Building
upon this, the Parliament should continue to provide political support across all areas, and to make better
use of the standing committee structure and individual MEPs who can take a leading role in adopting a more
hands on promotion of universality.

Finally,  the Commission should  continue  to  keep  under  review  the  degree  to  which  the  ICC  and
international  justice  related  issues  are  mainstreamed  across  the  different  instruments  and  to  monitor  the
successful implementation of the 2011 Decision.

The final part of this study turned to consider contemporary challenges facing the ICC – in the form of the
current tensions between certain African states and the ICC - and focused on what role there might be for
the  EU  and  its  Member  States  in  supporting  the  ICC  to  meet  those  challenges.  It  identified  that  although
some  work  towards  defusing  the  Africa-ICC  tension  has  been  undertaken,  (e.g.  amendment  of  the  ICC’s
Rules of Procedure and Evidence) the issue giving rise to these tensions is the Court’s proceedings against
sitting  heads  of  state.  Observing  that  the  primary  European  actors  in  this  context  should  be EU  Member
States – as  State  Parties  to  the  Rome  Statute – this  study  concluded  that  the  key  priority  should  be  to
continue  to  pursue  open  and  constructive  dialogue  with  all  partners  in  the  African  region,  while  in  the
course of doing so, ensuring that the integrity of the Statute is preserved.

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Mainstreaming Support for the ICC in the EU’s Policies

PART ONE: THE EU AND THE ICC – FRAMING THE ISSUES

1.

INTRODUCTION

On 17 July 1998, when delegates at the Rome Conference concluded the negotiations on the Rome Statute,
the instrument that they adopted did not ‘merely’ establish the first permanent International Criminal Court
with  jurisdiction  over  genocide,  crimes  against  humanity  and  war  crimes  (the  ‘core  international  crimes’).
Rather, what was agreed upon, whether fully appreciated at the time, was the establishment of a system of
international criminal accountability, with the ICC standing firm at its centre.

In  the  intervening  years  since  the  Rome  Statute’s  entry  into  force  in  July  2002,  the  ICC  has  become  a
prominent institution on the international legal and political landscape – a focal point for the fight against
impunity. By ratifying  the Rome Statute, states express  their shared commitment  to the hopes, values and
principles embodied in the Statute’s eleven preambular paragraphs – a shared commitment to international
justice and accountability, the rule of law and respect for human rights.

Few at the Rome Conference could have envisaged the impact of the ICC on the international landscape in
such  a  short  period  of  time;  proceedings  are  under  way  against  a  sitting  head  of  state  and  his  deputy.
Another now has to rearrange his travel plans in order to avoid his arrest and surrender to the Hague-based
Court, where a former head of state is currently held in custody. Calls by states and by non-state actors and
organisations for referrals to be made by the UN Security Council of situations to the ICC are now a familiar
tool  in  the  diplomatic  toolbox  for  responding  to  mass  atrocities(2).  Discussion  regarding  international
criminal justice, and the ICC, is no longer confined to the specialist journals and among a relatively small –
but committed – group of international criminal justice experts.

All  this  is  despite  the  fact  that  out  of  the  eight  situations  currently  under  investigation  by  the  Court,  only
three judgments have been delivered, with a third due to be made in early March 2014. All eight situations
currently on the Court’s docket hail from the African continent, 12 arrest warrants are still outstanding(3) and
high-profile  cases  against  heads  of  state  are  being  suspended(4).  The  ICC  faces  almost  a  daily  barrage  of
attacks against its legitimacy – claims of bias and selectivity are accompanied by threats of non-cooperation
and collective withdrawal from the Rome Statute system(5).

The European Union and its  Member States have been the staunchest supporters of  international criminal
justice in the last two decades. Their support for the two ad hoc Tribunals established in the 1990s by the UN
Security  Council  in  response  to  the  atrocities  committed  in  the  course  of  the  breakdown  of  the  former
Yugoslavia  and  the  genocide  in  Rwanda  has  been  instrumental  to  their  success(6).  With  regard  to  the
support  for  the  establishment  of  the  ICC,  the  drafting  and  conclusion  of  its  Statute,  and  its  becoming
operational, once more, the EU has stood at the forefront of those developments. The ICC system is now at a
critical juncture; looking to the future, how can the ICC overcome the current challenges and build upon the
successes to date? The ICC is established as the permanent international criminal court – that much is clear.
The question is however, how to make that institution effective? And more specifically, how can, and should,
the  EU  and  its  Member  States – as  historically  one  of  international  justice’s  strongest  and  staunchest

2 UNOHCHR, 13.02.2013; Deutsche Welle, 8.09.2013; Federal Authorities of the Swiss Federation, 14.01.2013.
3 Individuals at large are Sylvestre Mudacumura, Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, Ahmad
Harun, Ali Muhammed Ali Abd-Al-Rahman, Omar Hassan Ahmad Al Bashir, Abdel Raheem Muhammed Hussein, Simone
Gbagbo, Charles Blé Goude, Walter Osapiri Barasa.
4 Prosecutor  v  Uhuru  Muigai  Kenyatta,  Notification  of  the  removal  of  a  witness  from  the  Prosecution’s  witness  list  and
application for an adjournment of the provisional trial date, 19.12.2013 (ICC-01/09-02/11-875).
5 See Part Three, section 12.
6 UNSC Res. 827 (UN Doc S/RES/827 (1993)) adopted 25 May 1993; UNSC Res. 955 (UN Doc S/RES/955 (1994)) adopted
8.05.1994.

11

Policy Department DG External Policies

supporters - help the ICC in this respect? How can, and should, the EU continue its support to the ICC system
in the most effective manner?

This study answers these questions. This is achieved through a critical assessment of the EU’s performance to
date in mainstreaming support for the ICC throughout its policies and activities. Mainstreaming requires that
consideration of ICC and international criminal justice related matters is integrated into all areas of decision
making and policy development within the EU. This is in order to ensure that the EU’s approach towards the
ICC system of international criminal justice is consistent, coherent and coordinated in order to maximise its
effectiveness.  By  assessing  the  EU’s  performance  when  implementing  its  policies  in  support  for  the  ICC
across the full spectrum of its activities, this study identifies gaps and overlaps in the measures adopted that
may reduce the capacity of the Union to attain the full potential of effectiveness. Based upon an assessment
of  where  the  EU  has  been  successful,  and  where  there  is  room  to  improve,  this  study  provides
recommendations  as  to  concrete  policies  and  measures  that  the  EU  can  take  according  to  the  needs  and
interests of the ICC and the system that it represents.

2.

METHODOLOGY

The  main  research  method  employed for  the  completion  of  this  study  has  been  desktop  research.  This
involved sourcing all relevant primary and secondary documents emanating from the EU, the ICC and other
international and regional organisations as well as reports by Non-Governmental Organisations (NGOs) and
academic articles. Once sourced, documents were classified and analysed according to themes. The themes
were  chosen  to  reflect  the  main  priority  areas  of  the  ICC  in  conjunction  with  areas  where  action  has  been
undertaken  by  the  EU.  The  emerging  issues  were  assessed  also  in  light  of  whether  they  relate  to  Member
States or the EU as a global actor (see explanation of approach in section 5). Although every effort has been
taken  to  be  as  comprehensive  as  possible,  the  study  does  not  claim  to have  included  every  document
pertaining to each aspect of EU policy. Rather, the approach chosen, guided by the key areas identified both
at  the  ICC  as  well  as  at  the  EU  level,  has  sought  to  analyse  in  depth  the  principal  instruments  and  their
application. Other  primary  and  secondary  sources  were  also  utilised  to  provide  the  necessary  background
information  in  aid  of  in-depth  analysis  of  certain  key  areas.  Once  analysed,  appropriate  recommendations
have been produced which shall aid the EU in mainstreaming its support of the ICC.

The research for the study has been supplemented by 15 qualitative telephone interviews as well as over 20
informal face to face discussions with legal practitioners from the ICC, State Parties and Non-State Parties to
the Rome Statute, the EU and global, regional and local NGOs. The purpose of conducting interviews was to
gain  a  personal  insight,  or  insider  perspective,  into  the  issues  at  hand.  A  key  issue  when  conducting
qualitative interviews is sampling. As the subject-matter for which opinions are sought is highly specialised,
the method of ‘elite interviewing’ was chosen(7). Participants were selected on an ad hoc basis and recruited
through existing contacts within the wider international criminal justice community. The focus was to obtain
a sample that would be representative of a number of different viewpoints. Semi-structured interviews were
conducted.  These  were  thought  to  be  preferable  to  fully  structured  interviews  for  the  purposes  of  elite
interviewing, because they allowed the participants the flexibility to fully articulate their answers and draw
attention to issues that they considered to be relevant to the discussion. All participants were sent a consent
form to be filled and returned in advance of the interview and a brief FAQ document outlining the purpose
of the study and what would be covered in the interview. In order to encourage the most honest responses
possible,  participants  were  told  that  information  provided  at  the  interview  would  remain  strictly
anonymous. Moreover,  all  participants  were  asked  whether  they  would  object  to  having  the  interview
recorded.  If  they  agreed,  special  software  provided  for  by  the  University  of  Nottingham  was  used,  which
enabled the recording and facilitated the transcription. In terms of privacy and confidentiality, participants
were informed that data, such as audio recordings (if applicable), consent forms, transcripts, and interview

7 Richards, 1996; Dexter, 1970; Ostrander, 1993. McDowell, 1998; for an overview see Berry, 2002.

12

Mainstreaming Support for the ICC in the EU’s Policies

notes will be kept for a maximum of 48 months from the date of the interview. The information will be kept
in  a  secure  environment  according  to  data  protection  guidelines(8).  Compliance  with  the  University  of
Nottingham’s  Code  of  Conduct  on  data  storage  as  well  as  the  School  of  Law’s  ethics  checklist  was
guaranteed.

In  order  to  guarantee  the  anonymity  of  all  interview  participants,  some  of  who  may  be  identifiable  if  an
institutional affiliation is provided, only generic organisational affiliations have been disclosed in the study.
However,  details  of  all  interviews  (notes,  and  where  appropriate,  transcripts  and  audio  files)  have  been
appropriately coded and filed and can be verified by the author upon request, subject to the requirements
of  confidentiality.  The  study  also  benefitted  from  more  informal  interactions  with  ICC,  State  and  NGO
representatives present at the 12th Session of the Assembly of States Parties (ASP), which took place in the
Hague,  from  the 20th-28th of November 2013. Numerous informal discussions  and attendance of relevant
side events sponsored by states and NGOs in the course of the ASP, contributed to refining the content of
the study. Of particular value were interactions with regard to the ICC-Africa debate which dominated this
year’s ASP session.

The study was completed in the period between late-November 2013 – late-February 2014.

3.

THE  ROME  STATUTE  SYSTEM  OF  INTERNATIONAL CRIMINAL
JUSTICE

3.1

The International Criminal Court

The  ICC  is  a  permanent  treaty-based  international  institution  established  by  the  Rome  Statute  which  was
adopted  on  17  July  1998.  Sixty  days  after  the  60th ratification  of  the  Statute,  on  1  July  2002,  the  Statute
entered  into  force,  establishing  a  permanent  international  criminal  court  with  jurisdiction  over  genocide,
crimes  against  humanity,  war  crimes  (the  ‘core  international  crimes’,  ‘core  crimes’),  and  foreseeing  the
possibility  of  future  jurisdiction  over  the  crime  of  aggression.  The  Court’s  mandate  is  to  investigate  and
prosecute  ‘the  most  serious  crimes  of  international  concern’  and  to  hold  to  account  those  found  to  be
individually criminally responsible.

To date, 122 states have ratified the Rome Statute, becoming State Parties to the Court. Of these:







34 are African;
18 are from the Asia-Pacific;
18 are Eastern European;
27 are from Latin America and the Caribbean;
25 are Western European and Other(9).

While  the  Rome  Statute  only  binds  states  that  have  accepted  its  jurisdiction  through  its  ratification,  the
Court holds jurisdiction over both the territory and the nationals of state parties. In doing so, it opens up the
possibility  that  it  could  investigate  situations  that  involve  the  nationals  of  non-State  Parties  (where  that
impugned conduct occurred upon the territory of a State Party) or situations that occurred on the territory of
non-State Parties (but which involved nationals of State Parties). While existing independently of the United
Nations (‘UN’) Charter regime, under Article 13(b) of the Rome Statute, the Court is able to accept referrals of
situations  by  the  UN  Security  Council  acting  under  its  Chapter  VII  powers.  In  this  scenario,  the  Security

8 Regulation (EC) No45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of
individuals  with  regard  to  the processing  of  personal  data  by the Community  institutions  and bodies  and  on  the  free
movement of such data, OJ L8, 12.1.2001, at p.1.
9 For a list of ratifications, see UN Treaty Series (Rome Statute), see
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en .

13

Policy Department DG External Policies

Council has the capacity to  refer situations  to the Court for investigation  involving also states  that  are not
party to the Statute.

In addition to opening investigations on the basis of referrals of situations made by the UN Security Council
or  by  States  Parties(10),  the  most  striking  manifestation  of  the  Prosecutor’s  independence,  is  the  ability  to
open  an  investigation proprio  motu,  that  is  on  her  own  initiative  based  upon  information  received
suggesting that crimes within the Court’s jurisdiction have occurred(11).

The  ICC  is  currently  conducting  investigations  into  eight  country  situations.  The  investigations  into
situations in the Democratic Republic of Congo (‘DRC’), Uganda, the Central African Republic (‘CAR’) and Mali
are  all  situations  referred  to  the  Court  by  the  situation  state  itself(12).  In  contrast,  two  situations  under
investigation by the Court have been opened using the Prosecutor’s proprio motu powers – those of Kenya
and Côte d’Ivoire. The remaining situations, concerning Libya and Sudan, both states not being states party
to the Rome Statute, are investigations pursuant to a referral to the Court by the UN Security Council under
its Chapter VII power.

3.2

The Principle of Complementarity – The ICC System of International Criminal Justice

Central to the Rome Statute system of international criminal justice is the principle of complementarity. As
Article  17  of  the  Rome  Statute  stipulates,  situations  and  cases  before  the  Court  are  only  admissible  when
states  with  concurrent  jurisdiction  over  the situation  are  unwilling  or  unable  genuinely  to  conduct
investigations  into  and  prosecution  of  suspected  international  crimes  within  the  Court’s  jurisdiction.
Accordingly, the ICC is conceived as a ‘court of last resort’, activated only when national proceedings are not
forthcoming. Thus, the competence of the ICC is not meant to displace national authorities. By only granting
the  ICC  the  ability  to  exercise  its  jurisdiction  in  the  residuary  of  situations  where  states  have  failed,  the
primary responsibility to attain those objectives must lie with states. Therefore, on the face of it, the principle
of  complementarity  might  appear  to  be  a  simple  acknowledgement  of  the  primacy  of  the  state  and  the
respect for state sovereignty. Observing and applying the principle of complementarity ensures that the ICC
does  not  overstep  the  boundaries  of  its  competence  negotiated  by  the  drafters  of  the  Rome  Statute  and
consented to by ratification. However, the implications of the principle of complementarity are much more
complex.

From a systemic perspective, by locating the primary responsibility for the investigation and prosecution of
international  crimes  as  existing  in  the  hands  of  states,  the  principle  of  complementarity  strengthens  the
norm of international criminal justice by developing a ‘culture of accountability’(13). It is commonplace to talk
of the catalytic effect by which the principle of complementarity operates. Indeed, the first Prosecutor of the
ICC stated in 2003 that a  measure of the ICC’s success would be the lack of proceedings before  the Court.
This  is not because no international crimes are being committed, but rather  because states are complying
fully with their duties to conduct effective investigations and prosecutions(14). States, in order to avoid being
subject to investigation by the ICC, and suffering the political and diplomatic disrepute that might thereby
arise, may initiate their own investigations and prosecutions into the impugned situations in order to bar the
Court from exercising its jurisdiction over the case.

10 Article 13(b) and Article 14 Rome Statute.
11 Article 15 Rome Statute.
12 ICC-OTP, Press Release 19.04.2004; ICC-OTP, Press Release 29 January 2004; ICC-OTP, Press Release 7.01.2005; ICC-OTP,
13.07.2012. However, at the time of writing, the Office of the Prosecutor announced the intention to open a preliminary
investigation  into  the  ongoing  conflict  in  the  Central  African  Republic  and  in  light  of  the  reports  of  atrocities  being
committed in the course thereof. This preliminary investigation is unrelated to the existing situation referred by the CAR
authorities in 2004 (ICC, Press Release 7.02.2014).
13 ICC-OTP, ‘Report on Prosecutorial Strategy’, 14.09.2006, at p.4.
14 Statement  made  by  Luis  Moreno-Ocampo,  Chief  Prosecutor,  Ceremony  for  the  solemn  undertaking  of  the  Chief
Prosecutor of the International Criminal Court, 16.06.2004, The Hague.

14

Mainstreaming Support for the ICC in the EU’s Policies

From  a  domestic  perspective,  the  internalisation  of  the  responsibility  to  investigate  and  prosecute  crimes
under international law can contribute to the process of strengthening, if not building, a domestic culture of
justice and the rule of law. It is a reality that international crimes are committed in the context of systematic
and systemic violence where there has been a partial or complete breakdown of law and order. The process
of  ensuring  criminal  accountability  for  serious  and  mass violations  of  human  rights  can  play  an  important
role in the process of transitional justice. Ultimately concerned with the facilitation of the process of societal
reconciliation,  transitional  justice  denotes  the  various  policies  and  strategies  adopted  by societies  in
transition  to  address  gross  human  rights  violations  that  occurred  in  the  course  of  periods  of  conflict,
authoritarianism or other forms of violence and social unrest.

In  many  cases,  societies  will  lack  the  capacity – resources,  infrastructure  and  manpower – to  respond  to
situations  of  potential  mass  criminality.  State  law  enforcement  agencies  and  judicial  authorities  may  not
have  the  technical  expertise  necessary  to  conduct  large  scale  complex  criminal  investigations,  potentially
also involving a high number of both victims and perpetrators. The size of the investigations and volume of
evidence can be overwhelming for even the most well-resourced justice systems. But  quite aside from the
legal  and  factual  complexity  of  international  criminal  investigations  are  the  practical  elements – war  torn
countries or regions  may lack the  basic physical infrastructure necessary for a functioning justice system –
courtrooms, detention centres and prisons. Further, societies transitioning out of periods of authoritarianism
and internecine violence may lack trust in the very justice and security institutions that would be responsible
for  delivering  criminal  accountability  given  the  role  that  those  institutions  can  often  play  in  maintaining
authoritarian regimes and in systematic violence.

However,  where  the  situation  is  appropriate,  it  is  important  to  encourage  local  ownership  over  criminal
justice  for  atrocities  in  order  to  strengthen  the  contribution  that  international  criminal  justice  can  play  to
societal reconciliation. The proceedings of international judicial institutions of international criminal justice –
the ICC, the two ad hoc tribunals for the former Yugoslavia and Rwanda, and even the proceedings of hybrid
institutions such as the Special Court for Sierra Leone (‘SCSL’) and the Special Tribunal for Lebanon (‘STL’) are
geographically and temporally remote from the societies that experienced and were victim to the impugned
violence. By encouraging local justice rather than international justice – complementarity assists in making
the process of justice visible, so that it is both done and seen to be done by those directly affected by the
wrongdoing.

From a practical perspective, it is important to acknowledge the limitations to the ICC’s capacity. Given the
impossibility  for  the  Court  to  shoulder  responsibility  for  the  investigation  and  prosecution  of every act  of
core 
international  criminality,  by  encouraging  states  to  step  up  to  their  duty,  the  principle  of
complementarity  alleviates  the  pressures  upon the  ICC  as  an  institution  of  finite  resources  and  capacity.
Therefore,  the  principle  of  complementarity  operates  to  reduce  the  ‘impunity  gap’,  both  between  the
situations that are subject to investigation by the ICC and those that are not, and between those individuals
who are prosecuted by the Court and those perpetrators who are not(15).

The principle of complementarity, by engaging both national authorities and the Court in the pursuit of the
objectives of universal accountability, helps  to manage the workload of the Court. Further,  where national
judicial systems have the capacity to conduct effective investigations and prosecutions and there exists the
political  will  to  enable  those  proceedings  to  take  place  and  to  do  so  in  accordance  with  the  rule  of  law,
national  proceedings,  particularly  those  undertaken  by  the  situation-state,  are  likely  to  be  more  efficient
with  a  greater  chance  of  success.  For  example,  national  authorities  have  easier  and  more  direct  access  to
evidence and witnesses and do not face the logistical challenges faced by the ICC or by third states that are
not only geographically more remote, but which rely on the full cooperation of the situation state to access

15 Report of the Bureau on Stocktaking: Complementarity’ (ICC-ASP/8/51) 18.03.2010 at para.3 (hereafter ‘Report of the
Bureau on Stocktaking: Complementarity’).

15

Policy Department DG External Policies

that  evidence  and  those  witnesses(16).  However,  the  importance  of  national  proceedings  is  not  just
concerned  with  domestic  proceedings  by  situation  states.  By  incorporating  the  definitions  of  the  core
international  crimes  into  domestic  law  in  order  to  grant  national  courts  jurisdiction  over  those  crimes,  the
courts of all states can be engaged in the implementation of complementarity.

Accordingly, while it is understandable to focus upon the establishment and functioning ICC as institutional
milestones  in  the  pursuit  of  accountability  for  the  core  international  crimes,  wherever  committed  and
perpetrated  by  whomever,  the  ICC  is  a  symbol  of  a  much  wider  system  of  accountability.  Properly
understood,  the  success  of  the  ICC  as  but  one  tool  in  the  fight  against  impunity  is  dependent  on  the
strength and success of the wider system within which is operates. Therefore, to be an effective supporter of
the ICC requires a full commitment to the entire system of justice that the Court envisages.

4.

THE  EUROPEAN  UNION  AND  THE 
INTERNATIONAL CRIMINAL JUSTICE

ICC  SYSTEM  OF

Since  the  reorientation  of  the  global  political  landscape  following  the  end  of  the  Cold  War,  the  EU  has
become  an  increasingly  prominent  actor  in  international  affairs.  One  area  in  which  it  has  dominated
throughout  this  period  has  been  the  development  of  a  nascent  system  of  international  criminal  justice.
Many of the values that underpin the institutions of international criminal justice - fighting impunity and the
pursuit  of  justice,  respect  for  human  rights,  consolidation  of  the  rule  of  law,  and  preserving  and
strengthening  international  peace  and  security - are  commitments  that  lie  at  the  heart  of  the  European
Project  and  are  shared  by  the  Union’s  Member  States(17).  As  the  EU  sought  to  foster  a  stronger  European
identity, its support for the institutions of international criminal justice – first the ad hoc tribunals established
by the UN Security Council in 1993(18) and 1994(19), and later the ICC – has played an important role in the
recognition  of  the  EU  as  a  global  actor,  by  third  states,  non-state  actors,  other  international  organisations
and  institutions,  and  even  among  the  EU  Member  States  themselves(20).  In  sum,  as  it  has  been  eloquently
observed,  for  the  EU,  ‘itself  a  hybrid  of  an  emerging  polity  and  an  international  organization,  the
development of the ICC as an issue of foreign policy has enhanced its role as an international actor in its own
right’(21).

4.1

The Evolution of the EU’s Framework to Support the ICC System

In anticipation of the Rome Statute’s entry into force, in 2001 the EU declared its commitment to the fight
against impunity by virtue of Common Position 2001/443/CFSP(22), which established the basic blueprint for
the  framework  governing  EU-ICC  relations.  Such  Common  Positions  adopted  by  the  Council  declare  the
Union’s  policy  on  a  particular  theme.  Focusing  upon  early  entry  into  force  of  the  Rome  Statute,  the  first
priority established by the 2001 Common Position was to promote the matter of ratification in its relations
with  third parties, and by assisting them  in  the  implementation of the Statute in domestic law (for further
elaboration, see Part Two, section 6).

16 See ICC-OTP, ‘Paper on some policy issues before the Office of the Prosecutor’, September 2003, at p.4. Other reasons
that suggest that local proceedings are more favourable to the remoteness of international proceedings are discussed at
Bergsmo M., Bekou O. and Jones A., 2011 at p.800.
17 From the perspective of the EU, see Articles 2 and 3, Consolidated Version of the Treaty on European Union [2010] OJ C
83/13 (hereafter, TEU).
18 UNSC Res 827 (25.05.1993) UN Doc S/RES/827.
19 UNSC Res 955 (8.05.1994) UN Doc S/RES/955.
20 See Groenleer M. and Riiks D, 2009 at p.179.
21 Groenleer M. and Riiks D., 2009 at p.168.
22 Council Common  Position  2001/443/CFSP  of  11.06.2001  on  the  International  Criminal  Court,  OJ  L  155,  12.6.2001, at
p.19 (hereafter ‘Council Common Position 2001/443/CFSP’).

16

Mainstreaming Support for the ICC in the EU’s Policies

By 2003, having been amended in 2002 (upon the Statute’s entry into force)(23) and again in 2003(24), the EU
Common  Position  on  the  ICC  had  developed  into  a  more  comprehensive  policy  framework  for  EU  and
Member State action. Continuing to focus upon universal ratification (primarily among third states) and the
implementation of the Rome Statute by Member States as State Parties to the Statute, the Common Position
included  measures  to  promote  the  integrity  of  the  Statute - to  protect  the  fragile  new  system  for
international accountability from actions that could undermine its raison d’être.

Accompanying the Common Positions were Action Plans, the first adopted in 2002, pursuant to the call by
the European Parliament for the adoption of a ‘concrete plan of action’ in order to ‘promote the ratification
of the Rome Statute legislation by the largest possible number of States’(25). In 2004, a revised Action Plan
was  adopted  based  upon  the  strengthened  provisions  of  the  2003  Common  Position(26).  This  Plan  was
‘focused on the initial period of the effective functioning of the ICC’ and concentrated upon three issues: 1)
coordination  of  EU  activities,  2)  universality  and  integrity  of  the  Rome  Statute  and  3)  independence  and
effective functioning of the ICC(27). This formed the principal basis for the EU’s engagement with ICC related
matters until 2011. The emphasis  was squarely upon supporting the  Court in establishing and securing  its
jurisdiction within the international order.

By 2010 the Court was established and operational, and attention – both at the ICC and in the EU - shifted to
making the Court effective. At the first Review Conference of the Rome Statute of the International Criminal
Court, held in Kampala, Uganda, (‘Kampala Review  Conference’) in 2010, State Parties to the Rome Statute
took the opportunity to engage in a stocktaking exercise, to reflect upon the successes of the Court and the
challenges it faced following the first years of its operation(28). Reflection focused around four themes, each
having  a  direct  bearing  on  the  Court’s  effective  pursuit  of  its  mandate.  Those  four  priorities  were
complementarity, cooperation, victims and affected communities and peace and justice(29). As was observed
by the representative of Spain, speaking on  behalf of the European Union,  these four  priorities underlined
the role of the ICC as part of a system of international criminal justice and the functions it serves therein(30).
Those functions are to fight impunity, to serve as a catalyst of international criminal justice, and further, to
prevent  and  deter  the  commission  of  international  crimes(31).  The  EU  and  its  Member  States,  to  highlight
their continuing commitment to the ICC and its mission, issued a pledge to:






Continue to promote the universality and preserve the integrity of the Rome Statute;
Emphasise  the  fight  against  impunity  as  a  core  value  in  the  course  of  entering  into  agreements  with
third states;
Provide financial support to the ICC, civil society and third country partners;

23 Council  Common  Position  2002/474/CFSP  of  20.06.2002  amending  Common  Position  2001/443/CFSP,  OJ  L  164,
22.6.2002, at p.1 (hereafter ‘Council Common Position 2002/474/CFSP’).
24 Council Common Position 2003/444/CFSP of 16 June 2003 on the International Criminal Court OJ L 150, 18.6.2003, at p.
67 (hereafter ‘Council Common Position 2003/444/CFSP’).
25 European  Parliament  resolution  of  28.02.2002  on  entry  into  force  of  the  Statute  of  the International  Criminal  Court
(P5_TA(2002)0082) OJ C 293, 28.11.2002, at p. E/88, at para.5.
26 Council of the European Union, Action plan to follow up on the Common Position on the International Criminal Court,
2004 (hereafter ‘Action Plan, 2004’).
27 Action Plan, 2004, at p.1.
28 Opening remarks by the President of the Assembly, Ambassador Christian Wenaweser, 30.05.2010, Kampala (Uganda).
29 Opening remarks by the President of the Assembly, Ambassador Christian Wenaweser, 30.05.2010, Kampala (Uganda).
30 Declaración  realizada  en  nombre  de  la  Unión  Europea  por  la  Excma.  Sra.  Dña.  María  Jesús  Figa  López-Palop
Subsecretaria de Asuntos Exteriores y de Cooperación del Reino de España en el debate general de la Conferencia de
Revisión del Estatuto de Roma de la Corte Penal Internacional, 30.05.2010, Kampala (Uganda).
31 Declaración  realizada  en  nombre  de  la  Unión  Europea  por  la  Excma.  Sra.  Dña.  María  Jesús  Figa  López-Palop
Subsecretaria de Asuntos Exteriores y de Cooperación del Reino de España en el debate general de la Conferencia de
Revisión del Estatuto de Roma de la Corte Penal Internacional, 30.05.2010, Kampala (Uganda).

17

Policy Department DG External Policies



And update and review the EU instruments in support of the outcomes of the Review Conference(32).

In 2011, the Council adopted Decision 2011/168/CFSP (‘the 2011 Decision’) implementing the commitments
made  in  Kampala.  Along  with  the  Action  Plan  adopted  in  order  to  execute  the  Decision  (the  ‘2011  Action
Plan’)(33), these documents form the principal basis of the EU’s current framework for engagement with the
ICC system of international criminal justice.

4.2

Current Framework

While  the  2011  Decision  shares the  same  overall  aim  as  the  previous  Common  Positions  adopted  by  the
Council – to advance universal support for  the Rome Statute(34) - the 2011 Decision identifies with  greater
precision  how  the  EU  should  pursue  that  aim  through  its  activities.  The  2011  Decision  identifies  five
objectives through the pursuit of which the EU and is Member States can promote universal support for the
Statute(35). These are:







To promote the widest possible participation in the statute (universality);
To preserve the integrity of the statute;
To support the independence of the ICC and its effective and efficient functioning;
To support cooperation with the ICC;
To support the implementation of the principle of complementarity.

Throughout the course of Part Two, it will become apparent that the EU has been undertaking activities with
the aim, and intended effect, of pursuing each one of those five objectives since the outset of institutional
support  for  the  ICC  system  in  2001.  The  objectives  of  effectiveness,  independence  and  cooperation  all
explicitly  feature  in  the  EU’s  previous  strategies  for  its  support  for  the  ICC(36).  Even  the  objectives  of
‘integrity’,  ‘efficient  functioning’,  and  ‘complementarity’,  which  may  be  considered  ‘new’  can  be  seen  as
having been pursued through policies adopted by the Council prior to the adoption of the 2011 Decision.

The main substantive innovation of the 2011 Decision comes in the form of Article 8. This commits the EU to
ensuring that there is consistency and coherence between all its instruments and all its policies in matters
that  concern  the  international  crimes  with  the  ICC’s  jurisdiction(37).  Crucially,  when  doing  so,  the  Decision
commits the EU to ensuring that such consistency and coherence exists not only in its external action, but
also in respect to its internal measures(38).

Running alongside  the evolution  in the EU’s approach  to  the ICC  through its Common Positions and  most
recently,  the  2011  Decision,  the  EU  and  its  Member  States  have  adopted  a  number  of  initiatives  that  are
designed to, or can be used to, assist Member States discharge their responsibilities within the Rome Statute
system for international criminal justice. Council Decision 2002/494/JHA provided for the establishment of a
network  of  national  contact  points  for  the  exchange of  information  concerning  the  investigation  and
prosecution of  genocide, crimes against humanity and  war crimes (‘the Genocide Network’)  including, but

32 Declaración  realizada  en  nombre  de  la  Unión  Europea  por  la  Excma.  Sra.  Dña.  María  Jesús  Figa  López-Palop
Subsecretaria de Asuntos Exteriores y de Cooperación del Reino de España en el debate general de la Conferencia de
Revisión del Estatuto de Roma de la Corte Penal Internacional, 30.05.2010, Kampala (Uganda).
33 Council of the European Union, Action Plan to follow-up on the Decision on the International Criminal Court, Brussels,
12.07.2011 (12080/11) (hereafter Action Plan, 2011’).
34 Article 1(2) Council Decision 2011/168/CFSP of 21.03.2011 on the International Criminal Court and repealing Common
Position 2003/444/CFSP, OJ L 76, 22.3.2011, at p.56 (hereafter ‘Council Decision 2011/168/CFSP’).
35 Article 1(2) Council Decision 2011/168/CFSP.
36 Articles 1-5 Council Common Position 2003/444/CFSP.
37 Article 8 Council Decision 2011/168/CFSP.
38 Article 8 Council Decision 2011/168/CFSP.

18

Mainstreaming Support for the ICC in the EU’s Policies

not limited to, those crimes within the jurisdiction of the ICC(39). The Genocide Network, can be seen as a key
structure through which EU Member States can strengthen the system of international criminal justice and
accountability embodied in the Rome Statute. If used to its potential, it can enhance the effectiveness and
efficiency  of  action  taken  by  EU  Member  States  to  ensure  that  the  EU  area  is  not  a  safe  haven  for  those
responsible  for  international  crimes.  Accordingly,  by  the  Review  Conference  in  2010  and  through  the
commitments to which the EU had pledged itself, the EU had already established mechanisms that address
the new areas of priority identified in the course of the stocktaking exercise.

Having established the basic legislative framework through which the EU provides the ICC with support, the
following sub-section will introduce the structures involved in its implementation and their interaction.

4.3

Institutional Mainstreaming – the Players and their Coordination

Acting upon the recommendation in the 2011 Decision(40), the Council amended its Plan of Action in order
to  reflect  the  newly  defined  objectives  set  forth  in  the  2011  Decision.  It  also  provided  an  opportunity  to
update  the  Plan  in  light  of  the  institutional  reforms  introduced  by  the  Lisbon  Treaty  in  2010(41).  While
mainstreaming  requires  that  all  actors  within  an  institution  share  the  responsibility  to  ensure  that  support
for  the  ICC  is  implemented,  the  following  section  will  identify  the  principal  actors  responsible  for
mainstreaming support for the ICC in all areas of Union decision making.

4.3.1

Council

Through  its  different  configurations,  the  Council  of  the  European  Union  plays  an  important  role  in
establishing  the  EU’s  policy  agenda  in  terms  of  its  support  for  the  ICC  and  the  Rome  system  of  justice.
Sections 4.3.2. and 4.3.3. will discuss two of the main structures within the Council that are responsible for
the  development  of  EU  policy  on  ICC-related  matters.  However,  in  addition  to  establishing  policy,
statements made by the Presidency of the Council in support of the ICC and international criminal justice are
a  powerful  demonstration  of  the  EU’s  commitment  to  the  ICC  system  and  the  values  it  embodies.  They
constitute  a  principal  tool  through  which  the  EU  can  encourage  third  states  and  organisations  to  share  in
that  commitment  to  international  criminal  justice,  and  where  appropriate,  fulfil  their  obligations  to
cooperate with the ICC under the Rome Statute.

4.3.2

COJUR-ICC

COJUR-ICC, a sub-group within the COJUR working group of the Council is responsible for establishing the
common EU approach to matters concerning international criminal law from the perspective of the Council
in the context of the CFSP. Established in May 2002 in light of the increased workload in matters relating to
the ICC and international criminal law, COJUR-ICC, and before it, COJUR, are responsible for formulating the
Common  Positions  and  their  Action  Plans,  and  most  recently,  the  2011  Decision.  According  to  the  most
recent Action Plan in 2011, COJUR-ICC meets at least 4-5 times a year, in addition to once in preparation for
the annual ICC ASP(42). The sub-group coordinates approaches towards the ICC and related matters between
Member States, as well as coordinating initiatives with other Council Working Parties in order to mainstream
support  for  the  ICC  across  all  relevant  policy  activity.  Also  meeting  regularly  with  representatives  of  civil
society,  the  establishment  and  operation  of  the  COJUR-ICC,  comprised  of  ICC  and  international  criminal
justice  government-experts  of  EU  Member  States,  was  identified  by  one  interviewee  as  an  instance  of  EU
best practice that other regions could look to for an example of an effective structure to promote regional

39 Article 1 Council Decision 2002/494/JHA of 13.06.2002 setting up a European network of contact points in respect of
persons  responsible  for  genocide,  crimes  against  humanity  and  war crimes,  OJ  L  167,  26.6.2002,  at  p.1  (Hereafter,
‘Council Decision 2002/494/JHA’).
40 Council Decision 2011/168/CFSP, preambular paragraph 16.
41 Treaty  of  Lisbon  amending  the  Treaty  on  European  Union  and  the  Treaty  Establishing  the  European  Community,
signed as Lisbon, 13.12.2007, OJ C 306, 17.12.2007, at p.1 (hereafter ‘Lisbon Treaty’).
42 Action Plan, 2011, at p.3-4.

19

Policy Department DG External Policies

coordination  and  cooperation(43).  Accordingly,  the  COJUR-ICC  is  a  principal  actor  in  the  formulation  of  EU
policy in regard to the ICC and ICC related matters.

4.3.3

GENVAL

The  Working  Party  on  General  Matters  Including  Evaluation  (GENVAL)  is  the  Council  Working  Party
addressing  and  evaluating  EU  activities  within  the  area  of  police  and  judicial  cooperation  on  criminal
matters.  Accordingly,  the  functioning  of  the  genocide  network,  established  by  Council  Decision
2002/494/JHA falls within the remit of this working party.

4.3.4

Parliament

Through  its  resolutions,  the  European  Parliament  has  provided  much  of  the  political  impetus  behind  the
EU’s support for the ICC and international criminal justice. More broadly, the Parliamentary Committees – in
particular,  the  Committee  on  Foreign  Affairs  (‘AFET’)  and  the  sub-Committee  on  Human  Rights  (‘DROI’) –
consider and recommend legislative proposals concerning matters relating to international criminal justice
and  the  EU’s  support  for  the  ICC  which  are  then  put  to  the  plenary  for  consideration.  In  addition,  such
Committees prepare specialised reports into specific areas of EU policy, which often accompany proposals
for  resolutions(44).  In  order  to  mainstream  support  for  the  ICC  across  the  EU’s  policies,  it  is  necessary  to
mainstream  ICC  and  international  criminal  justice  related  issues  across  all  appropriate  Parliamentary
Committees. While support  for the ICC will primarily  fall within the mandate of the AFET and DROI,  where
appropriate ICC and international criminal justice related issues may also fall within the competence of other
Committees.  For  example,  these  might  include  Legal  Affairs  (‘JURI’)  and  Civil  Liberties,  Justice  and  Home
Affairs (‘LIBE’), in order to ensure the consistency of the mainstreaming of support for the ICC across both the
internal and external dimensions(45).

Individual  and  groups  of  Members  of  the  European  Parliament  (‘MEPs’)  also  play  an  important  role  in
advancing  and  demonstrating  the  EU’s  commitment  to  international  criminal  justice  and  the  ICC.  The
informal ‘Friends of the ICC’ group of MEPs adopts a particularly proactive role in advancing support for the
ICC, while individual MEPs have worked to promote cooperation with the Court in their capacity as European
Parliamentarians(46). These individual MEPs and groups of MEPs play an important role in building support
within  the  Parliament 
for  example  by  convening  meetings  between
Parliamentarians  and  external  experts  in  order  to  explore  the  options  that  particular  ICC  related  issues
raise(47).

for  particular 

initiatives, 

As  the  only  directly  elected  institution  of  the  EU,  the  demonstrated  commitment  to  international  criminal
justice and the values embodied in the Rome Statute by the European Parliament is a particularly powerful
statement of European commitment to the ICC.

43 Telephone interview #11 with former representative of global NGO with experience as a successful EIDHR applicant,
14.02.2014.
44 e.g.,  see  the European  Parliament  resolution  of  17.11.2011  on  EU  support  for  the  ICC:  facing  challenges  and
overcoming  difficulties  (P7_TA(2011)0507)  OJ  C  153,  31.5.  2012,  at  E/115  (hereafter,  ‘European  Parliament  resolution
P7_TA(2011)0507’) and  European Parliament, Report of the Committee on Foreign Affairs, ‘EU Support for the ICC: facing
challenges  and  overcoming  difficulties’  (A7-0368/2011),  20.10.2011  (  hereafter  ‘Report  of  the  Committee  on  Foreign
Affairs (A7-0368/2011’).
45 For more discussion on the importance of this consistency, see section 5).
46 e.g. Schaake, 2012.
47 e.g.  The meeting  convened  by Helmut  Scholz  MEP,  member  of  the  Parliamentarians  for  Global  Action  Group  in  the
European Parliament and member of the informal ‘Friends of the ICC’ group’ in November 2013, to discuss initiatives to
promote  wider  ratification  of  the  Kampala  Amendments  on  the  crime  of  aggression  (for  more  details,  see  Part  Two,
section 6.3.1.) See PGA, 28.11.2013.

20

Mainstreaming Support for the ICC in the EU’s Policies

4.3.5

Commission

According  to  the  2011  Action  Plan,  the  role  of  the  Commission  is  the  ‘financing  of  relevant  programmes
under the EU budget along the lines of the Decision’(48). As will become clear throughout the following Part,
the  EU  not  only  provides  direct  financial  assistance  to  the  Court,  but  also  provides  financial  assistance  to
NGOs and civil society organisations (CSOs) working either to promote and support the ICC system directly,
or that operate to build national capacity. Accordingly, the Commission plays an essential role in facilitating
EU financial and technical support to the ICC and the ICC system of international criminal justice. While it is
possible  for  the  Commission  to  support  the  ICC  through  a  number  of  different  financial  instruments,
sections 4.3.10. and 4.3.11. will examine the two most prominent.

4.3.6

Genocide Network Secretariat

Whereas COJUR-ICC (along  with the EU Focal Point, section 4.3.7.) is responsible for coordination between
Member States on international criminal justice issues in the framework of foreign or external relations, the
Genocide  Network  Secretariat  hosted  by  Eurojust  provides  coordination  and  support  between  Member
States with regard to the investigation and prosecution of international crimes by national authorities. The
Secretariat provides support to the European network of contact points in respect of persons responsible for
genocide,  crimes  against  humanity  and  war  crimes,  established  in  Council  Decision  2002/494/JHA  (for
further details, see Part Two, section 9.2.2.).

4.3.7

EU Focal Point

Established by the 2004 Plan of Action adopted pursuant to the 2003 Common Position, the EU Focal Point
was  mandated  to  ensure  the  efficient  co-ordination  and  consistency  of  information  and  to  prepare  EU
programmes  for  the  implementation  of  the  2003  Decision(49).  Created  jointly  by  the  General  Secretariat  of
the Council and the  Commission,  the EU  Focal Point is  the point of reference within the EU for all matters
relating to EU support for the ICC. Following the constitutional reforms introduced by the Lisbon Treaty, the
EU  Focal  Point  sits  within  the  European  External  Action  Service  and  is  responsible  for  coordinating  and
mainstreaming  international  criminal  justice  across  all  the  EU’s  external  action  policies  and  activities.
Accordingly, the Focal Point plays a critical role in ensuring the effectiveness of EU support for international
criminal  justice,  in  practice.  Working  with  COJUR-ICC,  the  EU  Focal  Point  shares  responsibility  for
coordinating between Member States on matters relating to international criminal justice in the context of
foreign or external affairs.

4.3.8

EEAS and EU Delegations

One of the main objectives of the legal and institutional reforms introduced by the Lisbon Treaty, including
the  creation  of  the  European  External  Action  Service  (‘EEAS’)  was  to  ‘bring  increased  consistency  to  our
external action’(50). Accordingly, the success with which the EU mainstreams support for the ICC system in its
activities  is  largely  determined  by  the  success  with  which  the  EEAS  has  implemented  the  EU’s  policies  on
international  criminal  justice  and  ICC  related  matters  in  the  course  of  their  activities  in  all  areas  of  the
common foreign and security policy (‘CFSP’).

The  2011  Action  Plan  provides  some  indication  as  to  the  responsibilities  of  the  EEAS  in  the  process  of
mainstreaming support for international criminal justice and the ICC in all areas of the EU’s external action –
not  only  in  the  context  of  thematic  and  regional  directorates,  but  also  crisis  management  structures  and
missions  under  the  common  security  and  defence  policy(51).  Examples  of  actions  to  be  undertaken  by  the
EEAS  include  the  inclusion  of  the  theme  of  ICC  and  international  criminal  justice  related issues  in  human
rights  strategies  and  country  strategies,  the  provision  of  relevant  training  to  EU  staff  and  Member  States

48 Action Plan, 2011, at p.6.
49 Action Plan, 2004, at p.2 and Annex.
50 Council of the European Union, Presidency Conclusions’, Brussels, 14.12.2007 (16616/07).
51 Action Plan, 2011, at p.6.

21

Policy Department DG External Policies

officials  and  to  make  experts  on  specific  relevant  international  criminal  justice  issues  available  to  EU
delegations(52). On the ground, in third states, EU delegations are required to monitor the cooperation with
the ICC by those states with obligations to do so under the Rome Statute – such as situation countries and
States Parties(53) and to provide direct support to the Court on the ground(54).

4.3.9

EUSRs and the High Representative

The regional and thematic EU Special Representatives, along with the High Representative play an essential
role in promoting and implementing  the EU’s commitment to international criminal justice at a high level.
Their ability to raise justice matters in the course of high level dialogues with third states and organisations
mean that they can play an important role in strengthening the impact of the EU’s political initiatives. Every
regional EUSR has an important role to play in promoting the universality of the Statute and the values that
it embodies, however specific Representatives, such as the Special Representative for the African Union, can
play  a  particularly  important  role  in  regions  where  the  ICC  is  particularly  active,  with  regard  to  assisting
partners  to  cooperate  with  the  Court  and  fulfil  their  responsibilities  within  the  system  of  international
criminal justice.

4.3.10

The European Instrument for Democracy and Human Rights (‘EIDHR’)

Replacing  the  European  Initiative  for  Democracy  and  Human  Rights  in  2007(55),  the  EIDHR  is  the  primary
financial instrument  through which  the EU contributes  to the strengthening of democracy, the rule of law
and the respect for human rights and fundamental freedoms within the framework of the Union’s external
relations.  In  terms  of  its  strategy  for  the  period  2011-2013,  support  for  the  ICC  and  international  criminal
justice  principally  falls  within  the  objective  of  ‘supporting  and  strengthening  international  and  regional
frameworks for the protection and promotion of human rights, justice, the rule of law and the promotion of
democracy’(56).  The  EIDHR  enables  the  EU  to  provide  financial  support  to  CSOs  engaged  in  activity  that  is
designed  to  strengthen  and  support  the  Rome  Statute  system  for  international  criminal  justice  at  the
grassroots level. The work that such organisations engage varies and include political initiatives to promote
the values, principles and objectives of international criminal justice and shared by the ICC - both within civil
society  but  also  among  political  decision  makers  at  the  national  or  regional  level.  The  other  umbrella  of
activities is technical support and capacity building that enables states and civil society to participate in the
system  of  international criminal  justice – either  by  strengthening  national  capacity  to  investigate  and
prosecute international crimes, or to cooperate with the ICC.

4.3.11

Instrument for Stability

The objective of the EIDHR is to develop, deepen, and strengthen commitment to – and the realisation of –
democracy and human rights, and as such takes a medium to long term view. In contrast, the Instrument for
Stability is a  more flexible instrument that  includes a capacity to respond to rapidly evolving situations(57).
Under Article 3(1) of the Instrument, the Union can provide technical and financial assistance ‘in response to
a situation of urgency, crisis, or emerging crisis, a situation posing a threat to democracy, law and order, the
protection  of  human  rights  and  fundamental  freedoms,  or  the  security  and  safety  of  individuals,  or  a
situation threatening to escalate into armed conflict or to severely destabilise the third country or countries
concerned’(58).  Envisaged  technical  and  financial  assistance  within  the  scope  of  this  mandate  includes
support  to  the  development  of  state  institutions  in  accordance  with  international  law,  the  rule  of  law  and

52 Action Plan, 2011, at p.6.
53 Action Plan, 2011, at p.6.
54 Telephone interview #10 with ICC official, 13.02.2014.
55 Regulation (EC) No 1998/2007 of the European Parliament and of the Council of 20.12.2006 on establishing a financial
instrument for the promotion of democracy and human rights worldwide, OJ L 386, 29.12.2006, at p.1.
56 European Instrument for Democracy and Human Rights (EIDHR) Strategy Paper 2011-2013, 21.04.2010 (C(2010)2432).
57 Regulation (EC) No 1717/2006 of the European Parliament and of the Council of 15.11.2006 establishing an Instrument
for Stability, OJ L 327, 24.11.2006 at p.1 (hereafter ‘Regulation (EC) No 1717/2006’).
58 Article 3(1), Regulation (EC) No 1717/2006.

22

Mainstreaming Support for the ICC in the EU’s Policies

good governance (including capacity building for law enforcement and judicial authorities)(59), support for
initiatives  to  promote  conflict  resolution,  mediation  and  dialogue,  and  also  ‘support  for  international
criminal tribunals and ad hoc national tribunals’(60).

Accordingly,  the  Instrument  for  Stability  is  an  important  and  flexible  tool  through  which  the  Union  can
provide  concrete  support  and  assistance  to  strengthen  the  immediate  effectiveness  of  the  ICC  system  of
international criminal justice in the short and medium term.

To reiterate, while all EU institutions and actors have a role to play in ensuring that the EU’s support for the
ICC is mainstreamed across their policies and activities, the aforementioned players are those that directly or
indirectly are envisaged to play an important role in facilitating that mainstreaming process.

5.

EXPLANATION OF APPROACH

The following analysis is designed to assess the success with which the EU has effectively mainstreamed its
support for the ICC system of international criminal justice across its policies and their implementation. The
objective behind mainstreaming support for the ICC is to ensure that the overall approach taken by the EU is
consistent  and  coherent.  Article  13(1)  of  the  Treaty  on  European  Union  (TEU)  requires  that  the  Union
‘ensures the consistency, effectiveness and continuity of its policies and actions’(61) and further Article 21(3)
TEU specifically  requires  consistency  and  across  all  areas  of  EU  external  action  and  ‘external  aspects  of  its
other  policies’.  Consistency  (the  absence  of  contradiction  between  policies  and  actions(62))  and  coherence
(‘to guarantee that policies arrive at synergetic effects’(63)) is essential in order to obtain effectiveness of the
policies and actions(64). This has been acknowledged by the EU in the Strategic Framework and Action Plan
for Human Rights and Democracy in 2012(65).

The 2011 Decision  correctly identified the five  primary areas of concern  to the ICC – universality,  integrity,
independence, effectiveness and efficiency, cooperation and complementarity. These are of equal concern
irrespective of the international actors involved – whether they are states (both State Parties and non-State
Parties,  EU  Member  States  or  third  states)  or  international  institutions  (such  as  the  EU).  It  is  for  this  reason
that the 2011 Decision is directed at both the EU and its Member States. Moreover, it is an acknowledgement
that  because  of  its  very  nature,  the  EU  in  many  respects  has  to  act through its  Member  States – as  State
Parties to the Rome Statute, acting in their own competences.

The activities and measures that the EU undertakes pursuant to these five areas of concern are drawn from a
variety  of  instruments,  some  adopted  in  the  internal  sphere,  and  some  in  the  external.  This  fragmented
approach  is  a  consequence  of  the  EU’s  constitutional  structure.  However,  as  the  EU  has  pursued  greater
integration,  the  distinction  between  the  internal  and  external  aspects  of  its  actions  is  diminishing.  In
practice,  it  is  becoming  increasingly  untenable  to  think  about  the  ‘internal’  or  ‘external’  dimension  in
isolation – the activities that the EU undertakes in the context of one dimension are often inextricably linked
to the other, particularly when Member State activity is informed not only by Union policies but by common
obligations derived under the Rome Statute system.

Before  the  conclusion  of  the  Lisbon  Treaty  and  the  implementation  of  its  constitutional  reforms,  it  was
hoped  that  the  abolition  of  the  traditional  pillar  structure  would  enable  a  more  coherent  and  workable

59 Article 4(1)(a), Regulation (EC) No 1717/2006.
60 Article 3(2), Regulation (EC) No 1717/2006.
61 Article 13(1) TEU.
62 Organisation and Functioning of the European External Action Service: Achievements, Challenges and Opportunities,
February 2013, EXPO/B/AFET/2012/07 at p.16 (hereafter ‘EXPO/B/AFET/2012/07’).
63 EXPO/B/AFET/2012/07 at p.16.
64 EXPO/B/AFET/2012/07 at pp.16-17.
65 Council  of  the  European  Union,  EU  Strategic  Framework  and  Action  Plan  for  Human  Rights  and  Democracy,
Luxembourg, 25.06.2012 (11855/12) (hereafter ‘EU Strategic Framework’).

23

Policy Department DG External Policies

pattern of EU action in the external sphere(66). While in principle, the consolidation of EU treaties has opened
the  door  to  the  potential  for  a  more  integrated  approach  towards  delivering  EU  support  to  the  ICC,  that
potential  is  yet  to  be  fully  realised(67).  Rather,  the  current  framework  for  support - predicated  upon  a
combination of the 2011 Decision (adopted under the CFSP) and Member State activity to in observation of
their Rome Statute obligations, largely reflects a continuation of the pre-Lisbon approach.

The purpose of this study is to assess the extent to which this current framework for EU support for the ICC
nevertheless  facilitates  consistency,  coherence – and  therefore  its  effectiveness.  The  following  thematic
framework borrows from the five aforementioned areas of concern to the ICC that were also identified as the
objectives by the EU in its 2011 Decision. As the 2011 Decision itself stipulates:

The  Union  shall  ensure  consistency  and  coherence  between  its  instruments  and  policies  in  all  areas  of  its
external  and  internal action in relation to the most serious international  crimes as referred to  in  the Rome
Statute(68).

In order to assess the consistency and coherence in the EU’s approach to each theme, this study will assess
the  EU’s  activities  both  in  the  external  and  the  internal  sphere.  Consistency  has  three  dimensions,  all  of
which are essential to the effectiveness of the EU approach as a whole:






‘internal-internal’: within the Union there must be consistency between EU Member States;
‘internal-external’:  the  EU  must  uphold  the  same  values  and  principles  that  it  promotes  in  its  policies
with regards to third states;
‘external-external’: the EU must treat all third states alike – in that hold them to the same expectations
and values(69).

While  the  policies  adopted  might  differ  depending  on  what  is  appropriate  for  each  context,  it  is  only  by
adopting  this  approach  that  a  true  assessment  can  be  made  of  the  success  with  which  the  EU  has
mainstreamed its support for the ICC, to identify inconsistencies and how they may be remedied.

Accordingly,  Part  Two  will  assess  the  performance  of  the  EU  as  a  whole  in  supporting  the  ICC – or  more
accurately the ICC system - taking each of the five  thematic areas  in  turn. Each section will first provide an
explanation  of  what  each  area  of  concern  entails  from  the  perspective  of  the  ICC  system  of  international
criminal justice. It will then assess the measures that the EU takes – first in the context of its Member States,
and then in terms of its external action, in order to contribute support in those fields.

66 Antoniadis A. and Bekou O., 2007, at p.626.
67 Cameron, August 2013, at p.5.
68 Article 8, Council Decision 2011/168/CFSP.
69 This  approach  is  inspired  by  the  framework  of  analysis  presented  by  EU  Special  Representative  Stavros  Lambrinidis
during  his  lecture,    S.  Lambrinidis,  ‘The  Rights  of  Others:  Why Human  Rights  Diplomacy  Matters’,  Human  Rights  Law
Centre Annual Lecture, Human Rights Law Centre, University of Nottingham, 30.01.2014.

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Mainstreaming Support for the ICC in the EU’s Policies

PART TWO: UNPACKING THE EU’S POLICIES ON THE ICC

6.

6.1

UNIVERSALITY

General Discussion

6.1.1

Universality of the ICC System

As  discussed  in  Part  One,  with  the  entry  into  force  of  the  Rome  Statute  in  July  2002  a  new  system  of
international  criminal  justice  was  established – a  universal  system  designed  to  ensure  accountability  for
crimes  under  international  criminal  law,  wherein  impunity  is  the  exception,  not  the  norm.  While  the
objective of universality is not explicitly mentioned in the Rome Statute of the ICC, the universal sentiment is
evident.  The  Statute’s  preamble  opens  with  the  acknowledgement  of  the  universality  of  the  human
experience – in heritage, bonds and also of suffering(70). It continues to note that international crimes within
the jurisdiction of the Court ‘threaten the peace, security and well-being of the world’ (emphasis added)(71).
The  Rome  Statute  did  not  just  establish  an  institution;  it  laid  the  foundations  of  a system of  international
criminal justice. The drafters of the Statute were certain; the Court is not, and cannot be the only actor. In this
system  of  justice,  the  primary  responsibility  for  accountability  lies  with  states,  as  the  principle  of
complementarity makes clear. In order for the Court to operate as an effective safeguard against impunity, it
requires the widest possible acceptance of its jurisdiction. Thus, ensuring that the largest possible number of
states  agree  to  be  bound  by  the  ICC  system,  has  been  a  key  objective  for  the  Court  ever  since its
establishment(72).

As  a  treaty-based  institution,  the  ICC  only  has  jurisdiction  over  crimes  committed  on  the  territory,  or  by
nationals, of states(73) that have accepted the Court’s jurisdiction by ratifying the Rome Statute. To date, 122
of  the  193 member  states  of  the  United  Nations  have  ratified  the  Rome  Statute(74).  For  the  ICC  to  have
attained this level of international commitment in the first decade of its operation is certainly a remarkable
achievement(75).  However,  despite  this,  the  reality  is that  many  of  the  world’s  most  populated  and  largest
states  are  yet  to  ratify  the  Rome  Statute.  According  to  World  Bank  data  on  world  population,  six  of  the
world’s ten most populated countries (including the top four – China, India, the US and Indonesia) are not
are  not  parties  to  the  Rome  Statute(76).  With  the  populations  of  China,  India,  the  US  and  Indonesia  alone
accounting for 44% of the world’s population, roughly 65% of the world’s population do not benefit from –
or  are  subject  to – the  ICC  (77). Therefore,  in  terms  of  universality  of  the  Statute,  work  remains  to  be  done.
Significant  gaps  also exist in terms of  membership from  the Arab world(78) or the Asian continent(79); both
are an ICC priority in terms of enhancing universality(80).

70 1st preambular paragraph, Rome Statute.
71 3rd preambular paragraph, Rome Statute.
72 Telephone interview #10 with ICC official, 13.02.2014.
73 Article 12(2), Rome Statute.
74 While 122 states have signed and ratified the Statute, thereby becoming states parties, and additional 31 states have
signed but not yet ratified. These non-state party signatories are Algeria, Angola, Armenia, Bahamas, Bahrain, Cameroon,
Egypt,  Eritrea,  Guinea-Bissau,  Haiti,  Iran,  Israel,  Jamaica,  Kuwait,  Kyrgyzstan,  Monaco,  Morocco,  Mozambique,  Oman,
Russia, Sao Tome and Principe, Solomon Islands, Sudan, Syria, Thailand, Ukraine, United Arab Emirates, USA, Uzbekistan,
Yemen, and Zimbabwe. See UN Treaty Series (Rome Statute).
75 The  most  recent  ratification,  by  Cote  d’Ivoire  in  February  2013,  came  six  months  after  the  Court  celebrated  its  10th
anniversary of its becoming operation.
76 World Bank, 2012.
77 Based upon figures provided by the World Bank (World Bank, 2012).
78 Of  the  22  members  of  the  League  of  Arab  States,  only  Jordan,  Djibouti,  the  Comoros  Islands  and  Tunisia  are  State
Parties to the Rome Statute. See UN Treaty Series (Rome Statute).
79 Of the 24 countries in Asia, only Afghanistan, Bangladesh, Cambodia, Maldives, Mongolia, the Philippines, the Republic
of Korea, Timor-Leste and Japan have ratified the Rome Statute. See UN Treaty Series (Rome Statute).

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Policy Department DG External Policies

In  2006,  the  ICC  ASP  adopted  a  Plan  of  Action  for  achieving  universality  of  the  Statute(81).  In  it,  it
acknowledged that

1. Universality  of  the  Rome  Statute  of  the  International  Criminal  Court  is  imperative  if  we  are  to  end
impunity  for  the  perpetrators  of  the  most  serious  crimes  of  international  concern,  contribute  to  the
prevention of such crimes, and guarantee lasting respect for and enforcement of international justice.
Full  and  effective  implementation  of  the  Rome  Statute  by  all  States  Parties  is  equally  vital  to  the
achievement of these objectives(82).

2.

Once  more,  this  suggests  that  there  is  more  to  the  objective  of  universality  than  to  endow  the  ICC  with
jurisdiction over all territories and all individuals. This objective relates to the universality of the values and
principles embodied by the Rome Statute and the ICC - international criminal justice, respect for the rule of
law and ending impunity. As Part One, section 5 observed, these objectives are shared by the EU. Given that
Article 21 TEU states that the EU’s actions on the international scene are guided by democracy, the rule of
law,  the  universality  and  indivisibility  of  human  rights  and  fundamental  freedoms,  respect  for  human
dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter
and  international  law(83), the  EU  and  the  ICC  are  natural  partners  for  the  promotion  of  the  Rome  Statute’s
universality.

6.1.2

Universality of the Court

While  signing  and  ratifying  the  Statute  can  itself  constitute  a  powerful  demonstration  of political
commitment  to  the  values  and  objectives  it  embodies,  in  order  to  establish  the  envisaged  system  of
international  criminal  justice,  it  is  necessary  for  states  to  also  implement  the  Statute  provisions  in  their
domestic  legal  orders.  Implementation requires  states  to  review  their  existing  legislation,  assess  its
compatibility  with  the  Rome  Statute  and  make  appropriate  amendments,  or  more  likely,  to  adopt  specific
legislation. The implications of this are twofold.

First,  such  legislation  should  be  designed  to  enable  states  to  investigate  and  prosecute  the  core
international crimes.  Typically,  this involves incorporating the  core  international crimes, namely,  genocide,
crimes  against  humanity  and  war  crimes  into  domestic  law.  While  there  is  no  explicitly  binding  obligation
under the Statute for states to investigate and prosecute crimes nationally, to do so allows them to maintain
control  over  the  case(s)  while  also  precluding  ICC  action  (for  further  on  this,  see  Part  Two,  section  11).
Second, from the perspective of the ICC, full implementation enables states to cooperate with the Court so
as  to  enable  it  to  discharge  its  functions.  Given  the  absence  of  a  dedicated  enforcement  agency,  the  ICC
relies  exclusively  on  state  cooperation  to  conduct  its  activities.  To  borrow  the  words  of  the  late  Antonio
Cassese,  one  of  the  main  architects  of  the  contemporary  system  of  international  criminal  justice,  the  ICC -
like the ICTY to which his metaphor originally referred – can be seen as a ‘giant without arms and legs – it
needs artificial limbs to walk and work’(84). The willingness and ability of states to cooperate with the ICC (i.e.
arrest,  surrender  alleged  perpetrators,  serve  documents,  collect  evidence,  facilitate  the  appearance  of
witnesses etc.) is absolutely essential to the Court’s ability to fulfil its mandate. It should be noted that there
is  a  clear  obligation  under  the  Statute  for  states  to  make  national  procedures  available  for  all  forms  of
cooperation(85). Full implementation enables states to investigate and prosecute, to the exclusion of the ICC,
as  well  as  cooperate  with  requests  made  by  the  Court.  This,  in  turn,  ensures  that  the  ICC  system  enjoys

80 Telephone interview #05 with ICC Official, 04.02.2014.
81 Strengthening  the  International  Criminal  Court  and  the  Assembly  of  States  Parties,  1.12.2006    (ICC-ASP/5/Res.3)
(hereafter  ‘ICC-ASP/5/Res.3’);  Plan  of  Action  of  the  Assembly  of  States  Parties  for  Achieving  Universality  and  Full
Implementation  of  the  Rome  Statute  of  the  International  Criminal  Court,  Annex  to    ICC-ASP/5/Res.3  (hereafter  ‘ASP
Universality Plan of Action’).
82 ASP Universality Plan of Action, paras. 1 and 2.
83 Article 21, TEU.
84 Cassese, 1998, at p.13.
85 Bekou, 2009.

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Mainstreaming Support for the ICC in the EU’s Policies

universality  in  practice.  For  this  reason,  it  is  common  to  consider  universality  and  implementation  as  two
sides of the same coin.

Attaining the universality of the ICC in order to enable it to discharge its functions requires further measures
beyond the adoption of implementing legislation. State Parties, in order to be able to fulfil their cooperation
obligations with the ICC must also sign, ratify and implement the Agreement on Privileges and Immunities
(APIC)(86). The APIC provides the Court, officials and staff of the ICC(87), as well as victims and witnesses(88),
with the privileges and immunities necessary to perform their duties in an independent, unconditional, and
efficient manner.

6.1.3

The  Kampala  Amendments:  Expanding  the  Scope  of  War  Crimes  and  the  Crime  of
Aggression

Universality of the Court also requires ratification by State Parties of amendments to the Statute adopted at
the 2010 Kampala Review Conference. Two amendments were adopted, one to Article 8, expanding the list
of crimes that constitute war crimes within the Court’s jurisdiction(89), and another, adopting a definition of
the crime of aggression(90). The amendment to Article 8 of the Rome Statute, which incorporates the use of
certain weapons in the context of non-international armed conflicts into the scope of war crimes within the
ICC’s jurisdiction, enters into force for each ratifying state in accordance with Article 121(5) of the Statute(91).
However, Article 8bis, which defines the crime of aggression, not only requires a minimum of 30 ratifications
but also, in order to enter into force, requires the adoption of a decision to activate the Court’s jurisdiction by
a 2/3 majority after 1 January 2017(92).

For  many,  the  promise  of  the  Court’s  jurisdiction  over  the  crime  of  aggression  upon  the  agreement  of  a
definition of the crime can be seen as one of the biggest draw to the Rome Statute system. Defined as the
planning, preparation, initiation or execution by a person in a leadership position of an act of aggression(93),
the  amendment  agreed  upon  at  Kampala  represents  a  compromise  reflecting  the  high  controversy  and
political sensitivity that this issue involves. Although all Member States of the UN are already bound by the
UN Charter regime of international law, as well as customary international law, regarding the legality of the
use  of  force – the  ratification  and  implementation  within  domestic  legal  systems  (and  the  accompanying
institutional  reforms  of  foreign  and  defence  policy  to  make  it  compliant  with  that  law)  of  the crime of
aggression would incur a significant effort by State Parties to the Rome Statute.

In addition to the measures  required of State Parties when implementing Article 8bis of the Rome Statute,
the  novelty  of  the  crime  of  aggression within  the  Rome  Statute  system (for  the  crime  of  aggression  can  be
traced  back  to  the  International  Military  Tribunal  at  Nuremberg  and  the International  Military  Tribunal  for
the Far East where crimes against peace were included in the list of charges, and on which convictions were
made) warrants closer appreciation by all. This is not to discourage ratification of the amendment, but rather
to raise awareness of the implications of ratification and implementation of the amendment upon the Rome
Statute system of international justice.

Foremostly,  it  is  important  to  note  the  definition  of  aggression  and  who,  under  that  definition,  may  be
responsible  for  it.  Article  8bis(1),  defining  the  crime  of  aggression,  declares  it  as  only  being  able  to  be
committed by ‘a person in a position effectively to exercise control over or to direct the political or military

86 Agreement on the Privileges and Immunities of the International Criminal Court (adopted 9.09.2002, entered into force
22 July 2004) 2271 UNTC 3 (hereafter ‘APIC’).
87 Articles 13-18, APIC.
88 Articles 19 and 20, APIC.
89 Article  8,  Rome  Statute  (amended  by  ICC-ASP  resolution  RC/Res.5  of  11.06.2010,  adding  paragraphs  2(e)(xiii)  to
2(e)(xv)).
90 Article 8bis Rome Statute, as amended by resolution RC/Res.6 of 11.06.2010.
91 Article 121(5), Rome Statute.
92 Article 15bis(3), Rome Statute, added by resolution RC/Res.6 of 11.06.2010.
93 Article 8bis (1), Rome Statute.

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Policy Department DG External Policies

action  of  a  State’(94).  Two  observations  are  to  be  made  here – first,  is  that  it  can  only  be  committed  by
individuals acting on behalf of the state (as opposed to non-state actors or organisations). Second, and more
significantly, both in principle and in practice, is the fact that the crime of aggression is also only a leadership
crime. This is important because it ensures that only those most responsible for acts of aggression are held
accountable, rather than for example individual soldiers following the orders of their commanders.

However,  in  order  to  be  able  to  investigate  and  prosecute  the  crime  of  aggression  it  is  necessary  that  the
Court is able to successfully pursue those high level state officials such as heads of state and government, as
well as commanders in chief with effective control over the military actions of the state. Current difficulties
faced  by  the  Court  in  the  context  of  its  proceedings  against  high  level  officials  regarding  crimes  currently
within  the  Court’s  jurisdiction – genocide,  crimes  against  humanity  and  war  crimes – provide  some
indication of the challenges that the Court might face should it attempt to conduct investigations into the
even  more  politically  sensitive  matter  of  aggression.  Political  difficulties  must  not  deter  the  pursuit  of  the
values  and  principles  embodied  in  the  Rome  Statute.  However,  in  order  for  the  Court  to  be  able  to
independently, effectively and efficiently fulfil its judicial mandate when investigating and prosecuting  the
crime  of  aggression(95)  State  Parties  must  be  prepared  to  provide  the  Court  with  all  the  robust  political
support and technical cooperation that it requires to do so.

Despite the practical challenges presented by the crime of aggression, ratification and full implementation
of both of the Kampala amendments are necessary in order to ensure the full universality of the Statute and
the ICC system of international criminal justice. To have amendments agreed upon and adopted by the ASP,
the legislative branch of the Court, but for those amendments not to have comprehensive legal effect, can
risk undermining not only  the universality of  the Statute (in particular the principle of its application  to all
without distinction) but also its  integrity (see Part  Two, section 7) and ultimately, the Court’s effectiveness
(see Part Two section 8). Knowledge that the Court is unable to exercise jurisdiction over those crimes unless
states have ratified the amendment, and in the case of the crime of aggression – until a minimum number of
states have ratified the amendment – risks diminishing the deterrent effect of the Court’s jurisdiction.

Having set out in general terms what is implied by the objective of universality, the following sub-sections
will unpack and assess the performance of both EU Member States and the Union in terms of the promotion
of the universality of the Rome Statute.

6.2

Member States

All 28 Member States of the EU are State Parties to the Rome Statute, with all, except the Czech Republic and
Lithuania, having ratified the Statute prior to its entry into force in July 2002(96). While Lithuania ratified the
Statute in May 2003 and therefore prior to its accession to the Union in 2004, the Czech Republic ratified the
Statute in 2009, some five years after its accession to the Union (for further discussion of the issues raised by
the  Czech  accession,  see  section  6.3.1).  Similarly,  as  of  November  2011,  all  EU  Member  States  have  signed
and ratified the APIC. This internal consistency not only  is a powerful statement of European unity in their
commitment  to  both  international  criminal  justice  generally,  and  the  ICC  specifically,  but  also  significantly
strengthens the EU’s position as it seeks to promote universality of the Statute in its external relations.

94 Article 8bis(1), Rome Statute.
95 The  potential  challenges  to  the  independence  of  the  Court  as  a  judicial  institution  were  acknowledged  by  the
European  Parliament  in its resolution  in the lead  up  to  the  Kampala  conference,  where  it  called  upon  State  Parties  to
adopt  a  definition  of  the  crime  of  aggression  that  would  respect  the  Court’s  independence  by  avoiding  any
‘jurisdictional  filter’  that  might  make  the  exercise  of  the  Court’s  jurisdiction  of  the  crime  conditional  upon  the
determination  by  a  political  actor  (for example,  the UN  Security  Council)  that  a  crime  of  aggression  has  occurred.  See
‘European  Parliament  resolution  of  19  May  2010  on  the  Review  Conference  on  the  Rome  Statute  of  the  International
Criminal Court, in Kampala, Uganda (P7_TA(2010)0185), OJ C 161, 31.5.2011, at E/78 at para.8.
96 UN Treaty Series (Rome Statute).

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Mainstreaming Support for the ICC in the EU’s Policies

Although  the vast  majority of Member States have  adopted some form of relevant  national  implementing
legislation, four Member States – the Czech Republic, Lithuania, Romania and Slovakia – are yet to adopt any
such domestic legislation. As was discussed in the previous section, the absence of national implementing
legislation  bears  directly  upon  the  universality  of  the  Rome  Statute  system.  Where  such  legislation  would
also incorporate the definitions of the crimes within the Court’s jurisdiction into the domestic legal system
so as to enable national courts to exercise jurisdiction over them, this lack of specific legislation may prevent
such states from making use of the principle of complementarity (see section 10). But from the perspective
of  the  Court,  the  failure  to  adopt  implementing  legislation  undermines  the  ability  of  those  states  to
cooperate with the Court, and thus assist the Court in pursuing its mandate.

The  European  Parliament  has  acknowledged  this  lack  of  internal  consistency  within  the  EU  and  has,  as
recently as in December 2013, called upon all EU Member States to fully implement the Rome Statute within
their domestic legal orders(97). Whereas, as will be discussed in section 6.3.3, it is envisaged that the EU can
provide  technical  assistance  with  regard  to  the  implementation  of  the  Rome  Statute  to  third  states,  no
equivalent provision is made for Member States. Currently, the core international crimes are not included in
the list of crimes over which the EU has competence under Article 83(1) TFEU. This limits the competence of
the EU to harmonise the domestic criminal laws within the Union with regard to these crimes. Given that all
EU Member States share in the same commitment to combat impunity for the crimes as defined within the
Rome Statute, to which they are all a party, to include at a minimum the crimes within the jurisdiction of the
Court, as defined in the Rome Statute, would be a way through which the EU could then assist its Member
States to ensure that they have fully implemented the Rome Statute.

Although EU Member States lead the way in ratifying both the Rome Statute and the APIC, they appear to
have  foregone  the  opportunity  to  do  the  same  with  regard  to  the  amendments  adopted  at  the  Kampala
Review  Conference.  While  the  matter  of  the  crime  of  aggression  warrants  closer  consideration  by  EU
Member  States  (see  above),  the  amendment  to  Article  8  stands  as  a  distinct  amendment.  Therefore,  any
concerns  that  Member  States  may  have  with  regard  to  the  crime  of  aggression  should  not  preclude  their
ability to ratify and implement the amendments to Article 8. To date, 16 State Parties to the Rome Statute
have  ratified  the  amendment  to  Article  8(98),  and  13  have  ratified  the  aggression  amendment.  Of  these
ratifications, only seven for each of the amendments are by EU Member States(99). Those Member States are
Belgium, Croatia, Cyprus, Estonia, Germany, Luxembourg and Slovenia.

Members  and  groups  within  the  European  Parliament  have  taken  the  initiative  to  encourage  wider
ratification among EU Member States of the Kampala amendments, particularly Article 8bis on the crime of
aggression.  For  example,  in  November  2013,  MEPs  participated  in  a  meeting  entitled  ‘The  Kampala
Amendments on the  Crime  of Aggression: a  promise for the end of the illegal use of force in  international
relations’ organised by supporters of the ICC within the Parliament(100). Here parliamentarians engaged with
external advocates of promoting universality of the Statute and in particular  the Kampala amendments,  in
order to discuss both the need to promote wider ratification among EU Member States of the amendment,
but also to discuss how such encouragement could be advanced and what the European Parliament can do
to  this  end.  In  this  latter  respect,  options  discussed  included  the  adoption  of  a  Plenary  Recommendation
supporting  the  ratification  of  the  aggression  amendment  accompanied  by  a  Parliamentary  resolution
including a call to ratify the amendments. Further, it was suggested that MEPs from Greece and Italy (who

97 European Parliament resolution of 11.12.2013  on the Annual Report on Human Rights and Democracy in the World
and  the  European  Union’s  Policy  on  the  Matter,  Strasbourg  11.12.2013  (P7_TA(20130575),  Strasbourg,  11.12.2013
(hereafter  ‘European  Parliament  resolution  ‘P7_TA(20130575)’),  at  para.101.  See  also  European  Parliament  resolution
P7_TA(2011)0507 at para.43.
98 In  addition  to  the  seven  EU  states,  the  other  states parties  that  have  ratified  the  Article  8  amendment  are  Andorra,
Botswana, Liechtenstein, Mauritius, Norway, Samoa, San Marino, Trinidad and Tobago, and Uruguay.
99 In addition to the seven EU states, the other states parties that have ratified the aggression amendment are Andorra,
Botswana, Liechtenstein, Samoa, Trinidad and Tobago and Uruguay.
100 PGA, 28.11.2013.

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Policy Department DG External Policies

hold the presidency of the Council in 2014) should be engaged in the effort to promote wider ratification of
the  amendment.  Finally,  amendments  to  the  EU’s  Action  Plan  on  Democracy  and  Human  Rights  were
proposed in order to place greater emphasis upon the need for ratification of the Kampala amendments(101).
On  12  February  2014,  this  was  followed  up  by  the  inclusion  of  a  segment  on  the  agenda  of  the  Sub-
Committee on Human Rights on the Kampala amendment on the crime of aggression(102).

This  focus  on  the  crime  of  aggression  is  commendable,  but  the  exclusive  focus  on  Article  8bis has
overshadowed  the  promotion  of  ratification  and  implementation  of  the  amendments  to  Article  8,  the
discussion of which is notable only for its absence. This is despite the fact that the amendment to Article 8
does  not  incur  the  same  political  and  practical  challenges  that  the  crime  of  aggression  implicates.
Accordingly the European Parliament may wish to consider undertaking efforts similar to those adopted to
promote ratification of the aggression amendment in order to promote the ratification of the amendment to
Article 8.

As both State Parties to the Rome Statute and as Member States of the EU, Member States are required to
promote  the  universality  and  full  implementation  of  the  Statute  in  the  course  of  their  relations  with  third
states. As members of the ICC ASP, Member States have an obligation to implement the 2006 ASP Resolution
and Plan of Action for achieving universality and full implementation(103). As Member States of the EU, they
are guided in their activities by the 2011 Decision. Article 2(1) and 2(2) of the 2011 Decision state that along
with the EU, its Member States shall ‘make every effort’ to further the processes of universal ratification, full
implementation  and  participation  in  the  values  embodied  by  the  Statute.  The  2011  Action  Plan  outlines
some  of  the  measures  that  Member  States  could  take  to  work  towards  these  objectives.  These  include,
raising  the  ICC  in  bilateral  contacts  with  third  countries(104),  or  contributing,  where  requested,  with
appropriate  financial  and  technical  support  to  assist  third  states  in  the  legislative  work  necessary  to  ratify
and implement the Statute(105).

6.3

The EU as a Global Actor

In the previous section, it was noted that the consistency across EU Member States in their ratification of the
Rome Statute and APIC places the EU as an international actor in a stronger position  when promoting the
universality of the Statute and its full implementation in its external affairs. It can be recalled that since the
adoption  of  the  first  EU  Common  Position  on  the  ICC  in  2001,  the  promotion  of  the  universality  of the
Statute has consistently  been one of the EU’s  top  priorities(106). The 2001 Common Position prioritised the
EU’s promotion of the widest possible ratification of the Statute in order to contribute to the early entry into
force of the Statute(107). In 2002, when the Common Position was updated to account for the Statute’s entry
into force, although not explicitly using the language of ‘universality’, Article 2 of the 2002 Common Position
stated  that  both  the  EU  and  its  Member  States  would  promote  the  widest possible  participation  in  the
Statute  by  promoting  its  ratification  and  acceptance,  and  also  would  promote  the  dissemination  of  the
‘values, principles and provisions’ contained in the Statute(108). In subsequent updates of EU policy regarding
its support for the ICC by the Council, this provision was replicated, both in the 2003 Common Position(109),

101 PGA, 28.11.2013.
102 European Parliament Subcommittee on Human Rights, Committee Meeting 12.02.2014, Agenda Item 9: ‘Exchange of
views on the Kampala amendments to the Rome Statute on the crime of aggression’.
103 ICC-ASP/5/Res.3 and ASP Universality Plan of Action.
104 Action Plan, 2011, at p.9
105 Action Plan, 2011, at p.10.
106 See Part 1, section 4.1.
107 Article 2, Council Common Position 2001/443/CFSP.
108 Articles 2(1) and 2(2), Council Common Position 2002/474/CFSP.
109 Articles 2(1) and 2(2), Council Common Position 2003/444/CFSP.

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and  the  2011  Decision(110).  The  following  three  sections  will  assess  the  measures – political,  financial,  and
technical, that the EU has adopted when giving effect to these commitments.

6.3.1

Political

The consistent commitment to promoting the universality of the Statute reflected in each of the Common
Positions  and  the  2011  Decision  itself  constitutes  a  significant  political  statement  in  support  of  the
universality  of  the  Statute.  By  exercising  its  policy  making  and  coordinating  mandate  in  the  form  of  the
adoption  of  Common  Positions  and  Decisions(111),  the  Council – representing  the  views  of  every  Member
State - has  provided  the political impetus and legal basis for all of the EU’s concrete  policy  to support this
objective.

This pledge has also been supported by the European Parliament through the adoption of resolutions that
address the EU’s commitment to, and support for, the ICC. In addition to ICC-specific resolutions that call for
the  promotion  of  the  universality  and  full  implementation  of  the  Statute(112),  the  resolution  of  December
2013 on the Annual Report on Human Rights and Democracy in the World 2012(113):





Called on all EU Member States to fully implement the Rome Statute, as well as calling upon EU Member
States to ratify the Kampala Amendments and encourage ratification by third states;
Called on the EU and its Member States to emphasise the need to ratify and implement the Statute and
Agreement on Privileges and Iimmunities in negotiations and dialogues with third states.

This  resolution  demonstrates  how  the  EU  as  an  international  actor  is  equally  concerned  with  promoting
universality and full implementation internally – amongst its own Member States – as it is in the context of
its external affairs. While this section focuses upon the measures taken by the EU and its Member States to
promote  the  universality  of  the  Statute  and  the  values  it  embodies  in  the  framework  of  external  relations
with third States, it is important also to acknowledge the role that the Union and its Member States play in
other international institutional fora – most notably, within the UN. Section 7 will present a mixed view on
the success with which the EU and its Member States have achieved a unified and consistent approach when
defending the integrity of the Statute within the UN Security Council. However, here it is important to note
the  successes  and  continuing  improvements  that  EU  Member  States  and  the  EU  have  achieved  when
promoting the mainstreaming of support for  the ICC and the system it embodies within the UN. The EU is
increasingly speaking with one voice in debates within UN fora, wherein it has taken the opportunity to raise
support  for  international  criminal  justice  and  the  ICC(114).  A  recent  example  where  both  individual  EU
Member States and the EU demonstrated a strong commitment to international criminal justice and the ICC
was in the open meeting of the UN Security Council on the promotion and strengthening of the rule of law
in  the  context  of  international  peace  and  security  on  19  February  2014,  organised  on  the  initiative  of
Lithuania, that is currently holding the Presidency of the Security Council(115). The ICC, international criminal
justice  and  accountability  featured  heavily  in  the  contributions  of  all  EU  Member  States,  reiterating  their
importance  to  the  advancement  of  the  rule  of  law,  both  at  the  national  and  international  levels(116).  In
addition to the individual speeches by EU Member States, a representative of the EU delegation to the UN

110 Article 2, Council Decision 2011/168/CFSP.
111 Article 16 TEU.
112 European Parliament resolution P7_TA(2011)0507, para.4.
113 European Parliament resolution ‘P7_TA(20130575), at para.101.
114 Recent examples include: The Situation in the Middle East, including the Palestinian Question, 22.10.2013 (UN DOC
S/PV.7046),  statement  by  Mr  Hallergard  (EU  observer)  at  p.40;  Women  and  Peace  and  Security,  24.06.2013  (UN  Doc
S/PV.6984),  statement  of  Mr  Vrailas,  speaking  on  behalf  of  the  EU  and  its  Member  States,  at  p.57;  Agenda  Item  69:
Promotion  and  Protection  of  Human Rights,  24.12.2012,  (UN  DOC  A/C.3/67/SR.27)  statement  of  Ms.  Kaljulate  (EU
Observer), at p.10.
115 Letter  dated  3.02.2014  from  the  Permanent  Representative  of  Lithuania  to  the  United  Nations  addressed  to  the
Secretary-General, 3.02.2014 (S/2014/75).
116 See UN Security Council, Press Release 19.02.2014.

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spoke  on  behalf  of  the  EU,  similarly  stating  the  EU’s  strong  commitment  to  the  ICC  and  the  ICC  system  of
accountability(117).

Accordingly,  before  considering  how  the  EU  has  acted  to  promote  universality  among  third  states  in  the
course  of  its  political  activities,  this  section  will  consider  how  the  EU  has  used  its  political  leverage  to
encourage candidate countries for EU membership to ratify the Statute.

The Policy of Conditionality

While  all  EU  Member  States  are  State  Parties  to  the  Rome  Statute,  in  order  to  maintain  this  consistency
across  the  Union,  the  EU  has  adopted  a  policy  of  conditionality,  requiring  candidate  states  to  ratify  and
implement  the  Rome  Statute  as  a  condition  for  accession.  Of  the  five  current  candidate  countries – the
former  Yugoslav  Republic  of  Macedonia,  Iceland,  Montenegro,  Serbia,  and  Turkey,  only  one – namely
Turkey– is not yet a party to the Rome Statute. This was highlighted in the 2013 Progress Report as having
affected the rate of Turkey’s alignment with the EU on the common foreign and security policy(118).

When  continuing  negotiations  with  Turkey,  and  potential  future  candidates  (of  the  three  potential
candidates acknowledged, one, Kosovo, is not yet a State, and therefore is unable to ratify the Rome Statute)
the  EU  can  benefit  from  the  experience  it  has  gained  in  the  course  of  its  previous  negotiations.  In  the
previous  section,  it  was  noted  that  the  Czech  Republic,  despite  having  not  ratified  the  Rome  Statute,
nevertheless joined the EU in 2004, making it the only non-State Party within the Union until its ratification
of the Statute in 2009. This is despite the Council noting, in its 2003 Common Position, and thus prior to the
Czech accession, that candidate countries including the Czech Republic had intended to apply the Common
Position as from the date of its adoption(119). Nevertheless, the failure of the Czech Republic to comply with
this commitment was overlooked in the final monitoring report on the preparedness of candidate countries
for accession(120). Once the Czech Republic became an EU Member State, the absence of any mechanism to
enforce compliance placed the Union in a weaker position to require ratification of the Rome Statute.

In order to avoid the reoccurrence of this situation with regard to Turkey or future candidate countries and
to  preserve  the  internal  consistency  within  the  EU  as  regards  to  ratification  and  implementation,  the
Commission must ensure that mechanisms are in place to prevent accession of new Member States without
having ratified the Statute.

The following section will assess the EU’s promotion of universality and full implementation in the context of
its relations with third states. In order to enhance the effectiveness of the policies undertaken by the EU to
promote  ratification  in its  external  relations,  repetition  of  the  Czech  situation  should  be  avoided  so  as  to
maintain both EU-external consistency as well as internal consistency.

Promoting Universality Among Third States

The ASP Plan of Action suggests that State Parties to the Rome Statute could focus their efforts to promote
universality  of  the  Rome  Statute  based  upon  regional  or  geographical  proximity(121).  On  the  basis  of  this
suggested  strategy,  the  EU  might  also  look  to  other  states  within  the  two  geopolitical  groupings  that the
majority of EU Member States belong to – ‘Western European and Others’ (‘WEOG’) and ‘Eastern Europe’(122).
From the WEOG group, the main absentee from the roll-call of State Parties to the Rome Statute is the USA.
Similarly,  from  the  Eastern  Europe  grouping,  non-State  Parties  include  Russia,  Armenia,  Azerbaijan,  and

117 See UN Security Council, Press Release 19.02.2014.
118 Commission Staff Working Document: Turkey 2013 Progress Report, Brussels 16.10.2013 (SWD(2013) 417 final) at p,75.
119 Article 9(1) Council Common Position 2003/444/CFSP.
120 European Commission, Comprehensive Monitoring Report of the European Commission on the State of Preparedness
for  EU  Membership  of  the  Czech  Republic,  Estonia,  Cyprus,  Latvia,  Lithuania,  Hungary,  Malta,  Poland,  Slovenia  and
Slovakia, Brussels, 11.11.2003 (COM (2003)675 final).
121 ASP Universality Plan of Action, at para. 4.
122 The only Member State to fall outside one of these two groups is Cyprus, which sits in the Asia-Pacific grouping at the
UN.

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Belarus. In this regard, through the European Parliament, the EU has called upon the US and Russia as two of
the three permanent members of the UN Security Council who are not parties to the Rome Statute, to ratify
the Rome Statute(123).

Turkey, as was discussed in the previous section, is a candidate country for EU membership. Accordingly its
membership  of  the  EU  is  subject  to  the  condition  of  its  ratification  of  the  Rome  Statute.  Beyond  this
approach,  the  EU  could – and  indeed,  has – incorporated  ratification  and  implementation  into  its  policies
and strategies with respect to other non-candidate neighbours, in the form of ICC clauses that are, however,
non-essential. Ratification and implementation of the Rome Statute features as an element of the European
Neighbourhood  Policy  (ENP).  Applying  to  16  countries  in  Europe’s  southern  and  Eastern  neighbourhoods
(including the aforementioned Armenia, Azerbaijan and Belarus)(124), clauses relating to the ratification and
implementation  of  the  Rome  Statute  are  included  in  all  agreements(125),  except  for  those  with  Israel(126),
Morocco(127)  Palestine(128)  and  Tunisia(129).  While  the  inclusion  of  an  ICC  clause  in  the  agreement  with  the
Palestinian  authorities  remains  controversial  pending  confirmation  of  Palestine’s  statehood  and  thus  its
ability  to ratify  the Rome Statute(130), it is recommended that a consistent approach  towards ICC clauses is
taken across all states within the ENP. A failure to make any mention of the ICC in the agreements concluded
with Israel and Morocco and an omission to include an implementation of the ICC clause in the agreement
with Tunisia risks fostering the impression that the EU takes an inconsistent approach to the universality of
the Rome Statute. Furthermore, the EU should continue to monitor developments in the ongoing situation
in Ukraine.

It may be recalled that Ukraine is one of the states that has signed but not yet ratified the Rome Statute. At
the  time  of  writing,  the  temporary  Ukrainian  Parliament  that  emerged  out  of  the  recent  upheaval  has
indicated  support  for  the  ICC  system  of  international  accountability  through  a  ‘referral’  resolution  to  the
ICC(131).  While  the  legal  effect  of  its  resolution  remains  unclear(132),  it  nevertheless  may be  taken  to
demonstrate  in  principle  political  support  for  the  ICC  from  within  some  quarters.  The  Parliamentary
resolution itself may be insufficient to accept the Court’s jurisdiction under Article 12(3) of the ICC Statute,
and further, the ICC Registrar has confirmed that no such declaration accepting the Court’s jurisdiction has
been formally made to the Court to date. Furthermore, the Ukrainian Constitutional Court has opined that a
number  of  the  provisions  of  the  Rome  Statute  are  incompatible  with  the Ukrainian  Constitution,  which

123 European Parliament resolution P7_TA(2011)0507, at para.37.
124 These  countries  are  Algeria,  Armenia,  Azerbaijan,  Belarus,  Egypt,  Georgia,  Israel,  Jordan,  Lebanon,  Libya,  Moldova,
Morocco, Palestine, Syria, Tunisia, and Ukraine.
125 EU/Armenia Action Plan, at p.14; EU/Azerbaijan Action Plan; EU/Egypt Action Plan; EU/Georgia Action Plan;  EU/Jordan
Action Plan; EU/Lebanon Action Plan; EU/Moldova Action Plan; EU/Ukraine Action Plan.
126 EU/Israel Action Plan.
127 EU/Morocco Action Plan.
128 EU/Palestine Action Plan.
129 EU/Tunisia Action Plan.
130 In  January  2009,  the  Palestinian  National  Authority  lodged  a  declaration  with  the  Registrar  of  the  ICC  under
Article12(3) of the Statute which enables non-states parties to accept the jurisdiction of the Court on an ad hoc basis.
When determining whether to open an investigation into the communications received by the OTP regarding alleged
crimes to have been committed in Palestine, the OTP was required to consider whether Palestine qualifies as a ‘state’ for
the purposes of Article 12(3). After three years of deliberation, the OTP issued a decision declined to make a decision on
the issue, deferring the question as to the legal status of Palestine to competent bodies of the UN or the ASP. For further
details, see ‘Situation in Palestine’ 3.04.2012.
131 See  Draft  Statement  to  the  International  Criminal  Court  for  recognition  of  the  International  Criminal  Court’s
jurisdiction  over  Ukraine  concerning  crimes  against  humanity  by  senior  officials  of  state,  which  led  to  very  serious
consequences  and  mass  murder  of  Ukrainian  citizens  during  the  peaceful  protests  in  the  period  from  21.11.2013  to
22.02.2014, 4269 of 25.02.2014, translation available at
http://translate.google.nl/translate?hl=en&sl=uk&tl=en&u=http%3A%2F%2Fw1.c1.rada.gov.ua%2Fpls%2Fzweb2%2Fwe
bproc4_1%3Fpf3511%3D49944&sandbox=1 .
132 For an analysis, see Heller K., 2014.

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thereby  precludes  the  acceptance  of  the  Court’s  jurisdiction,  either  through  ratification  or  through  the ad
hoc acceptance of jurisdiction provided for by Article 12(3) of the Statute(133). In light of the complexity of the
emerging  situation,  the  EU  and  its  Member  States  could  have  a  role  here  to  provide  assistance  to  the
Ukrainian  authorities  in  order  to  overcome  these  legal  and  technical  challenges  that  are  currently  an
obstacle to the acceptance of the ICC’s jurisdiction either on an ad hoc basis, or to ratify the Statute and thus
become a State Party(134).

Moving  further  afield,  clauses  promoting  universality  and  full  implementation  of  the  Rome  Statute  have
been included in the EU’s Central Asia Strategy(135). One of the most successful measures undertaken by the
EU  in  order  to  promote  the  ratification  of  the  Rome  Statute  was  the  inclusion  of  an  ‘ICC  clause’  in  the
Cotonou Agreement which provides the framework for the EU’s relations with 79 countries from Africa, the
Caribbean  and  the  Pacific  (ACP)(136).  Signed  in  2000,  and  revised  again  in  2005(137),  and  2010(138),  the
Cotonou  Agreement  establishes  the  basis  for  cooperation  on  matters  relating  to  economic,  social  and
culture development, aimed at reducing poverty and integrating ACP states into the global economy while
at  the  same  time  adhering  to  the  aims  of  sustainable  development.  The  preamble  to  the  Agreement
acknowledges the commitment of all Parties to the Agreement to the fight against impunity and the role of
national  action  and global  action  in  order  to  effectively  pursue  accountability  and  international  criminal
justice(139).  Further,  Article  11(7)  establishes  a  list  of  commitments  undertaken  by  the  Parties  to  the
Agreement  in  respect  of  the  promotion  of  international  criminal  justice.  Parties  are  encouraged  to  share
their  experiences  in  making  the  necessary  legislative  changes  to  facilitate  ratification  of  the  Rome  Statute
and  implementing  the  Statute  upon  ratification(140).  While  not  obliging  Parties  to  actually  ratify  and
implement the Rome Statute, it does commit them to ‘seek steps towards’ doing so(141).

Currently,  of  the  79  ACP  countries,  11  states  have  signed  but  not  ratified  the  Rome  Statute(142),  while  a
further 10 have yet to sign or ratify the Statute(143). Following the referral of the situation in Darfur to the ICC
and the issue of the warrant for the arrest of President Al Bashir by the ICC, Sudan did not sign the revised
Cotonou Agreement of 2005 due to the inclusion of the ICC clause (which had been a clause in the original
agreement)(144).  Although  legally,  Sudan’s  non-ratification  of  the  revised  Agreement  prevents  the  Union

133 ICRC,  ‘Issues  raised  with  regard  to  the  Rome  Statute  of  the  International  Criminal  Court  by  National  Constitutional
Courts, Supreme Courts and Councils of State’ January 2003 Advisory Service on International Humanitarian Law, at p.11.
134 It  should  be  noted  that  even  if  an  effective  declaration  to  accept  the  Court’s  jurisdiction  is  made,  it  would  still  be
necessary  to  consider  whether the  violence  that  has  occurred  in  Ukraine  falls  within  the  Court’s  jurisdiction – namely
that the alleged criminal acts meet the threshold to constitute crimes against humanity and thus fall within the Court’s
competence.
135 Council of the European Union, The European Union and Central Asia: The New Partnership in Action’, June 2009 at
pp.16-17.
136 Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part,
and  the  European  Community  and  its  Member  States,  of  the  other  part,  signed  in  Cotonou  on  23.06.2000, OJ  L  317,
15.12.2000, at p.3.
137 Agreement amending the Partnership Agreement between the members of the African, Caribbean and Pacific Group
of States, of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on
23.06.2000, OJ L 209, 11.8.2005, at p.27.
138 Agreement  amending  for  the  second  time  the  Partnership  Agreement  between  the  members  of  the  African,
Caribbean and Pacific Group of States, of the one part, and the European Community and its Member States, of the other
part, signed in Cotonou on 23.06.2000 , as first amended in Luxembourg on 25.06.2005, OJ L 287, 4.11.2010, at p.3.
139 Preambular para. 10 and 11.
140 Article 11(7) Consolidated version of the ACP-EC Partnership Agreement, 2012.
141 Article 11(7) Consolidated version of the ACP-EC Partnership Agreement, 2012.
142 Being Angola, the Bahamas, Cameroon, Eritrea, Guinea Bissau, Haiti, Jamaica, Mozambique, Sao Tome and Principe,
Solomon Islands, and Zimbabwe (see UN Treaty Series (Rome Statute)).
143 Being Ethiopia, Kiribati, Micronesia, Niue, Palau, Papua New Guinea, Rwanda, Swaziland, Togo and Tonga.
144 European Commission, Non-ratification of the revised Cotonou Agreement by Sudan FAQ (August 2009).

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from implementing bilateral development cooperation through the European Development Fund (EDF), this
hasn’t resulted in the EU ceasing all assistance to Sudan, either through the EDF or other instruments(145).

Similarly, at least one of the reasons for South Sudan’s failure to join the Cotonou Agreement is the ICC clause(146).

At  the  same  time,  political  support  for  the  promotion  of  the  universality  of  the  Statute  is  not  limited  to
regional strategies. The EU has placed support for the ICC – whether it be ratification and implementation or
whether  it  be  cooperation,  on  the  agenda  of  issues  it  raises  with  third  states  in  the  course  of  its  bilateral
relations. In the 2012 Annual Report on Human Rights and Democracy, the Thematic Report documents the
measures  taken  by  the  EU  in  the  promotion  of  universality  and  full  implementation.  In  the  Report  on
Thematic Issues, the EU notes that:

[t]he European Union and its Member States continued encouraging the widest possible participation in the
Rome  Statute.  Ratification  of  and  accession  to  the  Rome  Statute  respectively  as  well  as – where  relevant -
implementation of the Rome Statute continued to be a standing item on the agendas for most human rights
dialogues,  including  the  human  rights  dialogue  with  the  African  Union.  In  addition,  the  EU  maintained  its
systematic  demarche  campaigns  worldwide,  its  policy  of  including  ICC  clauses  in  agreements  with  third
countries  (such  as  the  EU-Ukraine  Association  Agreement  initialled  on  30  March  2012)  and  financial  aid  to
civil society organisations(147).

This  is  elaborated  upon  by  the  EU  Annual  Report  on  Human  Rights  and  Democracy  in  the  World  in  2012
(Country  Reports),  which  indicates  that  the  ICC  was  raised  in  the  course  of  diplomatic  engagements,
dialogues and negotiations with Syria, Libya, Chad, Côte d’Ivoire, Equatorial Guinea, Brunei, Indonesia, Laos,
Malaysia, Solomon Islands, and Vanuatu(148).

A  similar  picture  is  painted  by  the  2012  Report,  which  observes  that  in  2011,  the  EU  carried  out  actions  in
support of the universality and implementation of the Rome Statute in the following countries and regional
organisations:  ASEAN,  Armenia,  Bahamas,  Cambodia,  Cameroon,  China,  Republic  of Congo  (Brazzaville),
Egypt,  El  Salvador,  Guatemala,  Jamaica,  Kazakhstan,  Kuwait,  Kyrgyzstan,  Mongolia,  Morocco,  Nepal,  Qatar,
Thailand, Togo, Turkey, Ukraine, and Vietnam(149).

While commendable, the absence of key partners including the USA and Russia – both permanent members
of the UN Security Council – from the lists of states with whom the issue of ICC ratification has been recently
raised,  is  an  inconsistency  that  needs  to  be  addressed.  Another  key  absentee  from  the  list  of  states  with
whom the ICC has been recently raised is India(150). As the 2013 Thematic Report states, it is a standing item
on most dialogues. While diplomatic sensitivities are acknowledged – as are the benefits of so-called ‘quiet
diplomacy’ – taking  a  differential  approach  in  the  public  sphere  risks  creating  a  public  perception  of
selectivity  or  inconsistency  in  the  eyes  of  those  who  are  faced  with  public  calls  for  ratification,
implementation  or  cooperation.  The  risk  of  creating  a  perception  of  ‘double  standards’  is  particularly
concerning  in  the  context  of  the  objective  of  promoting  universality,  which  by  its  very  nature  rejects  any
sense of differential treatment.

145 European Commission, Non-ratification of the revised Cotonou Agreement by Sudan FAQ (August 2009).
146 Telephone interview #09 with EU official, 07.02.2014.
147 EU  Annual  Report  on  Human  Rights  and  Democracy  in  the  World  in  2012  (Thematic  Reports),  Brussels, 13.05.2013
(9431/13) at p.110.
148 EU  Annual  Report  on  Human  Rights  and  Democracy  in  the  World  in  2012  (Country  Reports),  Brussels,  21.10.2013
(15144/13).
149 EEAS, Human Rights and Democracy in the World: Report on EU Action in 2011, Brussels, June 2012 at p.61.
150 However,  the  full  list  of  demarches  conducted  by  the  EU  on  matters  relating  to  the  ICC since  2002,  indicate  that
demarches have been conducted in respect of these states. For a full list, up until 1.09.2013, see The European Union’s
reply to the information request in paragraph 6, sub-paragraph h) of the Plan of Action for achieving universality and full
implementation of the Rome Statute’, at Annex 1 (‘EU reply to Plan of Action request’).

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With  regard  to  the  effectiveness  of  these  diplomatic  actions,  in  particular  demarches,  a  number  of
interviewees  observed a  need  to  assess  their  impact  and  effectiveness(151).  In  particular,  informal  feedback
following some demarches has given rise to the suggestion of a need for greater training within the EU for
those responsible for conducting demarches on its behalf on ICC and international criminal justice related
matters in order to improve their effectiveness(152).

Complementing  the  political  initiatives  to  promote  the  ratification  of  the  Rome  Statute,  the  High
Representative has issued statements welcoming ratification of the Statute by states(153).

While the promotion of universality is included in policies and dialogues adopted with respect to regions or
states,  participation  in  those  strategies  and  initiatives  is  not  conditional  upon  ratification  of  the  Rome
Statute. One opportunity missed by the EU was the inclusion of the Rome Statute in the list of Treaties the
ratification of which is a condition for qualification for GSP+ status. The ‘Generalised Scheme of Preferences’
(GSP)  allows  developing  country  exporters  to  pay lower  duties  on  their  exports  to  the  EU  and  GSP+
enhanced  preferences  means  full  removal  of  tariffs  on  essentially  the  same  product  categories  as  those
covered by the general arrangement. In order to qualify for GSP+ status, states must ratify and implement a
number  of  international  conventions  relating  to  labour  rights,  the  environment  and  good  governance,
including  human  rights  treaties,  but  not  including  the  Rome  Statute(154).  Two  of  the  first  10  countries  to
receive GSP+ status, Armenia and  Pakistan are  both non-State  parties  to the Rome Statute.  Had  the Rome
Statute been included in the list of treaties, the EU could have used the economic incentive of GSP+ status as
a  ‘carrot’  with  which  to  encourage  third  states  to  ratify  the  Rome  Statute.  This  is  a  significant  missed
opportunity, as recognised by the European Parliament(155). One of the EU’s strongest assets in terms of its
external relations is the economic benefits that its partnership brings to third states. For example, according
to the European Commission, the EU is Pakistan’s most significant trading partner, accounting for over 21%
of its exports(156). By including the Rome Statute in the list of treaties and by making GSP+ status conditional
upon ratification, this would have provided a considerable incentive for ratification and thus the expansion
of the Rome Statute system of international criminal justice.

151 Telephone interview #07 with representative of a non-EU Member State, ICC State Party (GRULAC Group), 06.02.2014;
Telephone  interview  #11  with  former  representative  of  global  NGO  with  experience  as  a  successful  EIDHR  applicant,
14.02.2014.
152 Telephone interview #11 with former representative of global NGO with experience as a successful EIDHR applicant,
14.02.2014.
153 Recent statements include, Statement by EU High Representative Catherine Ashton on the ratification of the Rome
Statute  of  the  International  Criminal  Court  by  Côte  d’Ivoire,  Brussels,  19.02.2013  (A  91/13);  Statement  by  High
Representative  Catherine  Ashton  on  the  ratification  of  the  Rome  Statute  of  the  International  Criminal  Court  by
Guatemala, Brussels, 3.04.2012 (A 157/12); Statement by the High Representative Catherine Ashton on the ratification of
the Rome Statute of the International Criminal Court by Vanuatu, Brussels, 7.12.2011 (A 498/11).
154 For  a  list  of  the  Conventions,  see  Regulation  (EU)  No  978/2012  of  the  European  Parliament  and  of  the  Council  of
25.10.2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008, OJ L
303, 31.10.2012, at p.1, at Annex VIII.
155 European Parliament resolution P7_TA(2011)0507 at para.96.
156 See http://ec.europa.eu/trade/policy/countries-and-regions/countries/pakistan/ .

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Mainstreaming Support for the ICC in the EU’s Policies

6.3.2

Financial

The EU, together with assistance from individual Member States, has been a key financial supporter of many
of the ICC’s activities. In terms of universality, a number of seminars were organised with the support of the
EU  to  raise  awareness  of  the  ICC,  particularly  in  the  early  days  of  the  Court’s  operation(157),  but  also,  more
recently, an ‘NGO Forum’ was organised to engage civil society from around the world(158).

Whereas ICC awareness is high amongst a number of states, some of the EU funding for ICC-related matters
could  be  directed  at  reaching  out  to  regions  where  ICC  membership  is  low(159).  In  addition,  funding  could
also be channelled to ICC initiatives aimed at enhancing implementation(160). It should not be forgotten, that
64% of Asian States have not ratified the ICC, while 89% do not have an adequate legal framework. Similarly
while  62%  of  African  States  have  joined  the  ICC,  18%  have experienced  conflict  or  patterns  of  abuse  that
may amount to ICC crimes and do not have adequate legal frameworks or work processes in place(161).

The EU is the principal funder for a number of prominent NGOs and CSOs that work to promote universality
and full implementation of the Rome Statute. The European Commission, through the EIDHR, has funded a
number  of  organisations  who  have  important  universality  components.  Amongst  others,  Parliamentarians
for Global Action (‘PGA’), the Coalition for the International Criminal Court (‘CICC’), No Peace Without Justice
(‘NPWJ’),  and  The  Centre  for  International  Law  and  Policy - Case  Matrix  Network  (‘CILRAP-CMN’)  have  all
received funding in order to promote ratification of the Rome Statute(162). The EIDHR has also been a critical
supporter of smaller regional, or national NGOs and CSOs working within states and regions to promote the
ICC and its values(163).

The  work  of  NGOs  and  CSOs  to  promote  support  for  the  ICC  on  the  ground  can  be  an  important
reinforcement to bilateral political efforts between the EU and third states. For example, PGA focuses upon
mobilising  the  ‘political  and  legal  prerogatives  of  its  members’  to  ‘promote  peace,  democracy,  the  rule  of
law,  human  rights,  gender  equality  and  population  issues  by  informing,  convening,  and  mobilizing
parliamentarians  to  realize  these  goals’(164).  One  prominent  campaign  led  by  its  International  Law  and
Human  Rights  Programme  is  to  promote  universal  ratification  and  implementation  of  the  Statute  and  the
Kampala  Amendments. Given  that  its  membership  comprises  legislators  from  democratically  elected
parliaments  from  around  the  globe,  it  can  therefore  play  a  particularly  influential  role  in  fostering  the
necessary  political  will  for  ratification  among  those  responsible  for  making  policy  and  legislative  decisions
on behalf of a country.

While PGA promotes and mobilises support within governments, the CICC focuses upon mobilising support
for  the  Rome  Statute  system  of  international  criminal  justice  within  civil  society.  The  Coalition  represents
2500  civil  society  organisations  around  the  globe  sharing  the  same  concern  and  commitment  to  the
strengthening of a universal, fair, independent and effective ICC(165). Coordinating the efforts of its member
organisations  on  the  basis  of  geographic  networks  and  thematic  caucuses,  one  of  the  Coalition’s  most

157 Telephone interview #01 with ICC Official, 03.02.2014.
158 The NGO Forum took place between 5-6.12.2013 and within the wider accountability theme, the ICC was included in
the Fight against Immunity pillar. Telephone interview #09 with EU official, 07.02.2014.
159 Telephone interview #05 with ICC Official, 04.02.2014.
160 Telephone interview #01 with ICC Official, 03.02.2014; Telephone interview #10 with ICC official, 13.02.2014.
161 See information obtained through the National Implementing Legislation Database which forms part of the ICC Legal
Tools Project, available at www.legal-tools.org/en/go-to-database/national-implementing-legislation-database/ .
162 Informal interviews with representatives of each organisation.
163 EIDHR, EIHDR evaluation of its support to the International Criminal Court (ICC) and to NGOs for the Establishment
and  Functioning  of  the  ICC,  2000-2008,  Final  Report,  16.12.2008  (hereafter  ‘EIDHR  Evaluation,  2008’);  EIDHR,  The
European Initiative for Democracy and Human Rights Compendium 2000-2006, at pp.295-310; The European Instrument
for Democracy and Human Rights (EIDHR) Compendium January 2007-April 2009, at pp.37-39.
164 See http://www.pgaction.org/about/pga/overview.html .
165 See http://www.iccnow.org/?mod=coalition .

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Policy Department DG External Policies

prominent  campaigns  centres upon the objective of promoting a  ‘universal court with global support’(166).
As  the  Coalition  describes,  this  policy  includes  the  ‘universal  ratification  campaign’  whereby  the  Coalition
and  its  members  utilise  advocacy  methods  and  materials  to  ‘publicize  the  work  of  the  Court  and  the
importance of ratification in the target country’(167).

In order to ensure maximum effectiveness of the efforts of all actors involved in promoting the universality
of the Statute – including the EU, the ICC Presidency, CICC or PGA – one suggested recommendation by an
interviewee was to enhance cooperation and coordination between these actors in order to ensure by that
strategies adopted by each to promote universality are consistent and complementary to each other(168).

At a regional level, through the EIDHR, the European Commission has provided funding to the International
Commission of Jurists (‘ICJ’) Kenyan Section which operates across the East African region to ‘raise awareness
of  international  criminal  justice  mechanisms,  focusing  especially  on  the  International  Criminal  Court  (ICC)
and  to  empower  various  stakeholders  to  be  able  to  engage  with  international  criminal  processes  at  the
policy,  legislative  and  implementation  levels’.  ICJ  Kenya  plays  an  important  role  in  enhancing  an
understanding  of  the  values  and  principles  underpinning  the 
‘cooperation,
implementation  and  objective  discourse  of  the  Rome  Statute  with  state  governments,  the  East  African
Community  and  the  African  Union’(169).  ICJ  Kenya  has  been especially vocal  with  regard  to  clearing  up
misunderstandings surrounding the ICC, particularly in light of the recent ICC-Africa tensions(170).

ICC  and  promoting 

Another  example  comes  from  CILRAP-CMN.  Part  of  a  recently  awarded  EIDHR  project,  work  will  focus  on
removing obstacles for ratification in Indonesia and Sierra Leone, with technical assistance on the drafting of
ICC-related legislation to be undertaken in Mongolia(171). These activities fall squarely within universality and
target regions which are within both ICC and EIDHR strategic priorities.

Establishing grass roots support for the ICC, and more generally for the values and principles that the Rome
Statute embodies within third states, can be an important way to build momentum in favour of ratification
of the Rome Statute by mobilising demand for ratification from within or by placing pressure from outside.
But  even  if  these  efforts  do  not  directly  lead  to  ratification  of  the  Statute,  they  can  play  a  crucial  role  in
supporting  and  strengthening  commitment  to  the  rule  of  law,  human  rights  and  justice – values  and
principles  the  adherence  to  which  makes  violence  and  insecurity  less  likely.  Funding  should  therefore
continue to support NGOs that engage in efforts targeting the promotion of the Court’s universality.

6.3.3

Technical

The question of technical support in advancement of the promotion of the universality of the Rome Statute
and its full implementation becomes pertinent once third states have indicated their political will to accede
to  the  Rome  Statute.  In  order  to  do  so,  they  may  have  to  make  a  number  of  legislative,  and  even  more
fundamental constitutional changes to their domestic legal system in order to ensure that it complies with
the  Rome  Statute  and  to  incorporate the  Statute fully  into  domestic  law.  As  already  discussed,  full
implementation  of  the  Rome  Statute  ensures  that  domestic  jurisdictions  have  the  legal  capacity  to
investigate  and  prosecute  international  crimes  and  also  enables  states  to  fulfil  their  obligations  under  the
Rome Statute to cooperate fully with the Court.

166 Telephone  interview  #06  with representative  of  a  local  NGO  with  experience in  ICC  situation  countries,  04.02.2014;
Telephone  interview  #11  with  former  representative  of  global  NGO  with  experience  as  a  successful  EIDHR applicant,
14.02.2014.
167 See http://www.iccnow.org/?mod=ratimp .
168 Telephone interview #11 with former representative of global NGO with experience as a successful EIDHR applicant,
14.02.2014.
169 See http://www.icj-kenya.org/index.php/international-criminal-justice .
170 See Part Three, section 12 and informal discussion with an NGO representative.
171 Informal interview with representative of NGO recently awarded the funding.

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Mainstreaming Support for the ICC in the EU’s Policies

While Article 2(3) of the 2011 Decision places the onus on EU Member States to provide technical assistance
to third states to ratify and implement the Rome Statute, the 2011 Action Plan calls upon the EU Focal Point
to  assist  in  the  coordination  of  technical  assistance  provided  by  Member  States  to  third  states(172).  The  EU
Focal  Point,  the  Action  Plan  states,  ‘will  facilitate  advice  and/or  support  to  the  ratification  or  accession
process of a third state by providing updated lists of experts, relevant texts and commentaries’(173). Building
upon  this,  it  continues  that  the  EU  Focal  Point  may  liaise  with  national  focal  points  to  provide  such
assistance(174), and suggests channels through which the EU itself could provide assistance. These include EU
development  and  cooperation  programmes,  expert  level  technical  consultations  between  the  EU  and  the
target states, or the support of civil society projects(175). Finally, the Action Plan suggests that the EU Focal
Point maintains a list of experts designated by Member States that could be deployed on behalf of the EU to
accomplish specific technical assistance missions(176).

Whilst  the  EU’s  support  of  NGOs  is  widely  acknowledged(177),  awareness  of  the  possibility  of  technical
assistance  provided  for  by  the  EU  remains  relatively  low  amongst  the  NGO  community  in  situation
countries(178). Similarly, access to experts that could be utilised by local NGOs to provide drafting assistance
for instance is also haphazard(179).

Greater use could therefore be made of the list of experts maintained by the EU Focal Point. In addition, as
the updating of that list depends on Member States’ initiative, it is not always as current as it should be(180).
Due  consideration  should  therefore  be  given  to  the  possibility  of  an  independent  list  of  experts  being
created  which  would  be  public,  centrally  maintained  on  the  Focal  Point  website,  and  where  individual
experts could also nominate themselves, subject to meeting specific qualitative criteria.

Additionally, although the European Parliament’s Standing Committees already discuss issues pertaining to
the ICC, where appropriate(181), more use could be made of their  amassed expertise externally. Visibility of
the  Committees’  ICC-related  action  could  be  increased  through  improved  online  presence.  Although  the
Committees’  meetings  documents  are  available  on  the  Parliament’s  website,  work  on  the  ICC  is  not
systematically presented, nor is it accessible through a single place, despite the existence of a good online
search engine(182).

Further, looking beyond the Committee structures, better use could be made of those MEPs who, owing to
their  prior  experience  within  their  own  national  legal  and  political  systems,  might be  in  a  position  to
contribute  to  debates  outside  the  EP  on  their  experience  of  dealing  with  obstacles  to  ICC  ratification  or

172 Action Plan, 2011 at p.p. 9-11.
173 Action Plan, 2011 at p.9.
174 Action Plan, 2011 at p.9.
175 Action Plan, 2011 at p.9.
176 Action Plan, 2011 at p.9.
177 Telephone interview #01 with ICC Official, 03.02.2014; Telephone interview #03 with global NGO representative with
experience as a capacity builder, a successful EIDHR applicant and as an ICC consultant, 03.02.2014; Telephone interview
#04 with representative of a Non-EU Member State, ICC State Party (WEOG Group), 04.02.2014; Telephone interview #05
with ICC Official, 04.02.2014; Telephone interview #06 with representative of a local NGO with experience in ICC situation
countries, 04.02.2014; Telephone interview #07 with representative of a non-EU Member State, ICC State Party (GRULAC
Group), 06.02.2014; Telephone interview #08 with global NGO representative  with experience working with a local NGO
and  also  an  unsuccessful  EIDHR  applicant,  06.02.2014;  Telephone  interview  #11  with  former representative  of  global
NGO  with  experience  as  a  successful  EIDHR  applicant,  14.02.2014;  Telephone  interview  #12  with  global  NGO
representative, 19.02.2014.
178 Telephone interview #06 with representative of a local NGO with experience in ICC situation countries, 04.02.2014.
179 Telephone interview #06 with representative of a local NGO with experience in ICC situation countries, 04.02.2014.
180 Telephone interview #09 with EU official, 07.02.2014.
181 e.g.  European  Parliament  Subcommittee  on  Human  Rights,  Committee  Meeting  12.02.2014,  Agenda  Item  9:
‘Exchange of views on the Kampala amendments to the Rome Statute on the crime of aggression’.
182Telephone  interview  #03  with  global  NGO  representative  with  experience  as  a  capacity  builder,  a  successful  EIDHR
applicant and as an ICC consultant, 03.02.2014.

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Policy Department DG External Policies

enhancing implementation of the Rome Statute(183). Their presence and expertise could certainly benefit the
ICC  or  State  Parties  and NGO  awareness  campaigns  and  would  help  further  disseminate  the  Parliament’s
activities externally.

6.4

6.4.1

Recommendations

Member States







Through the Commission, provide technical assistance to the four EU Member States that
have  yet  to  adopt  ICC  implementing  legislation  (use  could  be  made  of  the  EU’s  list  of
experts in international criminal law maintained for each country);
Encourage  the  ratification  among Member  States of  the  amendments  to  the  Rome
Statute agreed at the Kampala Review Conference, namely the amended list of war crimes
and the crime of aggression;
Consider widening the list of crimes falling within the competence of the EU under Article
83(1) TFEU to include the core international crimes as defined in the Rome Statute in order
to  strengthen  the  effectiveness  of  measures  to  ensure  internal  consistency  in  the  full
implementation of the Statute.

6.4.2

EU






















The Commission should  ensure  that  ratification  (and  implementation)  of  the  Rome
Statute is included in its proposals for the conditions imposed on candidate countries for
EU accession;
The EEAS should  target  countries  from  within  the  regional  groupings  that  EU  Member
States  belong  to,  such  as  the  ‘WEOG’,  or  ‘Eastern Europe’  groups,  in  order  to  promote
universality;
The European Parliament should  continue  to  call  upon  the  US  and  Russia  to  ratify  the
Rome Statute;
The European  Parliament should  keep  the  matter  of  implementing  legislation  on  its
agenda and should continue to raise the lack of implementation in EP’s resolutions;
The EEAS and Commission should  adopt  a  consistent  approach  with  regard  to  the
inclusion of ICC ratification and implementation clauses in agreements concluded under
the European Neighbourhood Policy;
The EEAS,  the High  Representative,  the EUSRs and  delegations  of  the Parliament
should  raise  the  issue  of  ICC  ratification  and  implementation,  where  appropriate,  in
bilateral dialogues and strive for consistency;
The EEAS and Commission should conduct an assessment of the impact of the Cotonou
Agreement  ICC  clause  in  order  to  determine  its  future  inclusion  in  other  similar
agreements;
The EEAS and Parliament should conduct an assessment of the efficacy of the demarches
in encouraging third states to ratify and implement the Rome Statute;
Continue to support NGOs who engage in ratification and implementation work;
Enhance  cooperation  and  coordination  between  the  different  actors  involved  in  the
promotion  of  universality – such  as  the  Presidency  of  the  ICC, the  EU,  and  major  NGOs
such as the CICC and PGA – by ensuring that the strategies adopted by each to promote
universality are consistent and complementary to each other;
The Commission should amend the list of treaties the ratification of which is a condition
for qualification for GSP+ status and make ratification of the Rome Statute a condition for
consideration of GSP+ status;

183 e.g. PGA, 2011.

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Mainstreaming Support for the ICC in the EU’s Policies







Target  some  of  the  funding  given  to  the  ICC  to  ratification  outreach  sessions  in
geographical  regions  where  membership  is  low.  Consider  channelling  funding  to  ICC
initiatives aimed at enhancing the implementation of the Rome Statute;
Make  better  use  of  technical  support  options  available.  Consider  the  creation  of  an
independent list of experts to be publicly available through the EEAS website;
The European Parliament should  promote  the  work  of  its  standing  committees
externally  and  to  encourage  MEPs  with  relevant  expertise  to  participate  in  awareness
raising campaigns on ICC Statute ratification and implementation.

7.

7.1

INTEGRITY

General Discussion

The  concept  of  ‘preservation  of  the  integrity  of  the  Statute’  entered  the  vocabulary  of  instruments
emanating  from  both  the  EU  and  the  ICC  soon  after  the  Court  came  into  existence.  Commitments  to
preserving  the  integrity  of  the  Statute  are  consistently  made  by  the  EU  and  other  stakeholders  in  the  ICC
system,  such  as  Canada  and  Japan(184).  Accordingly,  despite  the  lack  of  a  clear  definition  of  the  precise
meaning of this concept, this section will attempt to shed some light on ‘integrity’ based on how it has been
invoked.

At its fifth session, the ASP adopted a resolution that stated that the integrity of the Rome Statute must be
preserved and that treaty obligations emanating therefrom must be fully adhered to, and encourages States
Parties  to  the  Rome  Statute  to  exchange  information  and  to  support  and  assist  each  other  to  that  end,
particularly  in  situations  where  its  integrity  is  being  challenged  and  reminds  States  of  the  need  to  uphold
the  spirit  of  the  Statute,  and  of  their  obligation  to  cooperate  with  the  Court  in  the  fulfilment  of  its
mandate(185).

This  suggests  that  the  preservation  of  the  integrity  of  the  Statute  is  concerned  with  ensuring  that  the
essence of the Rome Statute is preserved and properly observed through compliance with the obligations
established therein. Ordinary use of the word ‘integrity’ can be taken to refer to the strength of a particular
object or thing, ‘the quality of being honest and having strong moral principles’ or ‘the state of being whole
and undivided’(186). Therefore, the preservation of the Statute may be taken to concern the protection of the
Statute,  or  more  specifically  the  system  that  it  embodies,  from  measures  that  could  weaken  or  dilute  the
ability of that system to attain its objectives and advancing the principles in the Statute. Supporting this, the
2011  Action  Plan  adopted  by  the  Council  states  that  ‘preservation  of  the  integrity  of  the  Rome  Statute’
encompasses  the  protection  of  the  core  principles  established  under  the  Rome  Statute  throughout  any
review process that might lead to amendments to the Statute itself and its subsidiary instruments’(187).

Looking  more  broadly,  the  ‘preservation  of  the  integrity  of  the  Statute’  may  be  understood  in  terms  of
Article  18  of  the  Vienna  Convention  on  the  Law  of  Treaties. This  provides  that  states  that  have  signed  a
treaty and either have declared their intention not to become a party to it, or the treaty is yet to come into
force, are under an obligation ‘not to defeat the object and purpose’ of that treaty(188).

Examples  of  measures  that  would  serve  to  undermine  the  integrity  of  the  Rome  Statute  would  be  the
granting of amnesties for those responsible for international crimes or the granting of immunity of specific
individuals from prosecution, for any reason – in particular, by reason of their official status, such as head of

184 Telephone interview #09 with EU official, 07.02.2014.
185 Article 3, ICC-ASP/5/Res.3.
186 "integrity, n.". OED Online. December 2013. Oxford University Press. 9 February 2014.
187 Action Plan, 2011, at p.8.
188 Article 18, Vienna Convention on the Law of Treaties (adopted 22.05.1969, and entered into force 27.01.1980)  1155
UNTS 331.

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Policy Department DG External Policies

state.  To  do  so  would  be  to  undermine  the  very  essence  of  the  notion  of  the  universality  of  international
criminal justice – all victims of crimes within the Court’s jurisdiction are entitled to justice irrespective of who
was responsible. Or put differently, ultimately, no one is above the law.

Similarly, the preservation of the integrity of the Statute necessarily involves the preservation of the Court’s
judicial character(189).  Therefore,  the preservation  of  the  integrity  of  the  Statute  is  closely  related  to  the
preservation of the Court’s independence (on which, see section 8). The preservation of the integrity of the
Statute requires that the Court is not placed under pressure to depart from or ‘interpret with flexibility’ the
Statute and its Rules of Procedure and Evidence, irrespective of political expediency. To this effect, in order
to  preserve  the  integrity  of  the  Statute,  it  is  essential  that  the  legal  framework  agreed  upon  at  the  Rome
Conference  and  manifested  in  the  Rome  Statute  is  properly  respected(190).  Further  to  that,  the  Court  as  a
judicial institution is bound to abide by that legal framework(191). To this effect, the task of the preservation
of the integrity of the Statute may be understood in terms of reconciling the ‘eternal tension’ between the
principle of legality (which is embodied by the Rome Statute and which guides the Court in its activities) and
political considerations (which influence state decision making)(192). In the course of balancing this tension, it
is  necessary  to  ensure  that  the  support  that  is  provided  to  the  Court  is  of  a  ‘principled  sort’;  one  that
understands and respects the judicial nature of the institution(193).

While  the  2003  Common  Position  noted  the  eminent  importance  of  preserving  the  integrity  of  the  Rome
Statute in its preambular paragraphs(194), it was not until the 2011 Decision that preservation of the integrity
of  the  Statute  was  formally  incorporated  as  a  concrete  objective  in  the  EU’s  policy  on  the ICC  by  the
Council(195).  Even  now,  with  its  formal  recognition  as  an  objective,  the  2011  Decision  provides  no  further
elaboration upon how the EU and its Member States in fact pursue this objective beyond acknowledging the
continuing relevance of Guidelines adopted in 2002 in order to respond to the initiative of a particular third
state  to  undermine  the  Statute’s  integrity  (for  further  discussion,  see  section  7.3.1).  Nevertheless,  as  the
following discussion will demonstrate, the EU has been a global leader when acting to preserve the integrity
of the Statute. Before considering  the measures that the  EU has taken to contribute to the preservation of
the integrity of the Statute, the following sub-section will briefly consider the duties and responsibilities of
EU  Member  States  as  State  Parties  to  the  Rome  Statute  in  this  regard.  Once  again,  as  in  the  case  of  the
promotion of universality, the effectiveness of Member State and EU efforts to preserve the integrity of the
Statute  depends  on  the  degree  of  consistency  in  their  approaches.  This  section  will  demonstrate  how
fragmentation or disunity among its Member States can dilute the effectiveness of the measures the EU as
an institution takes.

7.2

Member States

While the 2011 Decision and Action Plan only briefly elaborate upon the kind of measures that EU Member
States  could  take  in  order  to  promote  the  integrity  of  the  Statute,  by  and  large,  EU  Member  States  have
presented  a  united  front  in  their  response  to  measures  by  third  states  that  could  (or  do)  threaten  the
integrity of the Statute. It would be fair to say however that this apparent unity can quickly disappear when
individual  states  have  strong  views  over  a  particular  issue(196).  This  has  limited  the  efficacy  of  initiatives
undertaken at the collective level (see section 7.3.1.). While EU Member States by and large appeared united
on  the  issue  of  US  bilateral  immunity  agreements  (‘BIAs’),  Member  State  disunity  became  particularly
apparent in the context of the EU’s response to US initiatives to undermine the integrity of the Statute in the

189 Telephone interview #10 with ICC official, 13.02.2014.
190 Telephone interview #10 with ICC official, 13.02.2014.
191 Telephone interview #10 with ICC official, 13.02.2014.
192 Telephone interview #10 with ICC official, 13.02.2014.
193 Telephone interview #10 with ICC official, 13.02.2014.
194 Preambular paragraph 10, Council Common Position 2003/444/CFSP.
195 Article 1(2), Council Decision 2011/168/CFSP.
196 Telephone interview #05 with ICC Official, 04.02.2014.

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Mainstreaming Support for the ICC in the EU’s Policies

UN  Security  Council.  For  now,  it  suffices  to  say,  that  both  the  UK  and  France  (along  with  Ireland)  voted  in
favour of the adoption of a resolution designed to grant immunity from prosecution to peacekeeping troops
from non-State Parties to the Rome Statute, such as the US(197) (see section 7.3.1). As will be discussed, this
lack of consistency within the EU, which may also be understood in the context of the broader divisions that
emerged  over  the  support  of  the  US  in  its  military operations  in  Iraq  and  Afghanistan,  represented  a
particularly  unfortunate  tarnish  on  the  EU’s  record  when  promoting  the  integrity  of  the  Statute.  More
recently,  frustration  has  been  expressed  from  within  the  Court  at  the  unwillingness  of  State  Parties,
including  EU  Member  States,  to  express  unconditional  support  for  the  ICC  in  the  context  of  the  backlash
against the Court arising out of the Kenyan situation. Rather, what was witnessed was State Parties placing
pressure  on  the  ICC  to  be  more  ‘flexible’  in  the  interpretation  of  the  Statute  and  the  Court’s  Rules  of
Procedure  and  Evidence  (‘RPE’).  Such  equivocalness  in  defending  the  legal  framework  established  by  the
Rome Statute and the Court’s judicial character (including by certain EU Member States) in order to arrive at
a  politically  satisfactory  compromise  was  noted  by  some  interviewees  as  a  cause  for  concern(198).  To  this
effect, a number of interviewees expressed calls for greater consistency between EU Member States and the
positions  that  they  take,  particularly  in  the  context  of  discussions  concerning  the  ICC  in  the  UN  Security
Council(199).

7.3

7.3.1

The EU as a Global Actor

Political

EU and US-ICC Relations

One of the most high profile instances in which the EU has acted as a global actor to protect the integrity of
the Statute came soon after the Rome Statute was adopted. It concerns the EU’s response to the campaign
undertaken by the then US Administration to undermine the Court out of fear that an effective Court might
investigate and prosecute alleged crimes by US nationals. One of the most potent measures adopted by the
US was the policy of placing pressure on states ratifying the Rome Statute to sign BIAs with the US(200). BIAs
provided  guarantees  that  those  states  that  entered  into  them  would  not  cooperate  with the  ICC  in  cases
concerning  US  nationals  that  are  within  their  territorial  jurisdiction  and  have  been  accused  of  being
responsible  for  crimes  within  the  Court’s  jurisdiction.  The  pressure  placed  upon  State  Parties  to  enter  into
such agreements was, in some cases, considerable(201), with the American Service-members Protection Act
(‘ASPA’) forbidding the US to provide economic or financial assistance to State Parties to the Rome Statute
but who had not entered into BIAs with the US(202).

In response, in September 2002, the General Affairs and External Relations Council adopted Conclusions on
the ICC designed, in part, to provide guidelines to Member States regarding their response to the US policy
of BIAs(203). Although not binding on Member States, the Conclusions and accompanying Guiding Principles
provided  a  strong  statement  of  the  EU’s  political  support  for  the  ICC  and  the  principles  embodied  in  the
Statute.  They  represent  a  unified  European  position  to  US  objections  to  the  Court  and  reaffirmed  the
apolitical nature of the Court and its complementary jurisdiction to the primacy of national proceedings.

197 UN SC Res 1422 (12 July 2002) UN Doc S/RES/1422.
198 Telephone interview #10 with ICC official, 13.02.2014.
199 Telephone  interview  #10  with  ICC  official,  13.02.2014.  Telephone  interview  #12  with  global  NGO  representative,
19.02.2014.
200

Proposed  Text  of  Article  98  Agreements  with 

the  United  States, 

available  at

July  2002, 

http://www.amicc.org/docs/98template.pdf .
201 Roth, 2003.
202 American Service-Members’ Protection Act 2002, 22 U.S.C. 7.
203 Council  of  the  European  Union,  Draft  Council  conclusions  on  the  International  Criminal  Court,  Brussels  30.09.2002
(12488/1/02) Annex 1: EU Guiding Principles concerning arrangements between a State Party to the Rome Statute of the
International  Criminal  court  and  the  United  States  regarding  the  conditions  to  surrender  of  persons  to  the  Court
(hereafter ‘EU Guiding Principles, 2002’).

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Policy Department DG External Policies

The  Guiding  Principles,  by  not  distinguishing  between  EU  Member  States  and  third  states,  constituted  an
important foreign policy statement addressed to all countries, outlining the EU’s position with regard to BIAs
and  potentially  informing  the  decision-making  of  third  states  when  deciding  whether  to  enter  into  a  BIA
with the US and on what terms. It has been stated that governments from third states, including Japan, had
been looking to the EU position to provide leadership on the matter of BIAs(204), with the suggestion that as
one of the main proponents of the Court, the EU faces an expectation that it will provide ‘moral and political
guidance to which third states could align themselves’(205). The Guiding Principles restated the obligation of
State Parties to the Rome Statute to cooperate fully with the Court and not  to enter into agreements with
third states after ratification that would be inconsistent with their obligations under the Statute. Where BIAs
were concluded by State Parties – including at least one EU Member State - the Guiding Principles offered
suggestions as to how State Parties might mitigate the negative impact of such agreements on the integrity
of the  Statute(206).  These  include  clauses  that  guarantee  that  parties  to  the  agreement  will  themselves
conduct genuine investigations into allegations of crimes committed within the jurisdiction of the Court(207),
that  the  scope  of  such  agreements  be  limited  to nationals  of  non-State  Parties(208),  and  that,  if  concluded,
such agreements would contain a sunset clause so that such agreements were only temporary in nature(209).

In  addition  to  issuing  the  Guidelines,  the  Council  issued  a  statement  reaffirming  its  commitment  to  the
integrity of the Statute and provided information of a demarche conducted with the US addressing the US
measure  to  undermine  the  integrity  of  the  Statute  and  affirmed  the  EU’s  commitment  to  oppose  such
measures(210).

Although the US secured 102 BIAs, the practical effect of the policy was limited(211). While it demonstrated a
certain disregard for the ethos embodied by the Rome Statute, some evidence suggests that they back-fired
on  the  US  with  it  being  unable  to  pursue  certain  foreign  policy  objectives,  having  prohibited  itself  from
providing military and financial assistance to ICC State Parties who refused to enter into a BIA(212). With the
change in US administration in 2008, and a more cooperative relationship between the US and the ICC, any
remaining  BIAs  are  now  in  practice  obsolete.  However,  on  31st January  2014  President  Obama  issued  a
Memorandum  stating  that  any  and  all  US  military  forces  deployed  to  Mali  as  part  of  the  UN  Stabilisation
Mission  will  not  be  liable  to  prosecution  in  The  Hague(213),  referring  both  to  ASPA  and  a  Mali-US  BIA.  This
provides  a  stark  reminder  of  the  continuing  relevance  of  measures  to  counter  lingering  US  hostility.  The
2011 Decision also reminds the EU and its Member States of the continuing relevance of those Guidelines.
Indeed, more generally, since they are drafted in general terms their potential utility is not limited to the US;
if  other  states  seek  to  adopt  the  same  (or  a  similar)  strategy,  the  Guidelines  may  once  again  become
instructive.

204 Groenleer and Riiks, 2009 at p.177.
205 Groenleer and Riiks, 2009 at p.177.
206 EU Guiding Principles, 2002.
207 EU Guiding Principles, 2002, at p.4.
208 EU Guiding Principles, 2002, at p.4.
209 EU Guiding Principles, 2002, at p.5.
210 Statement by the Presidency on behalf of the European Union on reaffirming the EU position supporting the integrity
of the Rome Statute, Brussels 27.07.2004 (11680/04 (Presse 235)). See also, Declaration by the Presidency on behalf of the
European Union on the Nethercutt amendment, Brussels, 10.12.2004 (15864/1/04 REV 1 (Presse 353)).
211 Telephone interview #11 with former representative of global NGO with experience as a successful EIDHR applicant,
14.02.2014.
212 Weisman, 2006.
213 Presidential  Memorandum – Certification Concerning  U.S.  Participation  in  the  United  National  Multidimensional
Integrated Stabilization Mission in Mali Consistent with Section 2005 of the American Servicemembers’ Protection Act,
US White House 31.01.2014.

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Despite  recent  developments,  during  the  Obama  administration,  there  has  been  some  positive  re-
engagement by the US, albeit short of ratification. For instance, the commitment to arrest Joseph Kony(214),
the expansion of the War Crimes Rewards Programme to include ICC indictees(215) as well as the assistance
provided with regard to the transfer of ICC indictee Bosco Ntaganda to the ICC after the latter surrendered at
the US embassy in Kigali(216), all pointed to improvement in the ICC-US relationship.

Whereas solidarity in the EU resolve to protect the integrity of the Statute was demonstrated in the context
of the BIAs, it appears to have been invisible in the context of measures pursued by the US in the UN Security
Council  to  undermine  the  integrity  of  the  Statute.  In  2002,  the  US  successfully  negotiated  the  adoption  of
Security Council Resolution 1422, adopted under Chapter VII of the UN Charter and pursuant to Article 16 of
the  Rome  Statute(217).  This  Resolution  excluded  from  the  jurisdiction  of  the  Court  acts  or  omissions  by
officials  or  personnel  on  UN  established  or  authorised  peacekeeping  missions  who  are  nationals  of  non-
State Parties to the Rome Statute. In doing so, the US had effectively secured immunity from prosecution for
any US national serving in UN authorised peacekeeping operations.

What was particularly concerning from the perspective of the EU’s commitment to preserving the integrity
of  the  Statute  was  the  failure  of  a  single  EU  state  sitting  on  the  Security  Council  to  demonstrate  its
disapproval of the deferral – either by voting against the Resolution, or even abstaining from the vote, with
the Resolution being adopted unanimously. Indeed, the UK – in collaboration with Mauritius – attempted to
introduce  an  amendment  to  the  draft  text  of  the  Resolution  that  would  have  expressed  the  Security
Council’s ‘intention to renew such a request on a case-by-case basis for a further twelve month period for as
long  as  may  be  necessary’(218).  In  addition  to  France  and  the  UK,  which  as  permanent  members  of  the
Security  Council  had  the  power  to  veto  the  Resolution,  the  Republic  of  Ireland  was  sitting  as  a  non-
permanent member(219). While statements were made in the open debate of the draft Resolution opposing
adoption by France, Germany, Ireland and The Netherlands, the Danish statement made on behalf of the EU
failed  to  condemn  the  Resolution(220).  Despite  this,  the  Resolution  was  passed  unanimously,  and  was
renewed  the  following  year  for  another  12  months  by  Resolution  1487 – this  time  with  three  abstentions,
two of which by EU states, France and Germany(221). Statements in opposition to the Resolution were made
by Greece on behalf of the EU, and separate statements by Germany, France and the Netherlands(222).

The EU and its Member States were placed in a particularly difficult position. In June 2002, the US had vetoed
a  Resolution  to  extend  the  mandate  of  the  UN  Mission  in  Bosnia  and  Herzegovina,  explaining  that  the  US
was unprepared to place US-national peacekeeping personnel ‘at risk’ from the ICC’s jurisdiction over Bosnia
and Herzegovina after its ratification of the Rome Statute earlier that year(223). While another draft Resolution
to  extend  the  mandate  was  subsequently  adopted,  those  concerned  with  preserving  the  integrity  of  the
Statute were faced with a dilemma; on one hand, they were faced by the attempts of one state to undermine
the  integrity  of  the  Statute  by  carving  out  immunity  for  certain  individuals,  on  the  other  they  were  faced
with  the  prospect  of  ending  a  vital  UN  peacekeeping  mission  with  potential  implications  for  international
peace and security in the region. As recent history in the Balkans region had so devastatingly demonstrated,

214‘Text of a Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of
the Senate’ White House Office of the Press Secretary 14.10.2011.
215 Enhancement of State Department Rewards Programme, Office of the Spokesperson, Washington, DC, 16.01.2013 .
216 Daily Press Briefing –18.03. 2013, Washington, DC, 18.03.2013.
217 UN SC Res 1422.
218 Draft Proposal by Mauritius, CICC, 2004 at p.17.
219 Indeed, accounts of the negotiation of resolution 1422 suggest that while France criticised the US proposal, the UK
actively supported it, providing the US with political support to obtain the resolution by unanimity. See CICC, 2004 at p.v.
220 UN Security Council, Press Release 10.07.2002.
221 UN SC Res 1487 (12 June 2003) UN Doc S/RES/1487.
222 UN Security Council Council, Press Release, 12.06.2003.
223 UN Security Council, Press Release, 30.06.2002.

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Policy Department DG External Policies

the risk that crimes within the jurisdiction of the Court could be committed if that breakdown of peace and
security occurred was only too real.

It was only due to the diplomatic fallout caused by the revelations of the now notorious prisoner abuse by
US forces at Abu Ghraib in Iraq that the US was forced to abandon further renewal of the deferral in 2004.

EU and UN Security Council-ICC Relations

The EU and its Member States have been active in the UN Security Council on matters concerning the ability
of the Security Council to refer situations to the ICC involving non-State Parties to the Statute. As Part One
explained,  the  UN  Security  Council  has  made  two  such  referrals;  one  of  the  situation  in  Darfur  in  2005  by
Resolution 1593, and the second in 2011, referring the situation in Libya by Resolution 1970. The adoption of
Resolution  1593,  with  four  abstentions,  including  of  China  and  the  US,  and  later in  2011,  the  unanimous
adoption  of  Resolution  1970,  on  the  face  of  it,  represent  significant  milestones  of  the  acceptance  of  the
value  and  legitimacy  of  the  ICC,  even  by  non-State  Parties.  The  adoption  of  both  Resolutions  represented
significant successes for EU  Member States, who had  worked hard to raise support  in the Council for both
referrals.

At  the  same  time  however,  a  study  of  the  terms  of  those  Resolutions  and  the  level  of  support  that  the
Security  Council  has  been  willing  to  provide  the  ICC  after  having  made  the  initial  referrals  suggests  that
there  is  room  for  improvement.  One  of  the  most  problematic  clauses  in  both  referral  Resolutions  is  the
express decision to exclude the UN from bearing any of the expenses incurred by the Court in relation to the
referral(224). These provisions undermine the Rome Statute, which under Article 115(b) envisages that the UN
will provide funds in relation to the expenses incurred as a result of referrals made by the Security Council.
Furthermore,  the  preambular  paragraphs  to  both  Resolutions  emphasise  the  existence  of  BIAs.  More
generally, it has been observed that once a referral has been made by the Council, it has not followed it up
with  sustained  political  and  technical  support  to  the  Court.  The  Security  Council  has rarely  responded  to
instances of non-cooperation with the Court in regards to proceedings arising out of referral situations, and
where  it  has  reminded  states  of  their  obligations  to  cooperate  with  the  Court  or  comply  with  the  Security
Council resolutions referring the situations, it has done so with little force(225).

In order to be credible, the ICC needs to be effective in fulfilling its mandate. In order to do that, it needs the
necessary resources – whether that is financial, political or technical support. As has already been stated and
will  be  discussed  in  more  detail  in  section  9,  the  ICC  relies  upon  the  cooperation  of  states  and  other
international actors in order to function. In its 2011 resolution on the EU’s support for the ICC, the European
Parliament  has  raised  the  matter  of  the  support  the  Security  Council  provides  the  Court  in  respect  of
situations it has referred(226). At paragraph 47, the Parliament called

on the UN Security Council members and the UN General Assembly members to find appropriate ways and
means for the UN to provide the Court with financial resources to cover the costs related to the opening of
investigations  and  prosecutions  into  situations  referred  by  the  UN  Security  Council  in  accordance  with
Article 115 of the Rome Statute.

Further, in the report accompanying the resolution, the Parliament criticised the Security Council’s failure to
provide the necessary financial support to accompany the referrals(227).

One  area  where  the  EU  has  been  successful  in  promoting  the  integrity  of  the  Statute  in  the  course  of  the
proceedings  of  the  UN  Security  Council  has  been  on  the  matter  of  the  Council’s  power  to  defer  ICC
proceedings  pursuant  to  Article  16  of  the  Rome  Statute.  This  provision  acknowledges  the  power  of  the
Security Council, acting under its Chapter VII mandate, to determine that a deferral of specific proceedings

224 UNSC Res 1593 (31.03.2005) UN Doc S/RES/1593, at para.7; UNSC Res 1970 (26.02.2011) UN Doc S/RES/1970, at para.8.
225 Statement by the President of the Council (16.06.2008) UN Doc S/PRST/2008/21.
226 European Parliament resolution P7_TA(2011)0507.
227 Report of the Committee on Foreign Affairs (A7-0368/2011) at p.16.

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of the ICC for one year is necessary for the maintenance of international peace and security (228). This power
is  renewable,  and  accordingly,  the  deferral  could  be  renewed  on an  annual  basis  if  the  Security  Council
deemed  it  necessary(229).  Article  16  threatens  the  integrity  of  the  Statute  since  it  introduces  the  possibility
that a political decision making process will influence a judicial process. In order to promote the integrity of
the  Statute,  one  measure  indicated  by  the  2011  Plan  of  Action  includes  the  monitoring  of  situations
regarding the possible invocation of Article 16 by the Security Council(230). EU states have worked effectively
to  encourage  the  Security  Council  to  resist  calls  for  it  to  defer  ICC  proceedings  in  the  context  of  its
investigations  into  the  situations  in  Darfur  and  Kenya(231).  For  further  discussion  of  the  EU  involvement  in
these situations, see the case study in Part Three, section 12 on how the EU has responded to the situation
arising from the relationship between certain African states and the African Union and the ICC.

7.3.2

Financial

Once  again,  the  EU’s  funding  of  NGOs  and  CSOs  through  the  EIDHR  has  enabled  those  organisations  to
pursue campaigns and initiatives designed to promote the integrity of the Rome Statute. For example, the
CICC,  comprising  of  a  coalition  of  NGOs  ran  sustained  political  campaigns  mobilising  opinion  against  US
efforts to undermine the integrity of the Court(232).

7.4

7.4.1

7.4.2

8.

8.1

Recommendations

Member States



EU







Where  possible, EU  Member  States sitting  on  the  UN  Security  Council,  should  aim  to
adopt a united front to protect the integrity of the Rome Statute.

All  EU  institutions should  continue  to  support  the  integrity  of  the  Statute  through
primarily political means;
The EEAS, the High Representative and the Council should continue to monitor the US-
ICC relationship for any possible escalation;
Continue  to  support  financially  organisations  engaging  in  campaigns  and  initiatives  to
promote the integrity of the Rome Statute.

INDEPENDENCE, AND EFFICIENCY AND EFFECTIVENESS

General Discussion

8.1.1

Independence

The previous section focussed upon the measures that the EU and its Member States have and could take in
order  to  preserve  the  values  and  principles  that  lie  at  the  core  of  the  Rome  Statute  system  and  which  are
pursued by the Court when carrying out its activities. Whereas the previous section was concerned with the
efforts  to  pursue  the  integrity  of  the  Rome  Statue system as  a  whole,  the  focus  of  this objective  is  upon
preserving the integrity of the Court.

A Court’s independence is one, if not the defining and distinguishing feature of a justice system operating in
accordance with the rule of law. The independence of the ICC was an issue that was fought long and hard
over  during  the  negotiations  of  the  Rome  Statute.  On  one  hand,  the  Like-Minded  Group,  comprised  of  an
alliance of states and NGOs, negotiated for a strong and fully independent Court, free from the influence or

228 Article 16, Rome Statute.
229 Article 16, Rome Statute.
230 Action Plan, 2011, at p.11.
231 UN Security Council, Press Release 15.11.2013.
232 See, for details http://www.iccnow.org/?mod=bia .

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Policy Department DG External Policies

supervision  of  any  particular  state,  group  of  states,  or  political  body,  such  as  the  UN  Security  Council.  EU
states dominated this group, with 13 EU Member States and 13 states that have since joined the EU, pushing
for an independent Court and an independent Prosecutor, free to investigate any alleged crime within the
Court’s  jurisdiction  without  the  need  for  prior  consent  by  a  political  actor – state  or  institution(233).  In
contrast,  other  states  were  far  more  reluctant  and  remained  (and  continue  to  remain)  fearful  of  the
implications of a fully independent and impartial Prosecutor, able to freely determine (within the parameters
of the Court’s jurisdiction) where, who and what the Court should pay attention to.

The independence of the Court and its organs permeates the entire Rome Statute – from the preamble(234),
to  the  obligations  imposed  upon  judges  to  ensure  their  independence(235).  Not  only  is  the  Office  of  the
Prosecutor (‘OTP’) independent from outside actors, but it is also independent from the other organs of the
Court(236).  At  the same  time,  there  are  concessions – the  power  of  the  Security  Council  to  refer  situations
involving non-State Parties under Article 13(b) of the Statute, and its power to defer or suspend proceedings
for up to a year are two areas in which the independence of the Court is qualified. While Article 13(b) of the
Rome  Statute  opens  up  the  possibility  that  the  Court  may  exercise  jurisdiction  over  non-State  Parties,  the
question  of  when  that  jurisdiction  may  be  invoked  is  subject  to  the  high  politics  of  UN  Security  Council
decision making.

Equally  important  as  actual  independence,  is  the  perceived  independence;  the  Court  and  its  organs  must
both be independent and be seen to be independent. The legitimacy of the ICC – the degree to which it, its
investigations  and trials,  and  its  decisions,  are  accepted  by  those  subject  to  its  jurisdiction – depends  to  a
large  extent  upon  the  degree  to  which  the  Court  is  perceived  to  be  independent(237).  Challenges  to  the
Court’s legitimacy in recent years demonstrate the role that independence plays in the course of promoting
the universality and integrity of the Statute and cooperation with the Court. Critics of the Court frequently
raise the perception of bias to justify their action in respect to the Court – most frequently accusations that
the Court is biased and is the instrument of western states or powerful actors, including states not party to
the Statute. The case study on the relationship between some African states and the African Union and the
ICC  in  Part  Three,  section  12,  will  examine  in  more  detail  how  these  allegations  of  bias  have  affected  the
effectiveness of the Court.

Having  successfully  fought  to  establish  an  institutionally  independent  ICC,  the  EU  and  its  Member  States
must  remain  equally  committed  to  ensuring  that  the  Court  continues  to  be  independent  and  appear
independent.  To  do  so  is  essential  to  preserving  the  ICC’s  integrity  and  universality.  The  crucial  question,
however,  is  how  the  EU  and  its  Member  States  should  deliver  their  commitment  to  the  Court’s
independence while at the same time preserving its autonomy. While the EU and its Member States provide
invaluable  support  to  the  ICC,  they  must  take  care  to  ensure  that  that  support  does  not  unintentionally
undermine that very independence. If the Court appears, or becomes disproportionately close to (or reliant
upon) the political and  financial support of one particular group of states or international actor,  this  could
bear consequences for the credibility and legitimacy of the ICC as an independent and universal Court(238).

The task for the EU, as one of the Rome Statute’s staunchest proponents can thus be properly understood as
on one hand continuing to support and strengthen the system of international criminal justice embodied by
the Rome Statute, but on the other, while providing the Court with that cooperation and assistance needed
to fulfil its mandate, to reinforce the Court’s integrity and its autonomy.

233 Austria,  Belgium,  Bulgaria,  Croatia,  Czech  Republic,  Denmark,  Estonia,  Finland,  Germany,  Greece,  Hungary,  Ireland,
Italy,  Latvia,  Lithuania,  Luxembourg,  Malta,  the  Netherlands,  Poland,  Portugal,  Romania,  Slovakia,  Slovenia,  Spain,
Sweden, and the UK. For the full list, see Schabas, 2001 at p.15.
234 Preambular paragraph 9, Rome Statute.
235 Article 40 Rome Statute.
236 Article 42(1) Rome Statute.
237 Cassese, 2012, at pp.492-493.
238 Telephone  interview  #03  with global  NGO  representative  with  experience  as  a capacity  builder,  a  successful  EIDHR
applicant and as an ICC consultant, 03.02.2014.; Telephone interview #10 with ICC official, 13.02.2014.

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8.1.2

Effectiveness and Efficiency

The  reason  why  any  actor – State  Party,  international  institution,  non-governmental  organisation – lends
support  to  the  ICC,  is  so  as  to  enable  it  to  be  effective  in  the  fulfilment  of  its  mandate.  By  pursuing  the
universality of the Statute and preserving its integrity, and by encouraging cooperation with the Court and
implementing the principle of complementarity, these actors are contributing not only to the effectiveness
and efficiency of the ICC specifically, but the effectiveness and efficiency of the Rome Statute system.

Effectiveness can be measured in any number of possible ways, but in general terms, each seeks to measure
the extent to which the Rome Statute system fulfils its objectives. Whereas section 10 will focus upon how
the implementation of complementarity by the EU and its Member States enhances the effectiveness of the
wider system of international criminal justice, this section will focus upon the effectiveness and efficiency of
the  ICC  in  particular.  Therefore  for  the  purposes  of  this  section,  the  measures  taken  to  promote  the
effectiveness  of  the  ICC  can be  considered  to  be  all  those  measures  that  assist  and  enable  the  Court  to
investigate and prosecute those responsible for the commission of crimes within its jurisdiction – providing
accountability for those responsible, and justice for victims. Further, in order to be an effective deterrent to
prevent the commission of crimes in the future (see Part One, section 3), the Court must demonstrate that it
can and does effectively hold those responsible for crimes within its jurisdiction to account(239).

Effectiveness and efficiency are inextricably linked. The more efficient that the Court is, the more effective it
is,  and  the  more  credible  it  will  be  as  a  deterrent  to  the  commission  of  crimes  in  the  future.  At  a  more
practical level, the ICC is increasingly expected to achieve more with less resources. Not only has the Security
Council  made  two  referrals  to  the  Court  while  at  the  same  time  explicitly  refusing  to  provide  the  financial
support to cover the expense that the Court incurs as a result of those situations (see section 7.3.1.), but the
ASP  has,  on  an  annual  basis,  agreed  upon  cuts  to  the  ICC’s  funding.  In  recent  years,  State  Parties  have
pursued  a  ‘zero  growth  strategy’,  whereby  despite  the  increasing  activity  of  the  Court  in  all  aspects,  the
budget has  not  increased(240). As the EU  and  its Member States are  the ICC’s  biggest providers of financial
and  political  capital,  they  have  a  strong  interest  in  ensuring  that  the  ICC  operates  in  the  most  efficient
manner – making most effective use of the resources available to it. With the continuing effects of the global
financial crisis on states – particularly those within the Union – the EU as a major stakeholder in the ICC also
has a responsibility to its own Member States to ensure that the financial support it provides to the Court is
used  in  the  most  effective  manner(241).  This  means  encouraging  and  supporting  the  Court  to  improve  its
efficiency,  but  at  the  same  time  ensuring  that  the  budget  reductions  or  freezes  do  not  lead  to  resource
shortages that give rise to inefficiencies caused by capacity shortfalls. As was observed, insufficient resources
ultimately  impact  upon  the  ability  of  the  Court  to  effectively  carry  out  the  activities  necessary  in  order  to
deliver upon its mandate under the Statute(242).

While it is necessary for the Court to continue to make efficiency savings in its operation, it is necessary to
consider whether the savings made are sufficient to absorb the cost of the increase in workload and whether
savings  made  are  sustainable.  For  example,  in  the  annual  report  to  the  ASP  on  the  Court’s  progress
regarding  efficiency  measures,  it  was  noted  how  the  pressure  to  make  efficiency  savings  was  resulting  at
times  in  the  adoption  of  short  term  cost-saving  measures – such  as  leaving  necessary  vacant posts
unfilled(243),  and  replacing  them  with  ‘extra-budgetary’  appointments(244).  Not  only  was  this  under-

239 Telephone interview #09 with EU official, 07.02.2014.
240 CICC, 20.11.2011.
241 Telephone interview #09 with EU official, 07.02.2014.
242 Telephone interview #10 with ICC official, 13.02.2014.
243 Eighth  Status  Report  on  the  Court’s  progress  regarding  efficiency  measures,  4.06.2013  (ICC-ASP/12/16)  at  para.  8-9
(hereafter ‘ASP, Eighth Status Report on Efficiency’).
244 Informal interview with ICC Official.

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resourcing  unsustainable  in  the  long  term,  but  by  placing  an  increased  strain  on  existing  staff,  this  was
negatively affecting the quality of output(245).

Article 3 of the 2011 Decision states:

In order to support the independence of the ICC, the Union and its Member States shall, in particular:

a)

b)

c)

Encourage  States  Parties  to  transfer  promptly  and  in  full  their  assessed  contributions  in  accordance
with the decisions taken by the Assembly of States Parties;
Make  every  effort  towards  the  accession  or  ratification  by  Member  States  of  the  Agreement  on  the
Privileges and Immunities of the International Criminal Court as soon as possible and promote such
accession or ratification by other States; and
Endeavour  to  support  as  appropriate  the  development  of  training  and  assistance  for  judges,
prosecutors, officials and counsel in work related to the ICC.

Further on the effectiveness of the ICC, Article 4(3) of the 2011 Decision directs the EU and its Member States
to ‘[c]onsider the conclusion, as appropriate, of ad hoc arrangements and agreements to enable the effective
functioning of the ICC and shall encourage third parties to do so.’

While the 2011 Decision focuses on the role that training and assistance plays in ensuring the independence
of the ICC, this form of support can also promote the effectiveness and efficiency. By increasing the capacity
and competency of those working with and for the ICC, this can directly lead to efficiency and effectiveness
gains.

Against this backdrop, the following sections will examine what measures Member States and the Union can
take to strengthen the independence of the Court and to enhance its efficiency and effectiveness.

8.2

Member States

The relationship between the State Parties and the ICC with regard to the Court’s independence is a difficult
one. On one hand, the Court is expected to act independently of states(246), but at the same time, in order to
pursue its functions, it relies on their cooperation(247). In addition, the Rome Statute entrusts to State Parties
the responsibility of establishing and operating a system that ensures the transparent selection, nomination
and election procedures for ICC judges and prosecutors(248).

The  2011  Action  Plan  stipulates  that Member  States  should  continue  to  encourage  the  establishment  of
transparent selection, nomination and election procedures for ICC judges and prosecutors. They should also
make every possible effort to ensure that highly qualified candidates are nominated for positions to be filled
through elections...(249).

Therefore,  besides  transparency,  the  Action  Plan  incorporates  a  qualitative  element  for  Member  States  to
take into account when considering candidates for elected posts. This emphasis on qualified candidates is to
be further encouraged in order for the ICC to be a successful institution. The perception that some Member
States  put  national  interests  above  the  quality  of  the  candidate,  as  well  as  the  potential  election  of  such
candidates, would be detrimental to the Court(250).

245 ASP, Eighth Status Report on Efficiency, at para.8-9.
246 As an ICC official put it: ‘Leave the Court to the Court’. Telephone interview #01 with ICC Official, 03.02.2014.
247 For this reason, another ICC Official stated that he believed that the prevailing thinking within the Court was that it
cannot afford to tell States Parties to ‘leave the Court to the Court’ for to do so would antagonise them and make their
cooperation and full support less likely. Telephone interview #10 with ICC official, 13.02.2014.
248 Articles 36 and 42 Rome Statute and Article 42.
249 Action Plan, 2011, at p.12.
250Telephone  interview  #08  with  global  NGO  representative    with  experience  working  with  a  local  NGO  and  also  an
unsuccessful EIDHR applicant, 06.02.2014.

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Additionally,  political  interventions  or  statements  that  Member  States  may  make  concerning  ongoing
situations  that  are  subject  to  investigation  by  the  Court,  may  further  impact  its  effectiveness.  The  ICC,  like
any  legal  institution,  does  not  operate  in  a  vacuum – it  operates  alongside  a  host  of  local,  regional  and
international  actors,  each  often  with  overlapping,  and  sometimes  even  conflicting,  objectives.  The  ICC
frequently operates in situations of ongoing insecurity, instability – even outright conflict. Therefore, when
balancing the equation between peace and justice, EU Member States must remain alert to the implications
that their actions may have on the work of the ICC, particularly in the context of peace negotiations(251).

Finally,  while  continuing  to  strengthen  the  support  that  they  provided  to  the  ICC,  the  EU  and  its  Member
States can play an important role in encouraging others to participate and take ownership of the Court. The
EU  should  engage with  other  stakeholders  in  the  Court  in  order  to  strengthen  and  improve  the  Court’s
efficiency and effectiveness. In doing so, this can enhance confidence among those who might question the
Court’s independence. The EU Member States should support and welcome the initiative of all State Parties
to  exercise  their  rightful  ownership  of  the  Court,  to  the  extent  that  they  do  not  undermine  its  integrity.
Although the implications of it are yet to be seen, one such example of this cooperation might be how the
EU Member States negotiated with states from the African Union at the 12th meeting of the ASP in order to
adopt amendments to the RPE that could expedite trial proceedings in cases concerning accused individuals
who hold positions of high office (for more detailed discussion, see Part Three, section 12)(252).

8.3

8.3.1

The EU as a Global Actor

Political

EU institutions have been vocal proponents of the independence of the ICC. The European Parliament, in its
resolutions,  has  reiterated  both  the  actual  independence  of  the Court  and  the  importance  of  maintaining
that independence – both for the effectiveness of the Court and also in order to promote its universality(253).
The High Representative has also underscored the independence of the ICC, in statements made responding
to developments in the Court’s activities, such as upon the announcement of the three arrest warrants in the
Libya investigation(254).

In the statement by Cyprus on behalf of the EU at the 2012 Assembly of States Parties, it was stated that a
key  challenge  is – and  has  been  from  the  very  beginning – how  to  best  protect  the  independence  of  the
Court and support its effective and efficient functioning. This means also both that the Court is sufficiently
funded and that existing funds are wisely spent. Since the creation of the ICC, EU Member States have been
among its major contributors and the EU has provided additional direct and indirect financial support to the
Court. In the current dire international economic and financial  conditions, the Court’s activities  have  to be
based  on  careful  financial  assessments,  taking  into  account  what  the  States  can  provide.  Also,  let  us  not
forget:  funds  alone  are  not  enough  to  guarantee  the  effectiveness  and  efficiency  of  the  Court.  With  the
number  of  situations  and  cases  increasing,  we  see  a  need  for  additional  efforts  from  the  Court  to  further
prioritise  its  work  and  improve  its  procedures,  so  that  it  can  continue  to  perform  successfully  its  judicial
mandate  as  set  out  in  the  Rome  Statute.  In  this  regard,  we  commend  the  Court in  working  with  States  to
commence a review of the ICC criminal procedures(255).

251 Telephone interview #01 with ICC Official, 03.02.2014.
252 However, this approach has also been the subject of criticism, with one ICC Official stating that the readiness of some
EU  Member  States  to  accept  amendments  to  the  RPE  in  order  to  appease  the  Kenyan  government  was  concerning.
Telephone interview #10 with ICC official, 13.02.2014.
253 European Parliament resolution P7_TA(2011)0507, preambular paragraph E.
254 Declaration by the High Representative on behalf of the European Union following the ICC decision concerning the
arrest  warrants  for  Muammar  Abu  Minya  Gaddafi,  Saif  Al  Islam  Gaddafi  and  Abdullah  al  Sanousi,  Brussels  27.06.2011
(12166/2/11 Rev 2 (Presse 206)).
255 Statement by Mr Andrius Krivas, Vice-Minister of Foreign Affairs of the Republic of Lithuania on behalf of the European
Union and its Member State,  The Hague, 20.11.2013.

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As this statement indicates, the EU takes an active interest in ensuring that the Court is capitalising upon the
support  provided  by  the  EU  and  its  Member  States  in  the  most  efficient  and  effective  manner.  One  of  the
interviewees felt that it was within the rights of the EU as one of the Court’s largest funders to scrutinise the
Court’s  efficiency(256),  whereas  another  exclaimed,  when  asked  on  this  point,  ‘don’t  micro-manage’(257).
Examples  of  areas  where  such  ‘micro-management’  has  been  felt  include  the  Independent  Oversight
Mechanism and in some aspects of the operation of the Committee on Budget and Finance(258).

As has already been referred to, the Court engages in a continual process to improve efficiency. In addition,
the Registry is currently undergoing a process of internal review, which is likely to lead to reform(259).

8.3.2

Financial

Through  the  provision  of  financial  assistance,  the  EU  has  funded  a  number  of  initiatives  that  have
contributed  to  the  effectiveness  and  efficiency  of  the  Court  and  its  administration  of  justice.  Funding
through the EIDHR to the ICC’s ‘Trust Fund: Building Legal Expertise and Fostering Cooperation’, has recently
enabled the Court to host a number of training seminars(260). First, the Tenth Seminar of Counsel, along with
its  accompanying  training  sessions  in  October  2012  provided  an  opportunity  for  legal  representatives
working before the Court to ‘engage in a mutually beneficial dialogue to learn from colleagues’ experiences
and perspectives’(261). By also including participants working in national jurisdictions from around the world,
these  seminars  contributed  to  knowledge  transfer  and  capacity  building  to  facilitate  the  effective
implementation  of  the  principle  of  complementarity(262).  The  accompanying  three  day  practical  training
sessions  focussed  on  ‘procedural  and  practical  issues  facing  counsel  representing  the  defence  or  victims
before the Court’(263). By enhancing the experience and expertise of counsel, the highest standards of justice
are  delivered  by  the  Court.  This  is  achieved  by  ensuring  that  all  participating  in  the  judicial  process  are
provided with high quality legal representation. By developing expertise as to the procedural regime at the
Court,  the efficiency of the judicial  proceedings is  improved by ensuring  that all  those participating in  the
judicial process are knowledgeable about the requirements of the procedural regime. This can help expedite
proceedings by reducing inefficiencies created by inexperience or a lack of knowledge or understanding.

Second,  the  Court  hosted  two  Seminars  for  Fostering  Cooperation in  Nuremberg,  Germany  in  March  and
June 2013, one for Anglophone participants and one for Francophone participants(264). Aimed at increasing
support for and cooperation with the Court by enhancing knowledge about the cooperation regime, these
seminars  targeted  ‘high  level  decision  makers  from  strategically  important  countries’,  including  situation
countries(265).  Focussing  on  technical  aspects  of  cooperation  including  the  implementation  of  arrest
warrants, evidence collection, the tracing and freezing of assets and witness protection, to name a few, these
seminars were designed to directly enhance the efficiency and effectiveness of the Court’s proceedings. This
is by enhancing  the efficiency and effectiveness of  the cooperation by State Parties upon which the  Court
relies.  In  addition,  the  three  additional  Witness  Protection  Agreements  entered  into  by  states  having
attended  the  seminars  in  turn  also  enhance  the  effectiveness  and  efficiency  by  which  the  Court  can
discharge its duties to witnesses that cooperate with the Court ensuring their safety and security (see section
9.2.1).

256 Telephone interview #07 with representative of a non-EU Member State, ICC State Party (GRULAC Group), 06.02.2014.
257 Telephone interview #05 with ICC Official, 04.02.2014.
258 Telephone  interview  #01  with  ICC  Official,  03.02.2014;  Telephone  interview  #10  with  ICC  official,  13.02.2014;
Telephone interview #05 with ICC Official, 04.02.2014.
259 Telephone interview #05 with ICC Official, 04.02.2014.
260 Financial  Report,  Trust  Fund:  Building  Legal  Expertise  and  Fostering  Cooperation,  Period:  01.08.2012 – 31.07.2013,
Project EIDHR/2012/292-809, (on file with the author) at pp.3-4 (hereafter ‘ICC, Financial Report’).
261 ICC, Financial Report at p.3; Telephone interview #12 with global NGO representative, 19.02.2014.
262 ICC, Financial Report  at p.4.
263 ICC, Financial Report at p.4.
264 ICC, Financial Report at pp.4-5.
265 ICC, Financial Report at p.4.

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8.4

8.4.1

8.4.2

Recommendations

Member States



EU







Member  States should  ensure  that  highly  qualified  candidates  are  nominated  for  all
elected ICC posts.

The High Representative, the EEAS and the Council should continue to provide political
support  of  the  ICC’s  independence,  effectiveness  and  efficiency  through  appropriate
statements, demarches and communications;
Through  the EIDHR,  the  EU  should  continue  to  financially  support  the  ICC’s  Trust  Fund:
Building Legal Expertise and Fostering Cooperation;
Continue to monitor the implementation of the ICC’s initiatives to increase efficiency and
effectiveness, while at the same time respecting the Court as an independent institution.

9.

9.1

COOPERATION

General discussion

Throughout  this  study,  emphasis  has  been  placed  upon  the  reliance  by  the  Court  on  state  cooperation.
When  a  state  is  unwilling  or  unable  to  conduct  its  own  investigations  and  prosecutions,  requiring  the
intervention of the ICC to ensure accountability, the ICC relies upon the cooperation of all states as well as
international  organisations  in  order  to  conduct  its  proceedings.  Without  cooperation,  the  OTP  would  be
unable to conduct investigations and collect evidence(266), nor would it be able to secure the attendance of
the accused in order to conduct their trials. The Rome Statute does not permit trials in absentia, that is trials
without  the  accused’s  presence,  therefore  in  order  to  secure  attendance,  it  is  necessary  to  obtain  the
individual’s compliance with a summonses or to secure the implementation of a warrant for the arrest of the
individual  and  their  surrender to  the  Court.  Cooperation  ensures  the  ability  of  witnesses  to  work  with  the
Court, attend proceedings to provide evidence, and to do so in the knowledge that their personal safety and
that  of  their  family  is  ensured  against  those  who  may  seek  recrimination for  their  cooperation  with  the
Court.  Where  a  conviction  is  found  and  a  sentence  passed,  without  the  cooperation  of  states,  the  Court
would have no facility in which to detain its convicts to serve their sentence.

Part 9 of the Rome Statute identifies the nature of the obligations upon State Parties to the Rome Statute to
cooperate with the Court. The general statement of the obligation to cooperate can be found in Article 86 of
the  Rome  Statute – which  states  that  State  Parties  shall  ‘cooperate  fully  with the  Court  in  its  investigation
and  prosecution  of  crimes  within  the  jurisdiction  of  the  Court’.  In  order  to  enable  them  to  do  so,  they  are
under a duty to ‘ensure that there are procedures available under their national law’ to facilitate all forms of
cooperation’(267). Article 93(1) of the Rome Statute elaborates in more detail upon the types of assistance and
cooperation  that  are  expected  of  State  Parties  when  requested  to  cooperate  by  the  Court.  In  addition  to
specific obligations of cooperation imposed by the Statute – including in respect of the arrest or surrender,
detention and transfer to the custody of the Court(268) – the Statute also stipulates that any ‘person required

266 In  this  respect,  it  may  be  worth  noting  an  inter-governmental  initiative,  ‘Justice  Rapid  Response’,  that  provides  a
‘stand  by  roster  of  active  duty  criminal  justice  and  related  professionals  who  have  received  specific  training  in
international  investigations’  with  a  view  to  collecting  evidence  that  may  later  assist  legal  proceedings.  A  number  of
European states participate in the initiative, with the Netherlands, Finland and Sweden currently sitting on the Executive
Board. See Justice Rapid Response Fact Sheet 2014.
267 Article 88 Rome Statute.
268 Article 59 Rome Statute.

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to  be  present  at  the  seat  of  the  Court  shall  be  accorded  such  treatment  as  is  necessary  for  the  proper
functioning of the Court, in accordance with the privileges and immunities of the Court’(269).

In 2013, in its annual report to the ASP on cooperation with the Court, the Bureau of the ASP identified four
areas of priority with regard to the matter of cooperation.270 These are:







The execution of arrest warrants;
The issue of ‘non-essential contacts’ with individuals subject to an ICC arrest warrant;
The  conclusion  of  voluntary  agreements  with  the  Court  regarding  specific  forms  of  cooperation;
including that concerning the protection and, where necessary, the relocation of witnesses;
Ratification of the Statute on Privileges and Immunities.

It was noted that cooperation by states with regard to the arrest and surrender of those subject to a warrant
for  arrest  ‘continues  to  be  a  missing  component  for  the  effective  implementation  of  the  Court’s
mandate’(271). Related to this is the matter of non-essential contacts with indicted persons – namely ensuring
that  minimal  contact  is  made  between  State Parties  to  the  Rome  Statute  and  those  subject  to  an  arrest
warrant while the warrant for their arrest is outstanding. The UN, in order to ensure that it refrains from ‘any
actions  that  would  frustrate  the  activities  of  the  Court  and  its  various  organs,  including  the  Prosecutor,  or
undermines  the  authority  of  their  decisions’,  has  adopted  a  set  of  guidelines  to  determine  when  the
Secretariat  (including  Secretariat  units  and  offices,  programmes  and  funds)  can  and  cannot  engage  in
contacts with persons subject to ICC proceedings(272). As the rationale for the guidelines provided by the UN
Secretary  General  suggests,  non-essential  contact  with  indicted  persons  can  serve  to  undermine  the
integrity  of  the  Court  (see  section  7).  At  the  ASP  meeting  in  November  2013,  it  was  noted  that  there  are
currently negotiations within the ASP to establish a similar policy within the ASP to assist State Parties fulfil
their obligations under the Statute(273).

The  Bureau  has  explained  the  implications  of  non-cooperation  upon  the  integrity  of  the  Statute  and  the
Court’s  effectiveness,  stating  that  failures  to  arrest  these  individuals  emboldens  them  and  potential  future
perpetrators, and fuels the perception that they can remain beyond the reach of the Court and perpetrators
can continue to commit crimes with impunity. These risk weakening the Rome Statute system and the Court
in particular, undermining its credibility(274).

In  addition  to  compliance  with  the  minimum  cooperation  obligations  contained  within  the  Statute,  the
Statute enables the Court to enter into agreements with other international actors – such as international or
regional  organisations  and  institutions – in  order  to  facilitate  additional  forms  of  cooperation(275).  For
example,  as  will  be  discussed  in  section  9.3.3.,  the  EU  has  entered  into  two  Agreements  with  the  Court  to
enable it to extend certain forms of cooperation to the Court.

As  has  already  been  explained  in  section  5,  full  implementation  of  the  Statute,  including  its  ancillary
instruments  such  as  the  APIC  is  necessary  in  order  to  facilitate  full  and  effective  cooperation  between  the
Court and thus enable it to be effective(276). While all EU Member States have ratified the APIC, in total, only
72 out of 122 State Parties to the Rome Statute have done so.

269 Article 48(4) Rome Statute.
270 Report of the Bureau on Cooperation, 21.10.2013 (ICC-ASP/12/36) (hereafter ‘ASP, Bureau Cooperation Report’).
271 ASP, Bureau Cooperation Report, at para.12.
272 Identical letters dated 3.04.2013 from the Secretary General addressed to the President of the General Assembly and
the President of the Security Council (A/67/828-A/2013/210) 8.04.2010, Annex: Guidance on contacts with persons who
are subject of arrest warrants or summonses by the International Criminal Court, at p.3.
273 ASP, Bureau Cooperation Report, at para.10.
274 ASP, Bureau Cooperation Report, at para.14.
275 Article 54(3)(d) Rome Statute.
276 Telephone  interview  #03  with global  NGO  representative  with experience  as  a capacity  builder,  a  successful  EIDHR
applicant and as an ICC consultant, 03.02.2014.

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One  particular area  requiring  greater  cooperation  by  states  concerns  the  Court’s  provision  of  appropriate
witness protection for those who assist the Court in fulfilling its mandate. While the APIC, if ratified, obliges
State  Parties  to  guarantee  a  certain  level  of  protection  to  those  individuals  cooperating  with  the  Court –
such  as  witnesses – it  is  often  necessary  for  State  Parties  and  other  actors  to  enter  into  Framework
Agreements with the Court to facilitate greater cooperation in matters concerning witnesses, particular on
issues of a concrete logistical and operational nature.

Given the nature of the crimes concerned, the task of ensuring witness protection and providing appropriate
support  is  extremely  sensitive,  particularly  when  witnesses  remain  in  the  situation country.  Ensuring  their
safety  and  security  and  that  they  have  not  been  interfered  with  is  of  paramount  importance.  However,  in
order to ensure that, the Court – as always – relies upon cooperation by the state to provide that protection
and  implement  its protection  programme.  However,  it  is  likely  that  the  Court  will  encounter  situations  in
which  the  state  concerned  lacks  the  capacity  to  cooperate,  even  if  it  has  the  will  to  do  so.  Recall  that  the
Court’s jurisdiction over a situation can only be exercised if the concerned state is either unwilling or unable
to conduct effective investigations and prosecutions. States that are unable to satisfy the complementarity
requirement  may  not  have  the  institutional  or  other  capacity  to  guarantee  adequate  witness  protection.
Where  the  protection  of  a  witness  cannot  be  guaranteed  in  the  situation  country,  then  the  ICC  witness
protection  programme  requires  that  the  witness  be  relocated.  Only  13  State  Parties  have  entered  into
framework agreements on witness relocation(277), meaning that in the majority of instances where relocation
is necessary, the Court – through the Victims and Witnesses Unit - is required to enter into protracted ad hoc
negotiations with states in order to secure relocation(278). Given the need for swift action with regard to this
matter to ensure the safety and wellbeing of those who work with the Court, the need to improve efficiency
in this area is of paramount concern(279).

As  the  following  sections  will  show  (and  previous  sections  have  already  demonstrated),  the  EU  and  its
Member States have been committed in their cooperation with the Court. However, the EU and its Member
States  are well placed  to enhance  that cooperation in order to improve  the efficiency and effectiveness of
the ICC. The first section will assess concrete measures adopted within the EU in order to enhance the ability
of  EU  Member  States  to  cooperate  with  the  Court.  In  doing  so  it  will  distinguish  between  cooperation
among  Member  States  and  the  ICC,  and  cooperation  between  EU  Member  States  in  order  to  enhance  the
effectiveness and efficiency of their cooperation with the Court. Following that, it will move on to assess how
the EU as an actor supports the ICC and how it might optimise that cooperation.

9.2

9.2.1

Member States

Cooperation between EU Member States and the ICC



General

As was explained in the previous section, EU Member States, as State Parties to the Rome Statute are obliged
to  cooperate  with  the  Court  in  accordance  with  their  obligations  under  the  Rome  Statute.  All  EU  Member
States have  ratified  the  APIC,  and  a  number  of  them  have  entered  into  further ad  hoc or  framework
agreements to facilitate further cooperation. The most obvious is the headquarters agreement between The
Netherlands – the  host  State  for  the  Court - and  the  ICC  pursuant  to  Article  3(2)  of  the  Rome  Statute(280).
Other  forms  of ad  hoc cooperation  agreements  can  relate  to  the  enforcement  of  sentences  and  the
relocation  of  witnesses.  Of  the  eight  states  that  have  entered  into  comprehensive  agreements  on  the

277 Report  of  the  Court  on  cooperation,  9.10.2013  (ICC-ASP/12/35)  at  para.30  (hereafter  ‘ASP,  Report  of  the  Court  on
cooperation’).
278 Telephone interview #05 with ICC Official, 04.02.2014.
279 International Bar Association, July 2013, at pp.35-36.
280 Headquarters Agreement between the International Criminal Court and the Host State, 1.03.2008 (ICC-BD/04-01-08).

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enforcement  of  sentences,  six  are  EU  Member  States(281),  while  a  further  four  have  declared  conditional
agreements (282).

While cooperation by territorial states and their neighbours is one of the most obvious forms of cooperation
with the ICC, the ICC is also the beneficiary of significant support from EU Member States. Of the 21 warrants
of arrest issued by the ICC, 6 have been executed by EU Member States(283). With regard to the execution of
arrest warrants by third states, EU Member States, whether individually or through the Council (see section
9.3.1.),  have  called  upon  third  states  to  fulfil  their  obligations  under  the  Rome  Statute  and  have  issued
statements responding to instances of non-cooperation.

- Witness Protection

Beyond  entering  into  framework  agreements addressing  cooperation  on  matters  relating  to  witness
protection,  EU  Member  States  can  play  an  important  role  in  strengthening  the  capacity  of  third  states –
particularly situation states and their neighbours - to provide the appropriate degree of witness protection.
To this effect, in 2013, under the leadership of Norwegian Ambassador Krutnes, two EU Member States – the
Netherlands  and  Estonia – sponsored  two  high  level  witness  protection  seminars,  one  in  Arusha,  Tanzania
for  Anglophone  countries(284),  and one  in  Dakar,  Senegal  for  Francophone  countries(285).  One  of  the  key
recommendations emerging from the seminars was the need to reinforce bilateral and regional cooperation
in  this  field,  such  as  through  the  establishment  of  a  network  of  experts(286).  Other  participants  stated  that
they would welcome technical assistance from third states and international organisations to develop and
adopt specific policy and legislative mechanisms to improve capacity to provide witness protection(287).

Accordingly, this could constitute an opportunity for the EU and its Member States to utilise their experience
to assist third states in strengthening their capacity in the field of witness protection. The EU and individual
Member  States  provide  significant  financial  and  technical support  to  states  in  the  context  of  wider  justice
sector reforms through initiatives designed to strengthen the rule of law (see section 10). This is a concrete
area that could bring important benefits to the effectiveness and efficiency of the Court. While the adoption
of  Witness  Relocation  Agreements  by  EU  Member  States  would  be  welcome,  to  strengthen  local  and
regional  capacity  so  that  witnesses  can  be  guaranteed  protection  in  their  home  states  or  as  close  to  their
home state as possible, would be preferable. As the Court states

when  relocation  of  witnesses  and  their  families  proves  necessary,  due  account  should  be  given  to  finding
solutions  that,  while  fulfilling  the  strict  safety  requirements,  also  minimize  the  humanitarian  costs  of
geographical distance and change of linguistic and cultural environment(288).

However, in some cases, safety may only be able to be guaranteed by relocating witnesses further afield, and
in such cases, the conclusion of relocation agreements by states, including EU Member States, becomes of
paramount importance.

On  the  point  of  regional  inter-state  and  inter-institutional  cooperation  to  strengthen  the  efficiency  and
effectiveness  of  the  cooperation  that  the  Court  receives,  the  EU  and  its  Member  States  are  well  placed  to

281 Those being Austria, Belgium, Denmark, Finland, Serbia  and the United Kingdom.
282 Those being the Czech Republic, Lithuania, Slovakia, and Spain.
283 Mbarushimana was arrested by French authorities just over a week after the warrant was issued under seal, Bemba
was arrested by Belgian authorities the day after it was issued under seal, and recently three individuals accused to have
committed  offences  against  the  administration  of  justice  were arrested  by  Dutch  (Jean-Jacques  Mangenda  Kabongo),
French (Narcisse Arido), Belgian (Aime Kilolo Musamba) and Fidele Babala Wandu (DRC).
284 Summary  of  the  Arusha  Seminar  on  witness  Protection  (29-30.10.2013),  7.11.2013  (ICC-ASP/12/36/Ad.1)  (hereafter,
‘ASP, Summary of the Arusha Seminar’).
285 ASP, Report of the Court on cooperation, at para.32.
286 ASP, Report of the Court on cooperation, at para.6.
287 ASP, Report of the Court on cooperation, at para.6(d).
288 ASP, Summary of the Arusha Seminar, at para.4.

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share  their  experiences  and  best  practices  regarding  cooperation  between  Member  States  on  matter
relating  to  justice  and  security.  The  following  sub-section  will  examine  some  areas  in  which  cooperation
between EU Member States in the area of police and judicial cooperation on criminal matters can enhance
the effectiveness of the cooperation that EU Member States deliver to the Court. It will identify areas which
have been a  particular success as well as opportunities for strengthening.  Further, it  might indicate where
the  EU  might  share  its  experiences  with  third  states  to  contribute  to  improving  the  effectiveness  of
cooperation by other states.

9.2.2

Cooperation between EU Member States

-

Genocide Network

Council Decision 2002/494/JHA provided  for the establishment of a network of national contact  points for
the  exchange  of  information  concerning  the  investigation  and  prosecution  of  genocide,  crimes  against
humanity and war crimes (‘the Genocide Network’), including but not limited to those within the jurisdiction
of  the ICC(289).  The  function  of  each  contact  point  is  to  exchange  between  Member  States  any  available
information  that  may  be  relevant  to  the  investigation  and  prosecution  of  international  crimes  and  to
facilitate  cooperation  with  competent  national  authorities  within  each  EU  Member  State(290).  In  2003  the
Council adopted another Decision, that stated with even more clarity the objective of the network of contact
points – namely,  ‘to  maximise  the  ability  of  law  enforcement  authorities  in  different  Member  States  to
cooperate  effectively  in  the  field  of  investigation  and  prosecution  of  persons  who  have  committed  or
participated in the commission of genocide, crimes against humanity or war crimes as defined in [the Rome
Statute]’(291).  Developing  upon  this,  the  2003  Decision  placed  an  obligation  upon  EU  Member  States  to
adopt  such  measures  as  are  necessary  to  assist  states  in  identifying  when  individuals  suspected  of  being
responsible for international crimes have applied for, or taken, residence within their jurisdiction(292). It also
obliged  EU  Member  States  to  assist  one  another  in  the  course  of  their  investigations  and  coordinate  their
efforts in this field(293). Finally, the Decision also provided for periodic meetings of all national contact points.
In 2011, a Secretariat for the Network was established within Eurojust.

The  Genocide  Network  can  therefore  be  seen  as  a  key  structure  through  which  EU  Member  States  can
strengthen the system of international criminal justice and accountability embodied in the Rome Statute. If
used to its potential, it can enhance the effectiveness and efficiency of action taken by EU Member States to
ensure  that  the  EU  area  is  not  a  safe  haven  for  those  responsible  for  international  crimes.  By  facilitating
cooperation  and  coordination  between  the relevant  law  enforcement  authorities,  and  providing  a  forum
within  which best practices  and experience can  be shared between EU Member States, the Network holds
the potential to consolidate and strengthen not only the commitment of EU Member States but also the EU
as whole to the objectives of combating the culture of impunity, and thus support the Rome Statute system
of international criminal justice. This has  been acknowledged by  the EU.  The 2009 Stockholm programme,
establishing  the  strategic  agenda  for the  EU  in  its  legislative  and  operational  planning  within  the  field  of
freedom, security and justice within the Union for the period between 2010-2014, reiterated the importance
for  EU  institutions  to  promote  the  principle  of  complementarity  and  compliance  with  Rome  Statute
obligations within the Union(294).

However,  in  a  recent  Note  by  the  Council  Working  Group  on  General  Affairs  and  Evaluations  (‘GENVAL’),  a
working group addressing issues of police and judicial cooperation in criminal matters, the Working Group

289 Article 1, Council Decision 2002/494/JHA.
290 Article 2, Council Decision 2002/494/JHA.
291 Article 1, Council Decision 2003/335/JHA of 14 May  2003 on the investigation and prosecution of genocide, crimes
against humanity and war crimes, OJ L 118, 14.5.2003, at p.12 (hereafter ‘Council Decision 2003/335/JHA’).
292 Article 2 Council Decision 2003/335/JHA.
293 Article 3(1) and 5(1) Council Decision 2003/335/JHA.
294 The Stockholm Programme – an open and secure Europe serving and protecting citizens, OJ C 115, 4.5.2010, at p.1, at
p.17.

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reported a number of challenges identified by participants in the network in their efforts to bring to justice
perpetrators within their jurisdiction:









A  continuing  need  for  improved  cooperation  and  coordination  among  law  enforcement  services,
criminal  justice  authorities  and  other  relevant  actors  such  as  immigration  authorities,  foreign  affairs
authorities and civil society to increase the exchange of information on suspected perpetrators, victims
and  witnesses  and  other  evidence  located  throughout  different  EU  Member  States  and  to  establish
secure databases in order to avoid duplication of work;
Inadequate  implementation  of  Council  Decision  2003/335/JHA  in  relation  to  exchange  of  information
between immigration and prosecution authorities as well as setting up designated specialist units;
Insufficient  realisation  of  the  Stockholm  programme  and  its  Action  Plan  that  mandated  the  European
Commission to evaluate the implementation of internal instruments on fighting impunity by 2011;
A  constant  demand  for  training  and  additional  resources  at  national  level  as  investigation  and
prosecution of serious international crimes is highly complex and specialized(295).

The final observation noted an imbalance in the EU’s approach towards the fight against impunity; while the
EU’s  support  for  the  ICC  and  international  criminal  justice  is  visible  and  effective  in  the  framework  of  its
external relations it is considerably less so in its internal relations(296). One interviewee observed as a result of
the influx of refugees and those seeking asylum arising from the ongoing conflict in Syria, it is highly likely
that a significant number of individuals involved in the commission of international crimes in the course of
that  conflict – whether  as  perpetrators,  victims  or  witnesses – will  be  likely  to  be  found  within  European
borders(297). This will require effective coordination and cooperation between national European authorities
in order to ensure that the EU does not become a safe haven for impunity.

As  observed  in  the  GENVAL Note  and  in  a  joint  letter  submitted  to  the  Working  Group  by  NGOs,  the
Genocide Network would benefit from enhanced engagement by all key EU institutions – the Commission,
Council and Parliament(298). While the recommendation of the adoption of an Action Plan and Task Force to
increase efficiency in combating impunity within the EU – similar to the 2011 Decision and 2011 Action Plan
adopted under the CFSP – is to be supported(299), capacity needs to be developed in order to implement that
Plan – both  at  the  EU level  and  within  Member  States.  The  resources  available  to  the  Network  and  the
Secretariat  and  the  visibility  of  their  activities  and  mandate  could  be  improved(300).  A  starting  point,  as
observed  in  the  letter  to  GENVAL,  would  be  to  follow  up  the  Commission’s  progress  with  regard  to  the
preparation  of  the  report  reviewing  the  implementation  of  the  mandate  of  the  Genocide  Network,
envisaged by the 2010 Stockholm Programme to be delivered in 2011(301). This report would be essential to
informing the process of drafting an effective Action Plan.

To recall, while the ICC has been established in order to step in where states are unwilling or unable, within
the  Rome  Statute  system  of  international  criminal  justice,  states  are  envisaged  to  be  the  primary  actors  in
the fight  against  impunity.  In  light  of  this,  the  development  of  a  strong  Genocide  Network  would  be  a

295 Strengthening  efforts  to  combat  impunity  within  the  EU  and  its  Member  States  for  serious  international  crimes –
renewed  engagement in  the  field  of  Justice  and  Home  Affairs,  Brussels,  19.11.2013  (16340/13)  at  p.3  (hereafter,
‘Strengthening efforts to combat impunity, 19.11.2013’).
296 Strengthening efforts to combat impunity, 19.11.2013 at p.3.
297 Telephone interview #02 with EU Official, 03.02.2014.
298 Joint Letter on behalf of Redress, Trial, FIDH, ASF, Euro-Mediterranean Human Rights Network, European Center for
Constitutional  and  Human  Rights,  Human  Rights  Watch  to  Delegations  of  GENVAL,  25.11.2013  (hereafter ‘Joint  Letter,
25.11.2013’).
299Joint Letter, 25.11.2013; Strengthening efforts to combat impunity, 19.11.2013.
300 Telephone interview #02 with EU Official, 03.02.2014.
301 Communication from the Commission to the European Parliament, the Council, the European Economic and Social
Committee  and  the  Committee  of  the  Regions: Delivering  an  area  of  freedom,  security  and  justice  for  Europe’s  Citizens -
Action Plan Implementing the Stockholm Programme’, 20.04.2010 (COM(2010) 171 final), at p.10 (Annex).

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concrete  mechanism  by  which  the  EU  could  enhance  its  support  for  the  Rome  Statute  system  of
international criminal justice.

-

Europol and Eurojust

Together with Eurojust, Europol is the principal EU entity through which police and judicial cooperation in
criminal  matters  is  implemented.  With  the  replacement  of  the  Europol  Convention  in  2009  by  Council
Decision  2009/371/JHA,  Europol  was  established  as  a  formal  EU agency  to  provide  support  to  Member
States’  law  enforcement  agencies  to  facilitate  and  strengthen  mutual  cooperation  in  the  prevention  and
combating  of  organised  crime,  terrorism  and  other  serious  crimes  affecting  two  or  more  Member  States
where  the  ‘scale,  significance  and  consequences  of  the  offences’  require  the  adoption  of  a  common
approach(302). While  it  does  not  have  the  authority  to  conduct  investigations  itself,  Europol  provides
operational support to - and coordinates cooperation between – Member States’ law enforcement agencies.
With  a  wealth  of  experience  in  the  context  of  large  scale  complex  crimes  with  cross-jurisdictional
implications, the ICC could derive significant benefit from working with Europol.

However,  crucially,  while  such  cooperation is  envisaged  from  the  perspective  of  the  Rome  Statute(303),  the
absence  of  the  core  international  crimes  from  the  list  of  crimes  over  which  Europol  has  competence,
precludes  any  cooperation  between  the  ICC  and  the  agency.  This  also  means  that  Europol  does  not  have
competence over these crimes in the context of the national proceedings of Member States.

Nevertheless,  this  has  not  precluded  some  cooperation  between  the  two  organisations  in  the  form  of
training and technical assistance. In February 2013, the European Cybercrime Centre established at Europol,
chaired  an  expert  advisory  group  at  the  request  of  the  OTP  to  evaluate  the  use  of  digital  evidence  and
cybercrime  fighting  techniques  in  the  context  of  the  ICC’s  activities(304).  Areas  discussed  included  best
practices  in  online  investigation  and  proposals  to  develop  the  use  of  digital  evidence  in  the  course  of  ICC
investigations and prosecutions. Opportunities for similar collaborations in other areas could be explored.

- Mutual Recognition of Judicial Decisions

The principle of the mutual recognition of judicial decisions established by the Tampere European Council in
October 1999 equips EU Member States with the enhanced capacity  to effectively and efficiently carry out
certain law enforcement activities related to criminal justice matters that would assist them both in terms of
their  domestic  efforts  to  investigate  and  prosecute  international  crimes,  but  also  when  discharging  their
obligations to cooperate with the ICC(305). This principle, the ‘cornerstone of judicial cooperation in both civil
and criminal matters within the Union’(306), is aimed at facilitating efficient cooperation between authorities
of  EU  Member  States.  With  the  free  movement  of  persons,  goods,  capital  and  services,  so  too,  inevitably,
comes the free movement of crime and perpetrators. Combined with the increasingly cross-border nature of
criminality,  enhanced  coordination  and  cooperation  between  the  judicial  systems  of  EU  Member  States
appears a logical step in the entrenchment of EU integration.

From the perspective of the Rome Statute system of international criminal justice, the mutual recognition of
judicial  decisions  in  the  context  of  asset  freezing  and  arrest  warrants  is  particularly  important  in  order  to
effectively prosecute those who are identified through the course of investigations as being responsible for
international  crimes,  including  those  within  the  jurisdiction  of  the  Court.  Enhanced  intra-European
cooperation in the form of use of the European Arrest Warrant (‘EAW’) and the tracing and freezing of assets
not only hold the potential to strengthen the effectiveness of the ICC specifically, but also could be seen to
serve the broader system of international criminal justice aimed at ensuring accountability for international

302 Article 3 and Article 4(1) Council Decision 2009/371/JHA.
303 Article 87(1)(b) Rome Statute.
304 European Cybercrime Centre (EC3) Supports the International Criminal Court, Press Release, 14.02.2013.
305 Presidency Conclusions, Tampere European Council, 15-16.10.1999.
306 Presidency Conclusions, Tampere European Council, 15-16.10.1999, at para.33.

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crimes,  irrespective  of  where  they  occur.  As  it  was  observed  in  the  GENVAL  discussion  paper  on  the
strengthening  of  the  EU  Genocide  Network,  the  EU  hosts  a  large  presence  of  individuals  from  conflict-
afflicted  areas  where  the  widespread  commission  of  international  crimes  has  been  well  documented.
Therefore, the number of potential victims, witnesses and even perpetrators within the EU area is likely to be
significant.  Indeed,  as  the  discussion  paper  cites  ‘in  2012  alone,  UK  immigration  authorities  took  action
against 99 people who had applied for British citizenship, asylum or leave to remain in the UK on the basis of
suspected involvement in crimes under international law’(307). Given the internal freedoms within the Union,
the  need  to  enhance  cooperation  between states  in  order  to  secure  the  apprehension  of  suspected
perpetrators once present within the EU area becomes particularly acute.

The EAW, established by Council Framework Decision 2002/584/JHA(308), denotes the ability of a competent
judicial  authority  of  any  EU  Member  State  to  issue  a  decision  for  the  arrest  and  surrender  of  a  requested
person  that  is  recognised  and  shall  be  executed  by  all  EU  Member  States(309).  The  EAW  becomes  available
when  someone  wanted  for  arrest  has  left  the  jurisdiction  in  which  he/she  is  wanted  and  is  present  within
another  EU  Member  State.  The  potential  utility  of  this  in  the  context  of  national  efforts  to  investigate  and
prosecute international crimes should, on the basis of the foregoing discussion, be apparent.

However, in addition to enabling Member States to effectively pursue effective prosecutions at the national
level, it is also possible to envisage how the EAW may assist EU Member States when discharging their duties
to cooperate with the ICC under the Rome Statute. Under Article 59(1) of the Rome Statute, State Parties that
have  received  a  request  for  the  provisional  arrest  and  surrender  of  an  individual  subject  to  a  warrant  for
arrest  issued  by  the  Court  are  under  an  obligation  to  take  immediate  steps  to  arrest  that  person.
Accordingly, all EU Member States, as State Parties to the Rome Statute, are subject to this obligation. While
warrants  for  arrest  issued by the  ICC do  not  fall  within  the  scope  of  the  principle  of  mutual  recognition  of
judicial decisions – as the ICC is not a EU Member State and nor do its arrest warrants fall within the 2006 or
2008  cooperation  agreements  concluded  between  the  two  institutions  (see  section  10.3.3),  the  EAW  does
open up the possibility for any court of an EU Member State to issue an EAW pursuant to a request issued by
the ICC to that state. This is particularly important given the freedom by which individuals once within the
EU can move between EU Member States.

To date, the EAW has not been used to secure the arrest of an individual suspected of being responsible for
international  crimes – either  in  the  context  of  domestic  criminal  proceedings  or  proceedings  before  the
ICC(310).  However,  the  EAW  equips  EU  Member  States  with  the  tools  needed  to  respond  effectively  and
efficiently to situations that could be foreseen.

The second area of mutual recognition of judicial decisions that could enhance the capacity of EU Member
States  to  pursue  justice  and  accountability  in  an  effective  and  efficient  manner  concerns  the  tracing  and
freezing  of  assets  of  those  suspected  of  involvement  in  international  crimes.  Asset  freezing  is  a  key  area
where  the  ICC  needs  EU  assistance  given  that  the  EU  Member  States  have  extensive  experience  in  that
respect.  Asset  location,  freezing  and  recovery  are  important  protective  provisional  measures  that  involve
holding the assets of individuals subject to criminal proceedings in order to prevent them from being used
either to finance further criminal wrong doing or to provide the basis for victims reparations if a finding of
guilt  is  determined.  Therefore,  matters  concerning  the  effective  and  efficient  freezing  of  assets  are  of
significant  importance  to  the  attainment  of  the  objectives  of  the  system  of  international  criminal  justice.
Asset freezing not only relates to providing substantive justice to victims of international crimes as the Rome

307 See Strengthening efforts to combat impunity, 19.11.2013, at p.3, footnote 2. It continues to state ‘However, only nine
current police investigations were based on referrals from immigration authorities’.
308 Council  Framework  Decision  2002/584/JHA  of  13.06.2002 on  the  European  arrest  warrant  and  the  surrender
procedures between Member States. OJ L 190, 19.7.2002, at p.1 (hereafter ‘Council Framework Decision 2002/584/JHA’).
309 Article 1, Council Framework Decision 2002/584/JHA.
310 Telephone interview #01 with ICC Official, 03.02.2014; Telephone interview #02 with EU Official, 03.02.2014.

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Statute provides for the payment of reparations to victims upon findings of guilt from the assets seized(311),
but can also play an important role in preventing the commission of international crimes in the future. It can
also play a role in facilitating the arrest or surrender of an individual wanted by the Court. By depriving them
of the financial means by which they can continue their affairs, pressure is placed on individuals to comply
with summonses or cooperate with judicial and law enforcement authorities, whether it be in the context of
domestic criminal proceedings or proceedings at the ICC. At the same time, the current ability of individuals
subject  to  investigation  by  the  Court to  place  assets  beyond  the  jurisdiction  of  the  Court  has  meant  that
currently  all  individuals  subject  to  proceedings  before  the  Court  except  one  have  been  declared  indigent
and thus are entitled to claim legal aid for their defence costs from the Court(312).

Given  the  ability  by  which  individuals  may  maintain  assets  in  multiple  jurisdictions  and  the  ease  by  which
assets  can  be  transferred  between  jurisdictions,  asset  freezing  and  recovery  is  a  matter  that  requires  close
cooperation  between  competent  authorities.  However,  when  in  some  instances  the  ICC  has  approached
State Parties to help in that respect, they often maintained that the ICC request on asset freezing does not
always  comply  with  the  requirements  of  national  legislation.  A  dialogue  at  the  EU  institutional  level  to
facilitate the capacity to assist the ICC in regards to asset freezing within the EU would be beneficial to the
Court(313).

The EU has adopted instruments under the principle of mutual recognition of judicial decisions that facilitate
such  cooperation.  Council  Framework  Decision  2003/577/JHA  enables  judicial  authorities  of  EU  Member
States  to  send  requests  for  the  freezing  of  assets  to  other  EU  countries  where  that  decision  will  be
recognised  and  executed  without  requirement  of  intermediate  formalities  by  the  authorities  of  the  state
receiving the request(314). For the purposes of investigating the core international crimes, what is particularly
relevant  is  that  the  Framework  Decision  specifically  identifies  ‘crimes  within  the  jurisdiction  of  the
International Criminal Tribunal’ as being exempt from the need for verification that they constitute crimes in
both the jurisdiction of the requesting and the receiving states(315).

The  efficiency  by  which  EU  Member  States  could  respond  to  matters  requiring  the  identification  and
freezing  of  assets  would  however  be  improved  if,  as  was  suggested  in  section  6.2,  the  core  international
crimes were included within the list of crimes over which the EU has competence under Article 83(1) TFEU.
As the European Parliament observed in its 2011 Resolution, by doing so, this would open up the possibility
of the measures being adopted at the EU level by the Commission and the Council to order and secure the
identification and freezing of assets of those suspected of involvement in international crimes.

Cooperation  between  EU  Member  States  in  this  context  is  also  relevant  when  considering  their  ability  to
effectively  and  efficiently  act  upon  requests  by  the  ICC  to  identify,  trace,  freeze  or  seize  assets  relating  to
ongoing  investigations  and  prosecutions,  pursuant  to  Article  93(1)(k)  of  the  Rome  Statute.  Given  the
absence of crimes within the Court’s jurisdiction under Article 83(1) TFEU, and the matter also falling outside
the  scope  of  the  two  Agreements  concluded  between the  EU  and  the  ICC  to  facilitate  cooperation  (see
section  10.3.3),  the  EU  is  limited  in  its  capacity  to  cooperate  directly  with  the  ICC  on  these  matters  at  the
institutional level.

However, the mutual recognition of judicial decisions and its application to asset freezing under Framework
Decision 2003/57/JHA can expedite the cooperation that ICC States Parties, as EU Member States, can provide
to the Court in response to requests directed to States Parties. Therefore this Framework Decision can assist
EU  Member  States  to  effectively  and  efficiently  fulfil  their  cooperation  obligation  under  the  Rome  Statute.
Effective and efficient cooperation by states in turn enhances the effectiveness and efficiency with which the

311 Articles 93(1) and 75(4), Rome Statute.
312 Telephone interview #05 with ICC Official, 04.02.2014.
313 Telephone interview #05 with ICC Official, 04.02.2014.
314 Article 1 Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of order
freezing property or evidence, OJ L 196, 2.8.2003, at p.45 (hereafter ‘Council Framework Decision 2003/577/JHA’).
315 Article 3(2) Council Framework Decision 2003/577/JHA.

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Court  can  operate.  At  the  same  time,  the ability  of  the  Union  to  trace,  freeze  and  confiscate  assets  upon
request directly from the ICC without requiring the intermediary of an EU Member State would contribute to
a more streamlined process in this area, leading to expedited compliance with requests.

Relevant  to  the  duty  of  Member  States  to  act  upon  cooperation  requests  by  the  ICC  pursuant  to  their
obligations  under  the  Rome  Statute  system  are  recent  decisions  of  the  Court  of  Justice  of  the  European
Union (CJEU). These decisions could potentially impact upon the ability of Member States of the EU to act
upon  requests  for  cooperation.  The  CJEU  in  its  decision  in Kadi,  decided  that  when  EU  institutions  or
Member States undertake action pursuant to obligations derived from other international agreements, that
action must still be lawful as a matter of EU law, which includes fundamental rights law(316). Therefore, while
explicitly  denying  competence  to  review  the  legality  of  the  resolutions  of  the  UN  Security  Council(317),  the
Court  considered  whether  the  measures  adopted  by  EU  institutions  and  Member  States  in  order  to
implement those UN resolutions was lawful as a matter of EU law. In Kadi, the CJEU was asked to determine
whether regulations adopted by the Council to freeze the assets of the applicant individual pursuant to a UN
Security  Council  resolution  imposing  sanctions  on  the  applicant  were  lawful  as  a  matter  of  EU  law.  The
applicant contended that the freezing of his assets by the Council violated his rights under EU fundamental
rights law, since the sanctions were ordered by the UN Security Council without the due process required by
EU fundamental rights(318).

This has potential consequences for cooperation between EU Member States and the ICC. EU Member States
must ensure that when acting upon requests for cooperation by the ICC, their acts are also compliant with all
EU law. Therefore, taking the example of asset freezing, EU Member States when seeking to act upon an ICC
request  that  an  individual’s  assets  be  frozen  must  provide  that  individual with  the  procedural  guarantees
he/she is entitled to under EU law. Such rights might include the right to know the basis for the decision, the
right  to  challenge  that  decision  and  to  be  heard,  and  the  right  to  have  that  decision  subject  to  judicial
review.  The  observance  of  these  rights  by  EU  Member  States  could  potentially  impair  their  ability  to
efficiently act upon Court requests for cooperation.

However, whether EU fundamental rights law will operate to impede effective cooperation by EU Member
States with the ICC is questionable. The Rome Statute of the ICC imposes stringent obligations on all organs
of  the  Court  to  fully  respect  the  rights  of  the  accused  as  enshrined  in  Article  55,  66  and  67  of  the  Rome
Statute. In contrast to the opaque procedures adopted by the UN Security Council and its subsidiary organs
when determining who falls within their sanctions regime, a judicial institution like the ICC would naturally
be  expected  to  uphold  the  highest  standards  of  due  process  and  judicial  review.  Therefore,  the  CJEU
decisions in the Kadi cases may(319) – although potentially slowing down cooperation by EU Member States –
serve  a  more  important  role  in  strengthening  the  EU’s  wider  commitment  to  the  values  and  principles
embodied by the Rome Statute – rule of law, the respect for human rights and fundamental rights.

316Judgment  of  3.09.2008  in  Joined  Cases  C-402/05P  and  C-415/05P: Kadi  and  Al  Barakaat  International  Foundation  v
Council and Commission [2008] ECR I-6351, at para.283-285, 299 and 303-4.
317 Judgment  of  3.09.2008  in  Joined  Cases  C-402/05P  and  C-415/05P: Kadi  and  Al  Barakaat  International  Foundation  v
Council and Commission [2008] ECR I-6351, at para.225.
318 Judgment  of 3.09.2008  in  Joined  Cases  C-402/05P  and  C-415/05P: Kadi  and  Al  Barakaat  International  Foundation  v
Council and Commission [2008] ECR I-635, at para. 116-118.
319 Judgment  of  3.09.2008  in  Joined  Cases  C-402/05P  and  C-415/05P: Kadi  and  Al  Barakaat  International  Foundation  v
Council  and  Commission [2008]  ECR  I-635,  along  with  the  subsequent  case  Judgment  of  18.07.2013,  in  Joined  Cases
C584/10P, C593/10P and C595/10P: Yassin Abdullah Kadi v European Commission [2010] ECR-5177.

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9.3

The EU as a Global Actor

Article 21 of the TEU states that ‘the Union shall seek to develop relations and build partnerships with third
countries, and international, regional or global organisations which share the principles’ that guide the EU in
its external action(320). This forms the primary legal basis for the EU’s cooperation with the Court.

The Court itself has highlighted the continuing importance of political, financial and technical cooperation
not  only  by  State  Parties  but  also  by  regional  and  international  organisations – which  it  identifies  as
‘important  fora  for  States  Parties  to  discuss  and  align  support  to  and  cooperation  with  the  Court’(321).  The
European Parliament, for example, has been an effective forum for EU Member States to remind each other
of  their  obligations  to  provide  assistance  and  cooperation  to  the  Court,  and  the  need  to  adopt  such
legislative measures necessary to do so(322). The EU, by reason of the strength it takes from its membership,
can  be  a  powerful  actor  in  terms  of  cooperation  with  the  Court.  Not  only  does  it  hold  the  potential  to
cooperate with the Court itself, but it can also encourage third states to strengthen their cooperation with
the Court.

9.3.1

Political

From the perspective of the ICC, it has been observed that public diplomatic and political support lent to the
ICC  by  states  and  international  institutions  such  as  the  EU  are  a  ‘critical  tool  to  protect  and  enhance
cooperation  with  the  Court’(323).  The  Court  has  observed  that  where  there  exists  a  depleting  or  lack  of
consistent public and diplomatic support for the ICC, requests for technical cooperation are increasingly not
being  addressed  by  the  appropriate  stakeholders,  where  it  is  considered  that  cooperating  with  the  Court
would  be  detrimental  to  national,  regional  or  international  interests(324).  To  this  effect,  the  Court  believes
that it is important – not just for its legitimacy, but also for its effectiveness and efficiency – to

create  a  framework  of  public  and diplomatic  support  for  the  Court  and  the  Rome  Statute  system,  strong
enough to ensure that States Parties that are under a legal obligation to cooperate with the Court, but that
face challenges in doing so because of political, economic, security or capacity related matters, do not have
to carry alone the pressure that could result from these situations(325).

In this regard, the EU cooperates with the ICC by providing high profile political support to the Court and its
activities to encourage wider cooperation by third states.

The following paragraphs will build upon previous sections to examine the example that EU practice sets in
terms  of  the  supporting  cooperation  with  the  Court  through  the  use  of  political  measures  such  as  joint
statements, positions and declarations, as well as bilateral initiatives such as dialogues and demarches (326).
Given  that  previous  sections  have  examined  already  political  measures  that  the  EU  has  taken  to  promote
universality,  full  implementation  and  cooperation  with  the  Court,  this  section  will  focus  upon  the  EU’s
response to non-cooperation by third states.

In November 2013, the COJUR-ICC issued information on the EU’s response to non-cooperation with the ICC
by  third  states(327).  In  it,  it  acknowledged  that  ‘non-cooperation  constitutes  one  of  the  most  serious
challenges  to  the  effective  functioning  of  the  ICC’(328).  Further,  by  impeding  its  effective  functioning,  non-
cooperation makes the ICC look less credible, which ultimately undermines its integrity. While the Security

320 Article 21(1) TEU.
321 ASP, Report of the Court on cooperation, at para.57.
322 European Parliament resolution P7_TA(2011)0507, at para.9-11.
323 ASP, Report of the Court on cooperation, at para.51.
324 ASP, Report of the Court on cooperation, at para.52.
325 ASP, Report of the Court on cooperation, at para.53.
326 ASP, Report of the Court on cooperation, at para.59.
327 The  EU’s  response  to  non-cooperation  with  the  International  Criminal  Court  by  third  states,  Brussels,  27.11.2013
(16993/13) (hereafter ‘The EU’s response to non-cooperation’).
328 The EU’s response to non-cooperation, at para.3.

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Council has failed to provide the political support for the Court, the EU has issued a number of statements
declaring support for the ICC with regard to all its proceedings, but in particular those concerning situations
referred  to  the  ICC  by  the  Security  Council.  For  example,  statements  are  regularly  issued  by  the  EU  High
Representative  and  her  spokesperson  in  response  to  failures  by  State-Parties  to  the  Rome  Statute  to  fulfil
their duties to  cooperate with the Court in the execution of arrest warrants. In  particular, statements have
been  made  regretting  the  failure  of  Nigeria,  Chad  and  the  CAR  to  act  upon  the  warrants  for  the  arrest  of
Sudanese  President  Omar  Al  Bashir  and  Defence  Minister  Abdel  Raheem  Muhammed  Hussein  upon  their
visits  to  the  respective  countries(329).  Most  recently,  on  the  27th February  2014,  the  High  Representative
issued a strong statement expressing concern at President Al Bashir’s visit  to the DRC, a State Party to  the
Rome Statute and direct beneficiary of ICC proceedings, and called upon the DRC to abide by its obligations
under  international  law  with  regards  to  the  arrest  and  surrender  of  President  Al  Bashir(330).  The  Council’s
inclusion of  clauses that remind states of  their obligations to cooperate with  the Court in relevant  Council
Conclusions is one further way in which the EU acts to lend political support to the integrity of the Statute.
For  example,  the  Council  has  included  clauses  reminding  the  Sudanese  Government  of  its  obligations  to
cooperate with the ICC by reason of Security Council 1593, referring the situation in Sudan to the ICC(331). In
contrast,  where  ICC  warrants  have  been  executed  resulting  in  the  arrest  and  surrender  of  individuals,  the
High Representative has issued statements welcoming that cooperation(332).

The June 2013 information issued by the COJUR-ICC on non-cooperation appears to regularise this kind of
response  to  non-cooperation  by  third  states,  stating  that  ‘[w]henever  non-cooperation  occurs  or  is
impending,  the  EU  and  its  Member  States  will  call  for  cooperation  with  the ICC  and  respond  to  non-
cooperation’(333). Further, the COJUR-ICC noted that the matter of non-cooperation would become a regular
item  on  the  Working  Party’s  agenda,  with  the  outcomes  of  its  discussions  disseminated  to  other  relevant
Working  Parties  and  the  EU  Focal  Point(334).  In  2013,  the  Bureau  of  the  ASP  observed  the  lack  of  any
‘systematic  results-orientated  discussion  on  concrete  steps  or  measures  that  can  be  taken  to  facilitate
arrests’  and  its  call  for  ‘discussions  specifically  focussed  on  cooperation  to achieve  arrests,  with  a  view  to
producing  recommendations  on  how  to  best  contribute  towards  securing  them’(335).  In  light  of  this,  it  is
necessary to mention the announcement by the COJUR-ICC that it is in the process of considering ‘various
options as  to how the EU and its Member States could further systemise and strengthen their response  to
cases  of  non-cooperation  with  the  Court’(336).  While  political  statements  are  an  important  aspect  of  the
response  to  instances  of  non-cooperation,  it  was  suggested  that it  is  necessary  that  such  statements  are
complemented  by  more  concrete  consequences  for  States  that  have  not  complied  with  their  cooperation

329 Déclaration  de  la  Haute  Représentante  Catherine  Ashton  au  nom  de  l'Union  européenne  sur  la  visite  du  Ministre
soudanais  de  la  Défense,  Abdel  Raheem  Muhammad  Hussein,  en  République  centrafricaine,  Brussels,  27.08.2013
(13137/1/13  Rev  1);  Statement  by  the  spokesperson  of  the  EU  High  Representative  Catherine  Ashton  on  the  visit
Catherine Ashton on the visit of Sudanese  President Al-Bashir, Brussels, 16.07.2013; Statement by the Spokesperson of
EU  High  Representative  Catherine  Ashton  on  the  Visit  of  Sudanese  President  Al-Bashir  to  Chad,  Brussels,  16.05.2013
(160513/3); Statement by the Spokesperson of High Representative Catherine Ashton on the visit of Sudanese Minister
of  National  Defence,  Abdel  Raheem  Muhammad  Hussein,  to  Chad,  Brussels,  26.04.2013  (A  227/13);  Statement  by  the
Statement by the spokesperson of EU High Representative Catherine Ashton  o the visit of Sudanese President Al-Bashir
to Chad, Brussels, 21.02.2013.
330 Statement by  the Spokesperson  of EU  High  Representative  Catherine  Ashton  on the  visit  of  Sudanese  President Al
Bashir to the Democratic Republic of Congo, Brussels, 27.02.2014 (140227/01).
331 e.g. Council of the European Union, Council Conclusions on Sudan: 3058th Foreign Affairs Council meeting, Brussels,
13.12.2010  at  para.13;  Council  of  the  European  Union,  Council  Conclusions  on  Sudan:  3058th Foreign  Affairs  Council
meeting, Brussels, 22.11.2010, at para.8.
332 Statement  by  the  spokesperson  of  EU  High  Representative  Catherine  Ashton  on the transfer of  Bosco  Ntaganda  to
The Hague, Brussels, 22.03.2013 (A 162/13).
333 The EU’s response to non-cooperation, at para.6.
334 The EU’s response to non-cooperation, at para.10.
335 ASP, Bureau Cooperation Report, at para.15.
336 The EU’s response to non-cooperation, at para.9.

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obligations  under  the  Rome  Statute(337).  This  might  be  an  area  that  the  COJUR-ICC  may  wish  to  look  into
further.

On the matter of non-essential contacts, the 2011 Action Plan states that Member States and the EU ‘should
avoid  non-essential  contacts  with  individuals  subject  to  an  arrest  warrant  issued  by  the  ICC’(338).  This  has
been elaborated upon to a degree by the COJUR-ICC, which has defined ‘essential contacts’ as ‘those which
are  strictly  required  for  carrying  out  core  diplomatic,  consular  and  other  activities  and/or  those  activities
which are UN-mandated or which arise from a legal obligation (eg. under headquarters agreements)’(339). It
further  continues  by  acknowledging  some  flexibility,  stating  that  the  special  circumstances  of  particular
cases  would  be  taken  into  account  in  order  to  determine  on  the  facts  what  constitutes  an  essential
contact(340). Accordingly, in practice this provides little concrete guidance in determining with certainty what
is  and  what  is  not  ‘essential’  contact.  Greater  transparency  in  the  guidelines  applied  by  the  EU  and  its
Member States when implementing its policy of non-essential contacts would be of benefit not only within
the Union, but also to the ICC ASP(341). Should the ASP act upon the recommendation of some State Parties
to establish a policy at the level of the ASP to assist State Parties to comply with their obligations under the
Rome Statute(342),  insight  into  the  guidelines  applied  by  its  European  State  Parties  would  be  a  valuable
contribution to the process of negotiating a text amenable to the ASP(343).

9.3.2

Financial

Earlier,  in  section  8.3.2.,  it  was  noted  that  the  EU  contribution  to  the ICC  Trust  Fund  for  building  legal
expertise and cooperation through  the EIDHR  facilitated a series of seminars on ‘Fostering  Cooperation’  in
Nuremberg. As was discussed, these high-level seminars were designed to enhance knowledge on technical
matters arising out of the duty to cooperate with the Court – such as the implementation of arrest warrants,
asset freezing and the conduct of investigations. As a direct result of these seminars(344), three states entered
into Witness Relocation Agreements with the ICC, a tangible outcome of EU financial support to initiatives
designed to enhance cooperation with the Court. It was also reported that a number of African Union (AU)
representatives  confirmed  their  interest  in  organising  an  ICC-AU  seminar  in  Addis  Ababa and  further  to
cooperate with the Court on a range of other practical matters, however the AU has subsequently deferred
the seminar(345).

9.3.3

Technical

The EU has concluded two bilateral agreements with the ICC in order to facilitate cooperation between the
ICC and the EU. In 2006, pursuant to what was then Article 11 TEU(346), the EU, represented by the Presidency
of the Council of the European Union concluded the Agreement Between the International Criminal Court and
the  European  Union  on  Cooperation  and  Assistance (347).  Explicitly  not  addressing  matters  concerning  the
cooperation between the ICC and individual Member States(348), the 2006 Agreement is narrow in scope and

337 Telephone interview #10 with ICC official, 13.02.2014.
338 Action Plan, 2011, at p.14.
339 The EU’s response to non-cooperation, at para.9.
340 The EU’s response to non-cooperation, at para.9.
341 Telephone interview #04 with representative of a Non-EU Member State, ICC State Party (WEOG Group), 04.02.2014.
342 ASP, Report of the Court on cooperation, at para.10.
343 Telephone interview #04 with representative of a Non-EU Member State, ICC State Party (WEOG Group), 04.02.2014.
344 Telephone  interview  #05  with  ICC  Official,  04.02.2014;  Telephone  interview  #04  with  representative  of  a  Non-EU
Member  State,  ICC  State  Party  (WEOG  Group),  04.02.2014.  ICC,  Financial  Report.  See  also  Factsheet,  Building  Legal
Expertise  and  Fostering  Cooperation,  EIDHR/2012/292-809_Eng  Updated:  28.05.2013  (on  file  with  the  author)  at  p.5
(hereafter ‘Factsheet: Building Legal Expertise’).
345 ICC, Financial Report; Factsheet: Building Legal Expertise at p.5.
346 Post Lisbon, this is now Article 24 TEU.
347 Agreement Between the International Criminal Court and the European Union on Cooperation and Assistance, O.J L
115, 28.4.2006, at p.50 (hereafter EU-ICC Agreement, 2006).
348 Recital 10, and implicitly, Articles 2(1) and 3(1), EU-ICC Agreement, 2006.

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is  limited  to  technical  elements  of  cooperation  and  assistance.  It  addresses  the  forms  of  cooperation  as
provided for in Article 87(6) of the Rome Statute, regarding the delivery of documents and information. The
2006  Agreement  provides  an  example  of  a  highly  technical  legislative  instrument  that  facilitates  direct  EU
cooperation with the ICC on matters directly related to the Court’s investigative and prosecutorial functions.
The  Agreement  replicates  the  typical  practice  for  coordinating  the  process  of  cooperation  established  by
international  institutions  and  organisations,  whereby  the  institution  requesting  cooperation  submits  a
request for cooperation regarding a specific matter, and the other institution acts upon that request(349). In
addition  to  such ad  hoc instances  of  cooperation,  the  Agreement  provides  for  the  regular  exchange  of
information(350).  Further  to
information  and  documentation, 
documentary information, the Agreement also covers the exchange of information through the provision of
testimony by EU staff(351).

including  classified  documents  and 

In addition to cooperation concerning the exchange of information, Article 14 of the Agreement enables the
EU to cooperate with the ICC in the form of providing facilities and services in the field. EU delegations have
indeed  assisted  the  ICC  with  the  development  of  local  and  foreign  contacts  in  the  field(352).  From  the
perspective of the EU, the Agreement constitutes an effective mechanism to facilitate the Union’s efficient
cooperation with the Court while at the same time ensuring that safeguards are established to respect the
confidentiality and security of EU information, particularly classified information(353).

The  EU  concluded  a  second  agreement  with  the  ICC  in  2008  specifically  addressing  the  security
arrangements  for  the  exchange  of  classified  information  between  the  two  institutions(354).  Once  again,  a
highly technical instrument, the 2008 Agreement is designed to establish the requisite standards of security
required by both institutions when exchanging information of a classified nature. It establishes the protocols
to be followed by both the EU and the ICC when both  making and responding to requests to both access
classified information and requests for the release of such information to the Court(355), as well as providing
for  the  establishment  of  a  designated  Liaison  Officer  (EU)  and  Point  of  Contact  (ICC)  each  responsible  for
coordinating on behalf of their respective institution(356).

Other aspects of the agreement establish procedures to be adopted in cases of breaches or compromises in
security, and detailing the need for necessary investigative, remedial or corrective action, and if appropriate,
disciplinary action(357). In sum, like the 2006 Agreement, the 2008 Agreement constitutes a prime example of
concrete measures that the EU can put in place in order to ensure that it is capable of cooperating with the
Court in an efficient, effective, and secure manner.

9.4

9.4.1

Recommendations

Member States




Member States should promptly execute arrest warrants, when requested by the ICC;
Member  States should  share  experience,  best  practices  and  expertise  on  witness
protection issues, help other states set up witness protection systems and encourage the
signing of witness relocation agreements with the ICC;

349 Article 7(2) EU-ICC Agreement, 2006.
350 Article 7(1) EU-ICC Agreement, 2006.
351 Article 10 EU-ICC Agreement, 2006.
352 Telephone interview #10 with ICC official, 13.02.2014.
353 Article 11(3) EU-ICC Agreement, 2006.
354 Security Arrangements for the Protection of Classified Information Exchanged Between the EU and the ICC, Brussels,
15 April 2008 (8349/1/08) (hereafter ‘EU-ICC Security Arrangement, 2008’).
355 Aricles18-20, EU-ICC Security Arrangement, 2008.
356 Article 16, EU-ICC Security Arrangement, 2008.
357 Articles 35-37 EU-ICC Security Arrangement, 2008.

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Mainstreaming Support for the ICC in the EU’s Policies











Support  the  work  of  the Genocide  Network to  enhance  the  capacity  of  EU  Member
States to investigate and prosecute core international crimes within the EU;
Consider  the  adoption  of  an  Action  Plan  and  Task  Force  to  increase  efficiency  in
combating impunity within the EU;
Add core international crimes (namely, genocide, crimes against humanity, war crimes) to
the list of crimes over which Europol has competence;
Make  use  of  the European  Arrest  Warrant for  ICC-related  arrests,  provided  that  the
conditions for its application are present;
More use can be made of the asset tracing, freezing and recovery capabilities within the
EU.  Consider  the  possibility  of  tracing,  freezing  and  confiscating  assets  upon  request
directly from the ICC, rather than through Member States.

9.4.2

EU

















The European  Parliament should  continue  to  provide  high  profile  political  support  to
encourage cooperation with the ICC by states (both Member States as well as third states);
The GENVAL should  conduct  an  evaluation  of  implementation  of  the  mandate  of  the
Genocide Network;
Greater emphasis by the EEAS and Commission should be placed on adopting concrete
measures  to  respond  to  non-cooperation  with  the  ICC  to  complement  the  political
statements in response to non-cooperation;
The Spokesperson  of  the High  Representative should  continue  to  issue  statements
regarding non-cooperation;
The Council should  continue  to include  clauses  in  its  statements  and  conclusions
reminding  states  and  parties  to  ongoing  situations  subject  to  ICC  investigations  of  their
obligations to cooperate with the ICC;
Continue  to  encourage  the  work  undertaken  within  the COJUR-ICC with  regard  to
regularising the EU’s response regarding non-cooperation;
The COJUR-ICC should  engage  with  the  process  established  by  the  Roadmap  recently
adopted by the ASP in November 2013 for achieving an operative tool to enhance arrests;
Increase  the  transparency  in  the  guidelines  applied  by  the EU and  its Member  States
when implementing its policy of non-essential contacts.

10.

10.1

COMPLEMENTARITY

General discussion

Throughout this study, emphasis has been placed upon the need to ensure the effective implementation of
the  principle  of  complementarity  in  order  to  strengthen  the  system  of  international  criminal  justice
embodied by the Rome Statute. The ability of states to embrace the role that they have been given under
the Rome Statute has significance for the effectiveness of the overall system of justice established by the ICC
Statute and helps, in turn, to reinforce the ICC itself. When States fulfil their responsibility to investigate and
prosecute international crimes domestically, this reduces the burden on the ICC, as a ‘court of last resort’(358).
At the same time, an effective ICC provides the vital support that the community of states need when states
are unable or unwilling to fulfil those responsibilities. According to the OTP, a ‘Court based on the principle
of  complementarity  ensures  the  international  rule  of  law  by  creating  an  interdependent,  mutually
reinforcing international system of justice’(359).

358 Report of the Bureau on Stocktaking: Complementarity, at para.3.
359 Report on Prosecutorial Strategy, The Hague, 14.09.2006, at p.5.

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Whereas in previous sections, the focus has been upon the responsibilities of Member States to implement
the principle of complementarity and the measures that the EU can take to assist them in discharging that
responsibility, the focus of this section is upon the concept of positive complementarity.

An idea first introduced by the ICC OTP in 2006, ‘positive complementarity’ entails the active encouragement
of  states  to  conduct  national  proceedings,  and,  where  appropriate,  to  provide  the  necessary  assistance  to
enable  them  to  do  so(360).  Until  2010,  the  notion  of  positive  complementarity  was  primarily  one  of
prosecutorial  strategy.  As  explained  by  the  OTP  in  2006,  this  means  that  it  ‘encourages  genuine  national
proceedings  where  possible;  relies  on  national  and  international  networks;  and  participates  in  a  system  of
international cooperation’(361).

In  2010,  delegates  to  the  First  Review  Conference  of  the  ICC  in  Kampala  in  2010  made  positive
complementarity  one  of  the  four  key  priorities  for  discussion.  The  outcome  of  those  discussions  was  the
adoption  of  a  Resolution  on  positive  complementarity  which transformed  what  was  previously  a
prosecutorial strategy into a more holistic means by which to strengthen the ICC system specifically, and the
advancement  of  international  criminal  justice  and  the  rule  of  law  more  broadly.  However,  rather  than
focussing on  the  role  that  the  ICC  could  play  in  strengthening  national  regimes(362),  2010  marked  a  shift –
placing  the  onus  upon  states,  international  organisations  and  institutions  and  civil  society  to  strengthen
national capacity(363). Accordingly, by its resolution, the Review Conference







Recognised ‘the need for additional measures at the national level as required and for the enhancement
of international assistance to effectively prosecute perpetrators of the most serious crimes of concern to
the international community’(364);
Recognised ‘the desirability for States to assist each other in strengthening domestic capacity to ensure
that  investigations  and  prosecutions  of  serious  crimes  of  international  concern  can  take  place  at  the
national level’(365);
Encouraged ‘the Court, States Parties and other stakeholders, including international organizations and
civil  society,  to  further  explore  ways  in  which  to  enhance  the  capacity  of  national  jurisdictions  to
investigate and prosecute serious crimes of international concern’(366).

Positive  complementarity  denotes  the  provision  of  technical  and  financial  assistance  to  states  in  order  to
build  their  capacity  to  discharge  their  responsibilities  to  investigate  and  prosecute  international  crimes.
Accordingly,  while  this  may  include  initiatives  discussed  in  section  6,  designed  to  provide  assistance  to
states in order to adopt the necessary legislative changes to domestic law in order to make it compliant with
the Rome Statute and incorporate the Rome Statute, the remit of positive complementarity extends much
further.  Indicatively,  positive  complementarity  can  entail  legislative  assistance,  technical  assistance  and
capacity  building,  and  assistance  constructing  physical  infrastructure(367).  Examples  of  technical  assistance
and  capacity  building  include  the  training  of  law  enforcement  and  judicial  officials,  defence  counsel,  and
forensic investigators; the development of capacity to ensure the protection of victims and witnesses. Such
support  could  take  the  form  of  supplying  judges  and  prosecutors  to  assist  national  courts,  specialist
international crimes divisions or hybrid tribunals or the provision of mutual legal assistance and cooperation
to facilitate actual prosecutions.

360 Report on Prosecutorial Strategy, The Hague, 14.09.2006.
361 Report on Prosecutorial Strategy, The Hague, 14.09.2006,  at p.5.
362 As  the  Bureau  made  explicit,  ‘the  Court  is  not  a  development  agency…Activities  aimed  at  strengthening  national
jurisdictions  as  set  out  in  this  paper  should  be  carried  forward  by  States  themselves,  together  with  international  and
regional organizations and civil society, exploring interfaces and synergies with the Rome Statute system. Report of the
Bureau on Stocktaking: Complementarity, at para.4.
363 ICC-ASP, Resolution RC/Res.1 (8.06.2010), at paras. 3 and 8.
364 Resolution RC/Res.1 at para.3.
365 Resolution RC/Res.1 at para.5.
366 Resolution RC/Res.1, at para.8.
367 Report of the Bureau on Stocktaking: Complementarity, at para.17.

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In terms of physical infrastructure, international crimes often occur in the context of periods of conflict and
protracted  insecurity.  In  these  situations,  the  basic  physical  infrastructure  of  justice  systems – courtrooms,
prisons  and  detention  centres,  police  or  investigative  facilities  are  under-resourced  or  completely lacking.
Positive  complementarity  can  involve  the  provision  of  assistance  in  the  (re)construction  of  the  necessary
infrastructure to establish an operational system of criminal justice(368).

Whether  directly  or  indirectly  framed  in  terms  of  positive  complementarity  and  accountability  for
international crimes, both the EU and its Member States have long been active in the field of strengthening
the rule of law and justice-sector capacity of states, both within  the Union and  in its external action(369). A
consensus emerged among a number of interviewees, who were of the view that the area in which the EU
and  its  Member  States  can  make  their  most  significant  contribution  to  the  Rome  Statute  system  of
international  criminal  justice  is  in  the  implementation  of  the  principles  of  complementarity  and  positive
complementarity(370).  The  following  two  sections  will  examine  both  measures  that  the  EU  and  its  Member
States have taken, and explores suggestions as to further measures they may consider taking in this regard.

10.2

Member States

The 2011 Decision simply states that the ‘Union and its Member States shall, as appropriate, take initiatives
or measures to ensure the implementation of the principle of complementarity at national level’(371). Despite
the generality of this provision, which may suggest a deference to the competence of EU Member States in
the  area  of  criminal  justice,  it  would  be  misleading  to  think  that  the  EU  has  adopted  a  passive  role  in
strengthening  the  capacity  of  its  Member  States  to  fulfil  the  principle  of  complementarity.  The  Genocide
Network,  established  in  2002  was  designed  specifically  to  enhance  the  capacity  of  EU  Member  States  to
investigate  and  prosecute  international  crimes – including,  but  not  limited  to,  those  within  the  ICC’s
jurisdiction – in an effective manner(372). As discussed in the previous section, the Network was established
to  enhance  intra-EU  cooperation  and  coordination  in  judicial  matters  in  this  regard.  To  that  effect,  the
European  Parliament  has  called  upon  Member  States  to  strengthen  the  role  of  the  Genocide  Network  to
enhance its potential to improve the effectiveness of national investigations(373).

Furthermore,  the  European  Parliament  has  encouraged  Member  States  to  take  measures  to  enhance  their
capacity to investigate and prosecute international crimes. This may be to adopt such legislative measures

368 Report of the Bureau on Stocktaking: Complementarity, at para.17(c).
369 Here,  it  can  be  noted  that  a  number  of  EU  Member  States  are  involved  in  the  ‘Greentree  Process’,  an  initiative
facilitated  by  the  ‘International  Centre  for  Transitional  Justice’  (ICTJ).  One  of  the  initiatives  being  explored  by  the
Greentree  Process  is  the  possibility  of  enhancing  coordination  in  the  implementation  of  the  principle  of  positive
complementarity by developing a centralised system for the assessment of capacity building needs to strengthen the
rule  of  law  and  justice  systems  and  the  deployment  of  assistance  to  meet  those  needs.  While  discussions  have  been
ongoing since the first of the three high level retreats convened at the Greentree Estate in New York in 2010, the process
has yet to yield concrete outcomes. For further information, see ICTJ, Report, 7-9.12.2011.
And ICTJ, Report, 25-26.10.2012.
370Telephone  interview  #01  with  ICC  Official,  03.02.2014;  Telephone  interview  #05  with  ICC  Official,  04.02.2014;
Telephone interview #10 with ICC official, 13.02.2014; Telephone interview #04 with representative of a Non-EU Member
State,  ICC  State  Party  (WEOG  Group),  04.02.2014;  Telephone  interview  #07  with  representative  of  a  non-EU  Member
State,  ICC  State  Party  (GRULAC  Group),  06.02.2014;  Telephone  interview  #03  with  global  NGO  representative  with
experience as a capacity builder, a successful EIDHR applicant and as an ICC consultant, 03.02.2014; Telephone interview
#06 with representative of a local NGO with experience in ICC situation countries, 04.02.2014; Telephone interview #08
with global NGO representative  with experience working with a local NGO and also an unsuccessful EIDHR applicant,
06.02.2014;  Telephone  interview  #11  with  former  representative  of  global  NGO  with experience  as  a  successful  EIDHR
applicant, 14.02.2014; Telephone interview #12 with global NGO representative, 19.02.2014.
371 Article 5, Council Decision 2011/168/CFSP.
372 See also, ‘Fostering a European Approach to Accountability for Genocide, Crimes Against Humanity, War Crimes and
Torture: Extraterritorial Jurisdiction and the European Union’ Final Report, Redress and FIDH, April 2007.
373 European Parliament resolution P7_TA(2011)0507, at para.16.

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as  are  necessary  in  order  to  grant  their  courts  with  jurisdiction  over  those  crimes(374).  It  may  also  involve
ensuring that there exists appropriate expertise among police investigators, prosecutors, judges and military
officials in order ensure that such investigations and prosecutions can been carried out in practice(375), and
to provide training or bilateral technical assistance to that effect.

Beyond  this,  although  Member  States  are  to  be  encouraged  to  engage  either  directly  or  indirectly  in  the
implementation of capacity building and positive complementarity, there is currently little scope for further
action  to  be  taken  by  the  EU  in  order  to  strengthen  Member  State  implementation  of  the  principle  of
complementarity.

10.3

The EU as a Global Actor

The  EU  has  been  one  of  the  primary  protagonists  in  the  implementation  of  the  principle  of  positive
complementarity.  Indeed,  the  Focal  Point  established  by  the  ASP  Bureau  to  coordinate  discussions  at  the
Kampala Review Conference identified 12 examples of pre-existing projects that have helped to strengthen
domestic  capacity  in  a  way  envisaged  by  the  principle  of  complementarity(376).  Of  these  projects,  six  were
either directly implemented by the EU or were enabled by funding contributions by the EU, some of which
will be examined below. Whereas the 2011 Decision is relatively silent on the action that the EU could take in
its  external  relations  to  implement  the  principle  of  complementarity,  the  2012  Strategic  Framework  on
Human  Rights  and  Democracy  and  its  accompanying  Action  Plan  identified  the  promotion  of,  and  the
contribution to, the strengthening of the capacity of national judicial systems to investigate and prosecute
international  crimes,  as  one  of  the key  action  points  for  the  EEAS,  the  Commission  and  EU  Member
States(377).

10.3.1

Political

Emphasis on the principle of complementarity has been one of the key strategies that the EU has adopted
when promoting universality of the Statute and preserving its integrity. To take one example, in response to
the concerns expressed by the US as underpinning its efforts to undermine the ICC in the early years of its
establishment,  the  EU  would  use  the  principle  of  complementarity  to  defend  the  Court  by  observing  its
jurisdictional  limitations(378).  Further,  while  expressing  its  commitment  to  the  ICC,  the  EU  has  at  the  same
time sought to encourage national governments to establish and undertake effective domestic proceedings
– such  as  the  declaration  by  the  Presidency  on behalf  of  the  EU  in  October  2009  with  regard  to  the  post-
election violence in Kenya(379).

In  addition  to  encouraging  Member  States  to  implement  the  principle  of  complementarity,  the  European
Parliament  in  its  2011  Resolution  called  upon  the  EU  and  its  Member States  to  provide  support  to  third
states  to  conduct  their  own  proceedings  to  investigate  and  prosecute  international  crimes(380).  Further  to
this, it  called upon  the EU and its Member States to  mainstream the Rome Statute system of international
criminal  justice  across  all  its  foreign  policy  priorities(381),  and  in  particular  into  all  its  development
programmes  aimed  at  strengthening  the  rule  of  law  and  to  provide  technical  and  financial  assistance  to
third  states  to  enhance  their  capacity  to  effectively  and efficiently  conduct  investigations  into  complex

374 European Parliament resolution P7_TA(2011)0507, at para.42.
375 European Parliament resolution P7_TA(2011)0507, at para. 18.
376 Focal Point’s compilation of examples of projects aimed at strengthening domestic jurisdictions to deal with Rome
Statute crimes, 30.05.2010 (RC/ST/CM/INF.2) (hereafter ‘Focal Point compilation, 30.05.2010’).
377 EU Strategic Framework.
378 Bosnia Mission Mandate in Question as Security Council Debates Legal Exposure of UN Peacekeepers, Press Releasem
10.07.2002 (SC/7445/Rev.1), statement by Ellen Margrethe Løj, Representative of Denmark speaking on behalf of the EU.
379 Declaration by the Presidency on behalf of the European Union on Kenya’ Brussels, 1.10.2009 (13967/09 (Presse 280)).
380 European Parliament resolution P7_TA(2011)0507, at para.41.
381 European Parliament resolution P7_TA(2011)0507, at para.49.

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crimes  such  as  international  crimes(382).  Mainstreaming  the  support  of  the  EU  and  the  Member  States  in
terms  of  positive  complementarity,  is  at  the  heart  of  the  EU’s  policies  and  should  provide  the  necessary
impetus  to further  concrete  EU action.  However,  care should be taken  to clarify the  EU’s understanding of
positive complementarity, including the realisation that the concept does not really involve the creation of
‘mini-ICCs’ at the national level. Instead, what is required is that national jurisdictions are willing and able to
deal  with  core  international  crimes  at  a  level  which  is  satisfactory  within  the  judicial  environment  and  the
practical  realities  that  the  states  in  question  operate  in.  In  addition,  it  would  be  important  for  the  EU  to
consider also how positive complementarity fits with the wider EU agenda, in particular regarding broader
fair trial issues or issues that arise in other EU policies in terms of criminal justice reforms, and it should be
clear  as  to  where  there  are  overlaps  with  the 
justice  understanding  of
international  criminal 
complementarity, and where there are distinctions, what those distinctions are.

10.3.2

Financial

The  EU  has  been  a  major  contributor  to  capacity  building  initiatives  to strengthen  the  ability  of  States  to
fulfil their primary responsibility for the investigation and prosecution of international crimes.

Through  the  EIDHR  instrument,  the  EU  has  funded  the  ICC’s  Trust  Fund  on  ‘Building  Legal  Expertise  and
Fostering Cooperation’(383), NGOs and CSOs that work to promote not just ratification and implementation
of the Rome Statute, but also the values and principles embodied in the Statute – such as accountability and
the rule of law. By strengthening the political demand for accountability at the national level – whether it be
among parliamentarians or by mobilising civil society, these organisations can help create the vital political
environment in which domestic proceedings can take place. Examples of such organisations that have been
funded  through  the  EIDHR  to  this  effect  include  PGA  (see  also  section  6.3.2.)  and  Avocats  Sans  Frontières
(ASF)(384) and in the most recent funding cycle, CILRAP-CMN(385).

The  EU  funding  to  the  above-mentioned  ICC  Trust  Fund  has  enabled  one  of  the  projects  under  the  Trust
Fund, the Legal Tools Project, to promote its external dissemination outside the ICC and has facilitated the
provision of highly specialised training and coaching in their use. Originating out of the OTP, the Legal Tools
provide a ‘comprehensive online or electronic knowledge system, developed to expand an expansive library
of  legal  document  and  range  of  research  and  reference  tools  to  encourage  and  facilitate  the  efficient  and
precise  practice  of  criminal  justice  for  core  international crimes’(386).  By  making  this  technical  resource
universally available, the Project could make a significant contribution to developing national capacity(387).

Until  2010,  the  EIDHR  contributed  financial  assistance  to  the  ICC  Visiting  Professionals  and  Internship
Programmes. The Programmes provided an opportunity for professionals and those interested in the work
of  the  Court  and  international  criminal  justice  to  spend  time  at  the  Court  and  gain  experience  in  the
investigation and prosecution of international crimes which could then be taken back to national systems.
As  the  EU  Focal  Point  has  observed  in  its  2013  submission  to  the  ASP  on  measures  taken  to  promote  the
universality  of  the  Rome  Statute,  the  Programmes  serve  to  strengthen  awareness  of  the  Court’s  mandate
and  how  it  operates – opening  the  potential  for  that  knowledge  to  then  be  further  disseminated  by  the
participants(388).  Similar  projects  were  funded  with  regard  to  the  ICTY,  where  legal  professionals  from  the
former Yugoslavia with a special interest in war crimes and crimes against humanity were selected to assist
the Office of the Prosecutor in the course of trial proceedings in order to develop skills and experience that
would  enhance  the  future  capacity  of  regional  authorities  to  respond  to  complex crimes(389).  Some

382 European Parliament resolution P7_TA(2011)0507, at para.29.
383 See, ICC, Financial Report and Factsheet: Building Legal Expertise.
384 See Focal Point compilation, 30.05.2010.
385 For a project between 2013-2016.
386 Focal Point compilation, 30.05.2010 at p.32.
387 ICC, Press Release 1.11.2013.
388 EU reply to Plan of Action request, at p.8.
389 Focal Point Compilation, at p.20.

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interviewees  expressed  concern  at  the  discontinuation  of  the  Visiting  Professionals  and  Internship
Programmes and the impact it has had on the recruitment of professionals and interns from regions other
than  the  Western  European  and  Other group(390).  The  lack  of  funding  means  that  individuals  from  African
countries in particular, cannot afford to spend time with the Court in an expensive city. Whilst the views on
the  success  of  the  VPI  within  the  ICC  differ(391)  the  long  term  implications  of  this  decision  may  have  an
impact  on  future  engagement  with  the  ICC.  Many  potential  participants  of  today  may  become  the
individuals  upon  whom  the  Court  relies  for  cooperation  in  the  future  once  they  take  positions  in  the
administration of their countries(392).

Over the years, the EIDHR funding has increasingly embraced the idea of building national capacity. In the
most recent call, the implementation of the principle of complementarity was one of the listed priorities(393).
Indeed,  one  of  the  projects  which  was awarded  funding  under  this  Lot,  the  CILRAP-CMN  project  (in
partnership with the University of Nottingham Human Rights Law Centre and the Initiative for International
Criminal  Law  and  Human  Rights)  entitled:  ‘Enhancing  the  Rome  Statute  System:  Supporting  National
Ownership  of  Criminal  Procedures  through  Technology-driven  Services’  falls  squarely  within  positive
complementarity.  The  CMN  Knowledge  Hub  to  be  created  under  this  project,  will  form  the  basis  of  four
thematic toolkits, which will support legal work, policy and advocacy concerning core international crimes
and  serious  human  rights  violations.  Emphasis  will  be  placed  on  ratification,  implementation  and
cooperation;  investigation  and  fact-finding;  case  mapping,  selection  and  prioritisation;  as  well  as case
analysis.  The  toolkits  include:  Databases  and  Manuals;  Thematic  Guidelines;  Advisory  Papers;  Technical
Assistance and Capacity Development Partnerships(394).

Between 2005 and 2009, the EIDHR funded the capacity building work of ASF in the DRC. Initiatives to build
the justice system in the DRC included the training of judges and lawyers, the provision of legal aid and the
dissemination  of  legal  awareness  through  legal  clinics  and  assisting  the  organisation  of  mobile  courts  to
provide justice to remote regions of the country(395).

All the interviewees of this study acknowledged the provision of EU funding for capacity building as being of
paramount  importance  to  the  success  of  positive  complementarity  in  practice(396).  However,  as  a  general
observation, it was noted that information on who are the recipients of grants and what is the substance of
the EU-funded projects is not easily accessible on the EU website(397). This does not aid the visibility of the

390 Telephone  interview  #01  with  ICC  Official,  03.02.2014;  Telephone  interview  #05  with  ICC  Official,  04.02.2014;
Telephone interview #10 with ICC official, 13.02.2014.
391 Telephone  interview  #01  with  ICC  Official,  03.02.2014;  Telephone  interview  #05  with  ICC  Official,  04.02.2014;
Telephone interview #10 with ICC official, 13.02.2014.
392 Telephone interview #05 with ICC Official, 04.02.2014.
393 European Commission, Restricted Call for Proposals 2012 EuropeAid/132762/ACT/Multi’ Brussels, 25.09.2012.
394 CILRAP-CMN,  ‘The  CMN  Knowledge  Hub  and  Thematic  Toolkits  on  Criminal  Justice  for  International  Crimes’
http://www.casematrixnetwork.org/uploads/media/CMN_Knowledge_Hub_Folder__First_Edition.pdf .
395 See Focal Point Complication, at p.8.
396 Telephone interview #01 with ICC Official, 03.02.2014; Telephone interview #03 with global NGO representative with
experience as a capacity builder, a successful EIDHR applicant and as an ICC consultant, 03.02.2014; Telephone interview
#04 with representative of a Non-EU Member State, ICC State Party (WEOG Group), 04.02.2014; Telephone interview #05
with ICC Official, 04.02.2014; Telephone interview #06 with representative of a local NGO with experience in ICC situation
countries, 04.02.2014; Telephone interview #07 with representative of a non-EU Member State, ICC State Party (GRULAC
Group), 06.02.2014; Telephone interview #08 with global NGO representative  with experience working with a local NGO
and also an unsuccessful EIDHR applicant, 06.02.2014; Telephone interview #10 with ICC official, 13.02.2014; Telephone
interview  #11  with  former  representative  of  global  NGO  with  experience  as  a  successful  EIDHR  applicant,  14.02.2014;
Telephone interview #12 with global NGO representative, 19.02.2014.
397 Telephone  interview  #03  with global  NGO  representative  with  experience  as  a capacity  builder,  a  successful  EIDHR
applicant  and  as  an  ICC  consultant,  03.02.2014;  Telephone  interview  #06  with  representative  of  a  local  NGO  with
experience  in  ICC  situation  countries,  04.02.2014;  Telephone  interview  #08  with  global  NGO  representative    with
experience working with a local NGO and also an unsuccessful EIDHR applicant, 06.02.2014.

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work  being  undertaken,  nor  does  it  facilitate  interaction amongst  organisations  who  may  have  similar
mandates or interests, or which would perhaps like to form partnerships with organisations benefitting from
EIDHR funding(398). In addition, it does not aid  transparency nor does  it inspire confidence in the selection
process(399). Nevertheless, interviewees felt that the fact that the EIDHR funded NGOs and CSOs is perhaps
one of the main strengths of EU support overall. In terms of accessibility to grants, it was felt that funding did
not appear to be restricted to global NGOs and it was equally accessible to local NGOs(400) who partner up
with international partners, appropriately balancing what the states need on the ground with the needs of
the ICC(401). However, it was  noted by one of the interviewees that the EIDHR funding appears  to be more
accessible to local NGOs from situation countries, rather than other countries who have faced mass violence
which  however  is  not  (yet)  under  ICC  scrutiny(402).  In  such  instances,  the  only  available  avenues  for  core
crimes  related  work,  is  almost  exclusively  through  the  UN  Development  Programme  (‘UNDP’)  which  does
not have a clear mandate to fund ICC-related issues(403). With regard to the application process of the EIDHR
funding it was observed by  an assessor of EU funding applications, that  although the selection criteria are
clear, the indicators used to assess the impact envisaged, could be easily manipulated(404). Applicants have
become  increasingly  sophisticated  at  being  able  to  ‘speak  the  language’  of  the  funder  in  order  to  be
successful,  regardless  of  any  real  evidence  of  how  the  anticipated  results  will  indeed  be  achieved(405).
However, this is a general problem across the funding sector, and not one linked to a specific EU policy(406).

Leaving the intricacies of funding applications to one side, the length of time between funding cycles needs
to be considered as well. Whereas three year funding cycles are in fact welcomed by some beneficiaries, as
they allow them to plan longer term, it should be examined whether such intervals between funding periods
are appropriate for the enhancement of national capacity(407). As the situation on the ground can be volatile
and  the  capacity  needs  of  national  legal  orders  may  change  in  ways  that  do  not  necessarily  conform  to
funding patterns, it might be more appropriate to make more short-term funding available in a way similar
to  other  issue-based  funds(408).  Perhaps  inclusion  of  positive  complementarity  work  in  other  areas  the  EU
influences,  such  as  that  of  Conflict  Prevention,  Peace  Building  and  Mediation  would  constitute  a  good
avenue to enhance this type of work(409).

10.3.3

Technical

-

The Complementarity Toolkit

In  2013,  the  European  Commission  and  the  EEAS  released  a  Joint  Staff  Working  Document  aimed  at
providing practical guidance to EU officials and Member States regarding the measures that can be taken in
order  to  reinforce  national  justice  systems  so  that  they  can  investigate  and  prosecute  international

398 Telephone  interview  #03  with global  NGO  representative  with  experience  as  a capacity  builder,  a  successful  EIDHR
applicant and as an ICC consultant, 03.02.2014.
399 Telephone  interview  #08  with  global  NGO  representative    with  experience  working  with  a  local  NGO  and  also  an
unsuccessful EIDHR applicant, 06.02.2014.
400 Telephone interview #06 with representative of a local NGO with experience in ICC situation countries, 04.02.2014.
401 Telephone interview #06 with representative of a local NGO with experience in ICC situation countries, 04.02.2014.
402 Telephone interview #06 with representative of a local NGO with experience in ICC situation countries, 04.02.2014.
403 Telephone interview #06 with representative of a local NGO with experience in ICC situation countries, 04.02.2014.
404 Face to face interview #01 with EU Assessor, 29.01.2014.
405 Face to face interview #01 with EU Assessor, 29.01.2014.
406 Telephone  interview  #03  with global  NGO  representative  with  experience  as  a capacity  builder,  a  successful  EIDHR
applicant and as an ICC consultant, 03.02.2014.
407 Telephone  interview  #03  with global  NGO  representative  with  experience  as  a capacity  builder,  a  successful  EIDHR
applicant and as an ICC consultant, 03.02.2014.
408 e.g.  Annual  Action  Programme  2013  for  the  European  Instrument  for  Democracy  and  Human  Rights  (EIDHR)  to  be
financed under budget line 19 04 01 of the general budget of the European Union
http://webcache.googleusercontent.com/search?q=cache:http://www.eidhr.eu/files/dmfile/AAP2013.pdf/.
409 Telephone interview #09 with EU official, 07.02.2014.

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crimes(410). This ‘Complementarity Toolkit’ addresses the political, legal and development dimensions to the
principle of complementarity and can be seen as a useful mechanism to assist the process of mainstreaming
the  implementation  of  the  principle  across  all  relevant  EU  policies  and  activities.  A  very  comprehensive
document,  it  identifies  the  importance  of ensuring  accountability  for  lasting  peace  and  security  and
sustainable development – thereby placing it at the centre of EU foreign policy, and continues by providing
a  detailed  guide  for  developing  effective  programmes  to  advance  the  principle  of  complementarity.
Although it is very early to assess its effectiveness, the early signs suggest that this document will form the
basis  of  all  EU  action  on  complementarity.  Cascading  the  information  on  as  many  potential  users  of  the
toolkit  as  possible  will  be  key to  its  success  once  implementation  of  the  Toolkit  gets  underway.  The
document  has  been  hailed  as  a  positive  development  amongst  all  interviewees(411).  However,  in-depth
knowledge  of  its  contents  varied  significantly.  Whereas  most  ICC  officials  interviewed  in  the  course  of  the
study were aware of it (one however was unaware that it had been adopted(412)), knowledge amongst state
representatives varied,  and  was largely dependent on whether  the state in question  has a keen interest in
the  ICC  and  takes  an  active role  at  the  ASP.  Awareness  of  the  Toolkit  was  also  largely  dependent  on  the
geographical  provenance.  Awareness  was  significantly  lower  amongst  NGO  representatives,  particularly
those  coming  from  situation  countries,  or  outside  the  EU.  Further  promotion  of the  toolkit  is  therefore
needed.  Perhaps  also  updating  the  list  of  experts  on  the  EU  list  could  be  beneficial  in  this  respect  (see
section 6.3.3), as they could then be used to disseminate information on the Toolkit through their networks.

One interviewee, noted the absence of any discussion of international criminal justice or the ICC (and related
matters)  at  a  recent  expert’s  event  organised  by  the  Konrad-Adenauer  Stiftung  and  CARE  International
addressing  the  ‘The  EU’s  Comprehensive  Approach  in  External Conflict  and  Crisis:  From  Strategy  to
Practice’(413).  This  was  despite  the  fact  that  the  meeting  focussed  upon  response  mechanisms  to  ongoing
situations  of  insecurity  and  conflict,  and  in  particular  upon  the  ongoing  situations  in  the  Central  African
Republic and Syria – the former being subject to a preliminary investigation by the ICC OTP. Even in the case
of Syria, while not currently before the ICC, it has been the subject of repeated calls, including by EU Member
States,  to the UN Security Council for referral to the ICC. In the view of this  interviewee, when considering
the  effectiveness  of  the  EU’s  mainstreaming  of  support  for  the  ICC  and  the  system  of  justice  and
accountability  that  it  embodies,  the  area  of  conflict  response  would  seem  an  area  of  priority  wherein  to
translate  political  commitment  into  ‘concrete  action  on  the  ground’(414).  Accordingly,  incorporating  the
Toolkit into the Comprehensive Approach to conflict prevention and crisis management could be one way
in  which  to  enhance  the  EU’s  mainstreaming  of  its  support  for  the  ICC  in  its  external  relations.  A  starting
place, might be, for example, to update and endorse the information presented in the Factsheets within the
Mediation Support Project in order to include information about the Complementarity Toolkit. (415).

The Role of the EU delegations

EU  delegations  play  a  vital  role  in  promoting  support  of  the  ICC,  particularly  in  those  countries  currently
under ICC preliminary investigation, or indeed in situation countries. They are the eyes and ears of the EU in
the  field  and  they  should  be  able  to  pass  on  relevant  information  both  back  to  Brussels,  but  also  to  those
who seek their assistance for country-specific issues. Indeed the positive contribution  of EU delegations  to

410 Joint staff working document on advancing the principle of complementarity: Toolkit for bridging the gap between
international and national justice, Brussels 31 January 2013 (SWD(2013) 26 final), at p.2.
411 Telephone  interview  #01  with  ICC  Official,  03.02.2014;  Telephone  interview  #02  with  EU  Official,  03.02.2014;
Telephone  interview  #04  with  representative  of  a  Non-EU  Member  State,  ICC  State  Party  (WEOG  Group),  04.02.2014;
Telephone interview #05 with ICC Official, 04.02.2014; Telephone interview #09 with EU official, 07.02.2014.
412 Telephone interview #10 with ICC official, 13.02.2014.
413 See Konrad Adenauer Stiftung, ‘The EU’s Appraoch in External Conflict and Crisis: From Strategy to Practice’, Expert’s
Meeting,  Brussels,  12.02.2014,  available  at https://www.kas.de/wf/en/17.58413/ .  Telephone  interview  #12  with  global
NGO representative, 19.02.2014.
414 Telephone interview #12 with global NGO representative, 19.02.2014.
415 e.g. ‘Transitional Justice in the context of Peace Mediation, Factsheet, November 2012.

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the work of  capacity  builders was noted by a number of interviewees(416). However, it  was also noted that
despite efforts to cascade information to EU delegations, sometimes knowledge of the latest EU policies on
the ICC is lacking. To address this, the EEAS organised a seminar to which EU staff were invited to apply(417).

Further,  there  seems  to  be  a  segregation  within  EU  delegations  between  personnel  holding  the  NGO  and
the Government file in a given country. This may work well in most instances, but in the case of ICC capacity
building  provided  for  by  NGOs  that  are  funded  by  the  EIDHR  for  the  benefit  of  the  local  government,  this
might not be the most efficient structure of support and does not seem to match the purposes of the work
that is being done(418). Whilst this is often a result of the way delegations are organised at the local level, and
perhaps also dependent on individual personalities(419), greater connection between the type of work that
the EU funds and the operationalisation within EU delegations in practice, would be beneficial to the overall
objective of strengthening national capacity.

10.4

Recommendations

10.4.1

Member States



Include  the  ICC  crimes  in  the  list  of  crimes  over  which  the  EU  has  competence  under
Article 83(1) TFEU in order to ensure that all EU Member States are able to implement the
principle of complementarity.

10.4.2

EU















Update  the  list  of  experts  maintained  by  the EU  Focal  Point and  disseminate  its
availability to EU delegations, third states, Member States and civil society organisations in
order to strengthen assistance;
Widen  dissemination  of  the  Complementarity  Toolkit,  particularly  among  State
representatives and NGO organisations;
Mainstream positive complementarity in other areas of EU external action, such as conflict
prevention, stability and mediation;
Update the Factsheets of the EEAS Mediation Support Project, in particular the document
on ‘Transitional Justice in the Context of Peace Mediation’ in order to include information
on the Complementarity Toolkit;
Encourage funding applications by organisations working in all countries that have faced
mass violence, irrespective of whether they form the basis of an ICC investigation;
Enhance the accessibility of information on the EIDHR website regarding past and present
grant recipients;
Ensure that positive complementarity is mainstreamed within the context of other areas
of  EU  activity,  particularly  rule  of  law  policies  and  those  relating  to  fair  trial  issues  and
criminal justice reforms.

416 Telephone  interview  #03  with global  NGO  representative  with  experience  as  a capacity  builder,  a  successful  EIDHR
applicant and as an ICC consultant, 03.02.2014.
417 There were 37 participants in total, 12 from headquarters, 16 from EU delegation and 9 from Member States, as the
seminar was also open to Member States. Telephone interview #09 with EU official, 07.02.2014.
418 Telephone  interview  #03  with global NGO  representative  with  experience  as  a capacity  builder,  a  successful  EIDHR
applicant and as an ICC consultant, 03.02.2014.
419 Telephone interview #09 with EU official, 07.02.2014.

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11.

CONSOLIDATED FINDINGS

The EU and its Member States have long been the staunchest supporters of the ICC – both politically and in
terms  of  technical  and  financial  support.  The  Union,  supporting  the  values  and  principles  of  the  ICC,  was
instrumental to getting the institution off the ground. A wealth of policies affecting Member States and the
Union  in  their  external  relations  have  been  put  forward  and  have  been  particularly  successful.  In  terms  of
visibility,  there  is  a  high  degree  of  prominence  of  the  EU’s  support  for  the  ICC  within  the  European
geographical area,  among  Member  States(420),  the  Union  itself(421),  NGOs(422),  as  well  as  situation  countries
where the EU has been engaged(423). However, visibility among state representatives and NGOs from other
regions varies greatly(424). Some interviewees from non-EU Member States, although aware of the existence
of EU policies on the ICC, were of the view that European action in support of the ICC is primarily channelled
through individual European states rather than through  the Union speaking in one voice(425). For instance,
while  there  is  a  high  degree  of  unity  visible  when  it  comes  to  matters  relating  to  cooperation,  there  is  a
perception of greater fragmentation in other areas, such as budgetary matters(426).

The five areas of priority identified by the 2011 Decision have provided an effective structure through which
to  assess  the  EU’s  support  for  the  ICC.  Each  of  these  areas  implicates  both  internal  (Member  States)  and
external (the EU as a global actor) dimensions. Coordination of the implementation of these dimensions is an
ongoing  process.  As  seen  in  the  sections  above,  the  policy  framework  does  not  equally  engage  both
dimensions at all times. This is down to the constitutional architecture of the Union and the type of policy
involved. However, for effective mainstreaming, emphasis should be placed on those areas that have been
under-utilised. Although there is  greater scope  for impact in the external dimension  of the Union’s  action,
attention  should  be  directed  to  identifying  those  internal  areas  that  would  be  suitable  for further
development.

Of  particular  strength  have  been  the  initiatives  to  promote  universality  through  ratification  of  the  Rome
Statute.  However,  more  work  remains  to  be  done  in  terms  of  full  implementation  of  the  Statute  within
national  legal  orders – both  within  Member  States  as  well  as  third  states.  Universality  can  also  be
strengthened  by  ensuring  that  the  ICC  is  consistently  placed  on  the  agenda  and  raised  in  the  course  of
interactions with third states. In addition, by ensuring that these initiatives are visible and prominent as well
as widely disseminated, this can catalyse action by local, regional and international actors, to entrench and
enhance the goals pursued by the EU(427).

420 Unofficial interviews with Member State representatives.
421 Telephone interview #02 with EU Official, 03.02.2014; Telephone interview #09 with EU official, 07.02.2014.
422 Telephone  interview  #03  with global  NGO  representative  with  experience  as  a capacity  builder,  a  successful  EIDHR
applicant  and  as  an  ICC  consultant,  03.02.2014;  Telephone  interview  #06  with  representative  of  a  local  NGO  with
experience in ICC situation countries, 04.02.2014; Telephone interview #12 with global NGO representative, 19.02.2014;
Telephone  interview  #11  with  former  representative  of  global  NGO  with  experience  as  a  successful  EIDHR  applicant,
14.02.2014.
423 Telephone  interview  #06  with representative  of  a  local  NGO  with  experience in  ICC  situation  countries,  04.02.2014.
Similar views have been expressed in the course of informal interviews with African state representatives.
424 Telephone interview #07 with representative of a non-EU Member State, ICC State Party (GRULAC Group), 06.02.2014;
Telephone  interview  #08  with  global  NGO  representative    with  experience  working  with  a  local  NGO  and  also  an
unsuccessful EIDHR applicant, 06.02.2014.
425 Telephone interview #04 with representative of a Non-EU Member State, ICC State Party (WEOG Group), 04.02.2014;
Telephone interview #07 with representative of a non-EU Member State, ICC State Party (GRULAC Group), 06.02.2014.
426 Telephone interview #05 with ICC Official, 04.02.2014.
427 Telephone  interview  #08  with  global  NGO  representative    with  experience  working  with  a  local  NGO  and  also  an
unsuccessful EIDHR applicant, 06.02.2014.

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Whereas  the  promotion  of  the  integrity,  independence,  effectiveness  and efficiency  lies  primarily  with  the
ICC and the ASP as the overseeing body, some of the EU’s initiatives have been influential and engagement
should continue.

Member  States  and  the  EU  have  a  significant  role  to  play  in  the  area  of  cooperation.  In  particular,  EU
initiatives  can  help  counter  instances  of  non-cooperation.  In  terms  of  political  support,  taking  a  strong
position  in  public  to  foster  cooperation  with  the  ICC  is  particularly  effective.  In  addition,  the  technical
support  that  the  EU  can  offer  in  order  to  enhance  cooperation  with  the  Court  can  provide  tangible
outcomes,  for  example  in  the  context  of  witness  protection  and  asset  freezing.  Similarly,  without  the  EU’s
financial support of initiatives to promote cooperation, the ICC would have been in a much worse position.

Perhaps the area  where  the  EU can  make  its greatest contribution  yet  is  that of positive  complementarity.
The  recent  adoption  of  the  Complementarity  Toolkit  is  therefore  of  paramount  importance.  Besides
demonstrating a strong political commitment, it is the funding that is made available to implement positive
complementarity  that  has,  and  will  continue  to  have,  a  transformative  effect.  However,  the  technical
assistance that the Member States and the EU could provide in that respect remains under-utilised.

The  main  finding  of  this  study  is  that  with  the  institution  building  process  complete,  and  the  ICC  fully
functional,  it  is  time  to  consider  whether  a  shift  in  the  EU’s  attention  is  needed.  Now  the  EU’s  support  is
fundamental in order to ensure that the ICC can work effectively and meaningfully or else it will become ‘a
very  expensive  experiment’(428).  Whilst  undeniably,  the  political  support  ought  to  remain  strong,  placing
increased emphasis upon assisting the Court in the performance of its everyday operations as well as filling
the gaps inherent in the Rome Statute system of international criminal justice, would be where the EU can
leave its greatest mark. Focusing therefore on technical and financial assistance is the way forward.

Whilst acknowledging that the implementation of the Action Plan involves a step-by-step process, it would
be  important  to  identify  and  prioritise  those  aspects  of  the  Action  Plan  that  have  not  been  implemented
fully to date. In order to do this, each of the main players might consider the following suggestions:











COJUR-ICC: Given  that  presidency  of  the  COJUR-ICC  rotates  bi-annually  with  the  Presidency  of  the
Council,  there  is  the  potential  that  different  priorities  may  be  pursued,  affecting  continuity(429).
Consideration should therefore be given to the possibility of making technical and bilateral assistance a
standing item on the COJUR-ICC’s agenda, in addition to the particular priorities of a given Presidency;
Genocide  Network/GENVAL: To  further  explore  the  possibility  of  widening  the  list  of  crimes  falling
within  the  competence  of  the  EU  under  Article  83(1)  TFEU  to  include  the  core  international  crimes  as
defined  in  the  Rome  Statute  in  order  to  strengthen  the  effectiveness  of  measures  to  ensure  internal
consistency in the full implementation of the Statute and to enable the EU to adopt additional measures
to cooperate directly with the Court. Further, they should consider the formulation of an Action Plan and
Task Force to increase the efficiency in combating impunity within the EU;
Parliament: To  continue  with  the  political  support  across  all  areas,  but  to  make  better  use  of  the
standing  committee  structure  and  individual  MEPs  who  can  take  a  leading  role  in  adopting  a  more
hands on promotion of universality;
Commission: To  keep  under  review  the  degree  to  which  the  ICC  and  international  criminal  justice
related issues are mainstreamed across the different instruments;
EU  Focal  Point: The  establishment  of  an  EU  Focal  Point  has  been  instrumental  to  the  success  with
which  the  support  for  the  ICC  and  the  Rome  Statute  system  has  been  mainstreamed  across  the  EU’s
policies.  The  scope  of  the  Focal  Point’s  remit  is  quite  extensive.  Consideration  should  be  given  to
strengthening the Focal Point by offering greater support;

428 Telephone  interview  #08 with  global  NGO  representative    with  experience  working  with  a  local  NGO  and  also  an
unsuccessful EIDHR applicant, 06.02.2014.
429 Telephone interview #09 with EU official, 07.02.2014.

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



In  addition,  the EU  Network  of  Focal  Points envisaged  by  the  2011  Action  Plan,  although  not  fully
implemented to date, could be an important player in facilitating the effective and efficient delivery of
technical  and  financial  assistance.  Also,  updating  the  list  of  experts  able  to  assist  with  this  technical
assistance would bring cross-cutting benefits to the implementation of the EU’s policy objectives;
EEAS and EU Delegations: To ensure that there is consistency in the way the ICC and the fight against
impunity are raised in all actions in relation to third states, including but not limited to, ICC clauses and
demarches. Full use should also be made of the local knowledge and resources of EU delegations on the
ground.

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PART  THREE:  THE  EU, AFRICA  AND  THE  ICC – PROSPECTS  AND
CHALLENGES

12.

CASE STUDY: AFRICA AND THE ICC

When  talking  about  ‘Africa  and  the  ICC’  it  is  now  familiar  to  talk  about  a  dynamic  of  tension,  crisis,  and
opposition(430). Yet, from the Court’s infancy, the states of the African continent have been at the forefront of
shaping and supporting the development of the ICC system of international criminal justice. 34 of the 122
State Parties to the Rome Statute are African, making the African regional grouping the largest grouping of
State Parties. Mali, a state subject to investigations by the ICC, is one of the State Parties to have entered into
an enforcement of sentences agreement with the Court(431). The notion that states might make ‘self-referrals’
to  the  ICC,  i.e.  referrals  of  situations  involving  the  state  concerned,  was  not  something  anticipated  by  the
drafters of the Statute. Yet the first three situations investigated by the Court, those of the DRC, Uganda and
the CAR all arose out of self-referrals made by national  governments. More recently, the investigation into
the situation in Mali too was initiated on the basis of a self-referral by government authorities (see Part One,
section  3).  In  this  most  recent  case,  one  week  before  the  self-referral,  a  seven  member  ECOWAS  contact
group comprising Benin, Burkina Faso, Côte d’Ivoire, Liberia, Niger, Nigeria and Togo called upon the ICC to
initiate an investigation into the situation in Mali(432).

Despite this, throughout the previous Part it was observed that many of the most pressing challenges faced
by the ICC – in particular, with regard to obtaining cooperation and preserving the integrity of the Statute –
have  arisen  out  of  the  context  of  the  Court’s  proceedings  concerning  African  states.  At  the  same  time,
despite  high  profile  instances of  non-cooperation  by  certain  African  governments  in  the  execution  of
specific  arrest  warrants  issued  by  the  ICC  against  Sudanese  indictees  President  Omar  al  Bashir  and  Abdel
Raheem Muhammad Hussein, African states – as the states subject to the highest volume of formal requests
for cooperation by the Court - have in the majority of cases, complied(433).

This section will provide an overview of the current status and root causes of the tensions before moving on
to consider what role the EU and its Member States can play in order to ameliorate these situations. When
doing  so,  attention  must  be  paid  to  all  of  the  thematic  objectives  identified  in  the  2011  Decision – in
particular the need to preserve the Court’s independence and promote its effectiveness. While of course, EU
support to the ICC on this particular topic is intended precisely to support its effectiveness, caution must be
exercised so as not to unintentionally jeopardise both the Court’s actual and perceived independence.

European and western support for the ICC has been misconstrued and misrepresented(434). Throughout this
study, it has been observed that the EU and its Member States’ support for the Court has been instrumental
in  its  achievements  to  date.  For  critics  of  the  Court  however,  together  with  the  allegations  of  anti-African
bias, such a level of support for the Court by the EU and its Member States has itself taken to reinforce the
argument that the ICC is Europe’s Court for Africa, or the ‘European International Criminal Court’(435). Implicit
in this argument is the accusation that the ICC’s overwhelming reliance on European donors – whether it be
the  EU  or  its  Member  States – has  negative  consequences  on  the  Court’s  independence  and  impartiality

430 ANICJ, Report, January 2014.
431 Accord entre la Cour pénale internationale et le Gouvernement de la République du Mali concernant l’exécution des
peines prononcées par la Cour, 13.01.2012 (ICC-PRES/11-01-12).
432 ICC-OTP Situation in Mali, Article 53(1) Report (16.01.2013) at para.20.
433 See  Botswana’s  statement  voting  against  an  AU  Decision  against  the  ICC  in  May  2013;  discussed  at  Du  Plessis,
December 2013, at p.7.
434 See Kimenyi, 17.10.2013.
435 An  illustrative  example  of  the  anti-ICC  arguments  include  ‘Who  Pays  for  the  ICC’ African  Business available  at
http://www.africanbusinessmagazine.com/special-reports/sector-reports/icc-vs-africa/who-pays-for-the-icc;  Hoile,  1
March 2012. See also Kimenyi, 17.10.2013.

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from  those financial backers(436). While little – if any – evidence has been  adduced to establish a causative
relationship between the source of ICC funding and the Court’s activities and decisions, the mere suspicion
(however substantiated) can itself be of damage both to the Court’s credibility and that of the EU.

Interventions  by  the  EU  and  its  Member  States  on  behalf  of  the  ICC  specifically  (rather  than  the  system  of
international criminal justice in general) and with regard to specific cases and investigations must be taken
with caution  and  within  the  appropriate  fora  in  order  to  avoid  the  risk  of  prejudicing  the  Court’s
independence and autonomy. Equally, from the perspective of the EU, it is important that it charts a cautious
path. Given the tenor of the political debate – often drawing upon anti-colonial rhetoric – it is necessary that
the EU does not get drawn into that same narrative, and, in doing so, jeopardise the partnerships that it has
developed both bilaterally with African states and with the African Union(437). In this context, the EU might
have an important conciliatory role to play. Against the apparent tide of widening antagonism, the EU, less
encumbered  by  the  colonial  legacies  of  some  of  its  Member  States,  can  play  an  important  role  in
emphasising the strength in the EU-Africa partnership. To this effect, while the EU must continue to uphold
its  commitment  to  international  criminal  justice  and  the  full  integrity  of  the  ICC  system,  it  should  use
opportunities like the upcoming EU-Africa Summit in April 2014 to reinforce the strength of the relationship
between  the  two  regions – their  common  goals  and  commitment  to  the  same  values  and  principles,
including  international  criminal  justice(438).  At  the  same  time,  there  could  be  room  for  Member  States  to
focus on their bilateral relations with those African states with which they have stronger ties. For example,
France  with  francophone  African  states,  or  the  UK  with  Anglophone  African  states,  or  Germany,  through
development ties(439).

A  strong  alliance  between  the  regions – both  at  the  bilateral  and  multilateral  levels – will  create  the
environment  for  more  effective  cooperation  between  those  parties,  ultimately  to  the  benefit  of  the  Court
and  the  wider  international  criminal  justice  system.  After  all,  together,  African  states and  the  EU  Member
States constitute of half of the State Parties to the Rome Statute; it is in the interests of both regions to work
together in this regard.

Given  the  legal  and  political  realities  of  ICC  jurisdiction,  it  is  most  likely  that  the  ICC  will  continue  to  be
primarily  occupied  with  situations  that  concern  states  with  weaker  justice  systems  and  those  with  less
political influence to thwart effective ICC investigations. At the same time, the ICC will continue to rely upon
particularly the EU and its Member States to provide the necessary political, practical and financial support
for it to be able to effectively pursue its activities. All individuals interviewed agreed that the question is not
whether  the  EU  should  continue  to  take  such  leading  role in  support  of  the  ICC  system  of  international
criminal justice, but how it should be delivered(440).

436 See  ‘Who  Pays  for  the  ICC’ New  African  Business available  at http://www.africanbusinessmagazine.com/special-
reports/sector-reports/icc-vs-africa/who-pays-for-the-icc.
437 As one interviewee observed, there is a limit to what the EU and its Member States can do in this regard, since their
advocacy for the ICC might be misconstrued as evidence to vindicate the ‘neo-colonial’ or western critique of the ICC.
Telephone interview #10 with ICC official, 13.02.2014. See also, Telephone interview #12 with global NGO representative,
19.02.2014.
438 Telephone interview #09 with EU official, 07.02.2014.
439 Telephone  interview  #05  with  ICC  Official,  04.02.2014;  Telephone  interview  #06  with  representative  of  a  local  NGO
with experience in ICC situation countries, 04.02.2014.
440 Telephone  interview  #05  with  ICC  Official,  04.02.2014;  Telephone  interview  #01  with  ICC  Official,  03.02.2014;
Telephone interview #10 with ICC official, 13.02.2014; Telephone interview #09 with EU official, 07.02.2014;  Telephone
interview #12 with global NGO representative, 19.02.2014; Telephone interview #11 with former representative of global
NGO with experience as a successful EIDHR applicant, 14.02.2014; Telephone interview #04 with representative of a Non-
EU Member State, ICC State Party (WEOG Group), 04.02.2014; Telephone interview #07 with representative of a non-EU
Member State, ICC State Party (GRULAC Group), 06.02.2014.

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12.1

The Al Bashir Arrest Warrant

The  emergence  of  discontent  with  the  ICC’s  focus  on  African  situations  coincided  with  the  issue  of  the
Court’s first warrant for the arrest of a sitting head of state, President Omar Al Bashir of Sudan in March 2009.
Claiming  head  of  state  immunity,  President  Al  Bashir  and  his  allies  have  condemned  the  Court  and  have
refused to cooperate. Both States Party to the Rome Statute (including Chad, Djibouti, Malawi, Nigeria, and
Kenya)(441)  and  Non-State  Parties  (including  Qatar,  China,  Libya,  Kuwait  and  Ethiopia)(442)  have  declined  to
arrest  President  Al  Bashir  upon  his  visit  to  their  countries.  Article  27  of  the  Rome  Statute  explicitly  rejects
head of state immunity for the purposes of ICC jurisdiction. Indeed, the removal of head of state immunity is
one of the core principles of the Rome Statute and a cornerstone of the fight against impunity and justice for
atrocities. For this reason efforts to reinstate any form of legal or de facto immunity constitute a direct threat
to the integrity of the Statute (see Part Two, section 7).

For those who reject the legality of the arrest warrant, or deny a legal obligation to execute the warrant, it
has been argued that because Sudan is not a party to the Rome Statute, Al Bashir is entitled to head of state
immunity as a serving head of state under customary international law(443). However, because the situation
in Darfur was referred to the ICC by the Security Council, acting upon its Chapter VII  mandate, all Member
States  of  the  UN  are  bound  to  comply  with  the  terms  of  that  Resolution(444).  On  this  basis, through  the
Security Council Resolution, the Rome Statute – including Article 27 - applies to Sudan and in effect, through
the Resolution, Sudan becomes a de facto party to the Rome Statute. On this basis, Al Bashir does not enjoy
immunity  and  under  the  ICC  system  states  are  under  an  obligation  to  comply  with  the  arrest  warrant  and
arrest him should he come within their jurisdiction(445). In contrast, since Resolution 1593 only ‘urges’ Non-
State Parties to cooperate with the Court, it does not create a binding obligation upon non-states parties, it
only encourages them to do so(446).

The  apparent  institutionalisation  of  non-cooperation  among  African  states  emerged  in  July  2009,  shortly
after the ICC issued the warrant for the arrest of President Al Bashir, when the African Union (AU) passed a
decision  forbidding  its  Member  States  from  cooperating  with  Court in  respect  of  its  proceedings  against
President  Al  Bashir(447).  The  AU  subsequently  urged  its  Member  States  to  comply  with  that  decision(448),
reminding them of the ability of the AU to impose sanctions upon Member States that fail to comply with

441 Report  on  the  Bureau  on  non-cooperation,  7  November  2013  (ICC-ASP/12/34)  ;  Report  of  the  Bureau  on  non-
cooperation,  1.11.2013 (ICC-ASP/11/29)  ; The  Prosecutor  v  Omar  Hassan  Ahmad  Al  Bashir,  Decision  regarding  Omar  Al-
Bashir’s visit to the Federal Republic of Nigeria, 15.07.2013 (ICC-02/05-01/09-157); The Prosecutor v Omar Hassan Ahmad
Al Bashir, Decision pursuant to Article 87(7) of the Rome Statute on the failure by the Republic of Mali to comply with the
cooperation  requests  issued  by  the  Court  with  respect  to  the  arrest  and  surrender  of  Omar  Hassan  Ahmad  Al  Bashir,
12.12.2011 (ICC-02/05-01/09-139); The Prosecutor v Omar Hassan Ahmad Al Bashir, Decision informing the United Nations
Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory
of  the  Republic  of  Kenya,  27.08.2010  (ICC-02/05-01/09-107)  ; The  Prosecutor  v Omar  Hassan  Ahmad  Al  Bashir,  Decision
informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-
Bashir’s recent visit to Djibouti, 12.05.2011 (ICC-02/05-01/09-129).
442 BBC News, 27.06.2011.
443 Special segment  as  requested  by  the  African  Union:  “Indictment  of  sitting  Heads  of  State  and  Government  and  its
consequences  on  peace  and  stability  and  reconciliation”,  Informal  Summary  by  the  Moderator,  27.11.2013  (ICC-
ASP/12/61), speech by Professor M. Cherif Bassiouni.
444 SC Res 1593 (2005).
445 Akande, 2009.
446 See The Prosecutor v Omar Hassan Ahmad Al Bashir, Decision Regarding Omar Al-Bashir’s Potential Travel to the Federal
Republic of Ethiopia and the Kingdom of Saudi Arabia, 10.10.2013 (ICC-02/05-0/09-164) at para.8.
447 Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC),
1-3.07.2009 (Assembly/AU/Dec.245 (XIII) Rev.1), at para.10.
448 Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/Dec.270 (XIV)
on  the  Second  Ministerial  Meeting  on  the  Rome  Statute  of  the  International  Criminal  Court  (ICC)  31.01– 2.02.2010
(Assembly/AU/Dec.296 (XV)) at para.5-6.

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decisions  and policies  of  the  AU  in  accordance  with  Article  23(2)  of  the  Constitutive  Act  of  the  African
Union(449).

Here it is important to reiterate that the concern to preserve the immunity of heads of state appears to be
limited  to sitting heads  of  state,  rather  than  those  who  have  left  office – either  as  an  outcome  of  the
democratic  process  or  as  an  outcome  of  non-democratic  overthrow.  For  example,  proceedings  against
former President of Côte d’Ivoire, Laurent Gbagbo, instituted following his deposal, have not attracted  the
same  opposition  as  those  against  Al  Bashir,  Kenyatta  and  Ruto.  Further,  the  amendments  to  the  Rome
Statute  proposed  by  Kenya  only  sought  to  reinstitute  immunity  for  state  officials  for  the  duration  of  their
time in office(450).

Non-cooperation with regards to the warrants for the arrest of Al Bashir not only impacts upon the Court’s
progress  in  that  case,  but  also  has  implications  for  the  integrity  of  the  Statute.  The  failure  to  act  upon  the
arrest  warrant,  especially  by  State  Parties – reinforces  a culture,  or  perceived  acceptability,  of  impunity –
undermining the very essence of the Statute.

12.2

The Kenyan Situation

The  most  pressing  threat  to  the  integrity  to  the  Statute  has  arisen  out  of  the  backlash  against  the  Court’s
proceedings  against  President Uhuru  Kenyatta  and  his  Deputy,  William  Ruto,  of  Kenya.  Although  also
concerning  the  prosecution  of  heads  of  state,  the  Kenyan  situation  is  notably  different  to  that  concerning
the Al Bashir arrest warrant. From a legal standpoint, the uncertainties witnessed in the context of the Darfur
situation as to the obligations of states – both the situation state and other states – to cooperate with the
ICC,  are  not  present  in  the  context  of  Kenya.  As  a  State  Party  to  the  Rome  Statute,  Kenya  is  under  an
obligation to  comply  and  cooperate  fully  with  the  Court,  and  in  case  of  doubt,  Article  27  of  the  Statute
removes any immunity from prosecution that Kenyatta and Ruto may enjoy under customary international
law. Whilst indicted individuals have voluntarily answered summonses to appear before the Court and have
generally been attending proceedings when required, cooperation by Kenya in other areas has not been as
forthcoming(451).

The  political  climate  surrounding  the  ICC  proceedings  against  Kenyatta  and  Ruto  has  continued  to
deteriorate.  Measures  adopted  by  Kenyan  political  bodies,  statements  by  other  African  states,  as  well  as
initiatives by the African Union combined with the resolute position of other stakeholders in backing the ICC
proceedings  against  the  two  individuals  concerned  helped  foster  a  widening  rift.  Those  opposing  the  ICC
position have focussed their efforts on three different avenues of action; political statements – including the
motions  and  decisions  of  national  and  multilateral  bodies,  efforts  to  obtain a  deferral  of  the  proceedings
against  Kenyatta  and  Ruto  by  the  Security  Council  under  Article  16  of  the  Rome  Statute,  and  finally  the
pursuit of amendments to the Rome Statute itself and the Rules of Procedure and Evidence. Each of  these
hold the potential to undermine the integrity of the Statute, as the following discussion will examine.

12.2.1

Political Attacks

Opposition  to  the  ICC  proceedings  against  Kenyatta  and  Ruto  has  been  vocalised  both  internally  within
domestic political fora, and regionally within the African Union.

Within Kenya, since the Prosecutor announced his intention to open an investigation into the post-election
violence,  the  ICC  has  been  the  subject  of  heated  political  debate.  More  specifically,  in  2010,  following  the

449 Decision  on  the  Progress  Report  of  the  Commission  on  the  Implementation  of  the  Assembly  Decisions  on  the
International Criminal Court (ICC), 29-30.01.2012 (Assembly/AU/Dec/397 (XVIII)) at para.7 and 8 (hereafter ‘African Union
Decision Assembly/AU/Dec/397 (XVIII)’); Article 23(2), The Constitutive Act of the African Union (adopted on 1.07.2000,
entered into force 26.05.2001).
450 Journalists for Justice, 11.11.2013.
451 Telephone  interview  #06  with representative  of  a  local  NGO  with  experience in  ICC situation  countries,  04.02.2014.
See also Mueller S., 2014.

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announcement  of  the  six individuals  initially  accused  by  the  Prosecutor,  the  Kenyan  National  Assembly
passed a motion calling for the withdrawal of Kenya from the ICC(452). However, this motion did not result in
the adoption of any legislative measures necessary to withdraw from the Statute. More recently in 2013, the
Kenyan  Parliament  called  on  the  withdrawal  of  Kenya  from  the  ICC(453).  While  opposition  members  of
parliament  walked  out  of  the  debate,  reportedly  calling  the  motion  ‘capricious’  and  ‘ill  considered’,  the
motion passed, calling for a Bill to be presented to Parliament within a month to repeal Kenya’s legislation
ratifying  the  Rome  Statute(454).  While  again  no  such  Bill  has  been  presented  to  the  Parliament,  the  motion
and its coverage contributed to an increasingly anti-ICC political climate within Kenya.

Beyond Kenya, these cases have attracted the consternation of the African Union and many of its Member
States. Since 2011, expressions of the Union’s opposition to the ICC proceedings in Kenya were added to the
now  regular decisions  condemning  the  proceedings  against  Al  Bashir(455).  In  May  2013,  after  the  already
indicted  Kenyatta  and  Ruto  were  elected  as  President  and  Vice-President  respectively,  the  African  Union
passed  a  decision  regretting  the  failure  of  the  Security  Council  to  defer  the  proceedings  with  regard  to
President Bashir of Sudan and the cases against the Kenyan indictees(456). At the same time, it endorsed calls
for  the  cases  to  be  transferred  to  Kenyan  national  authorities  for  investigation  and  prosecution,  and  also
called upon the AU Commission and Member States and stakeholders to engage in a process of discussing
the ICC’s role in Africa and how to strengthen ‘African mechanisms to deal with African challenges’(457).

As the commencement of the trials of Ruto and Kenyatta grew nearer, attitudes towards the ICC’s activities
continued  to  deteriorate.  In  October  2013,  an  Extraordinary  Summit  was  held  by  the  African  Union
addressing issues relating to the ICC and Africa. In the lead up to the Summit, suggestions were circulating
that delegates would be called upon to vote on a Resolution calling for a mass withdrawal from the ICC by
African states(458). While it is true that such a withdrawal would not have assisted those states from escaping
their duty to cooperate with the Court with regard to any proceedings that were commenced prior to their
date  of  withdrawal,  needless  to  say  the  political  impact  of  such  a  mass  withdrawal  would  have  been
devastating.

In  the  event,  the  outcome  of  the  summit  was  a  decision  condemning  the  ‘politisation  and  misuse  of
indictments against African leaders by the ICC’ and underscored the risk that these prosecutions could pose
to ‘sovereignty, stability, and peace [...] as well as reconciliation and reconstruction’ in the situation state as
well  as  other  states  in  the  region(459).  In  the  Decision,  the  African  Union  decided  that  ‘no  charges  shall  be
commenced  or  continued  before  any  International  Court  or  Tribunal  against  any  serving  AU  head  of
state’(460), that the cases against Kenyatta and Ruto are to be suspended and that President Kenyatta will not
appear  before  the  ICC,  and  to  expedite  the  process  of  extending  the  jurisdiction  of  the  African  Court  on
Human  and  Peoples’  Rights  (‘AfCHPR’)  to  cover  international  crimes(461).  In  addition  it  was  agreed  that  an
African  Union  contact  group  would  be  established  comprising  of  five  states  representative  of  each  of  the

Implementation  of  the  Decisions  on  the 

452 Motion 144, Kenya National Assembly 2010, adopted 22.12.2010.
453 Motion, Special Sitting of Kenya The National Assembly, 05.09.2013.
454 BBC News, 5.09.2013.
455 Decision  on  the 
International  Criminal  Court,  30-31.01.2011
(Assembly/AU/Dec.334  (XVI))  30-31.01.2011  at  para.6;  Decision  on  the  Implementation  of  the  Decisions  on  the
  African  Union  Decision
International  Criminal  Court,  30.06-1.07.2011 
Assembly/AU/Dec/397 (XVIII); Decision on the Implementation of the Decisions on the International Criminal Court,
15-16.07.2012 (Assembly/AU/Dec.419(XIX)).
456 Decision  on 
(Assembly/AU/Dec/482 (XXII)) (hereafter ‘African Union Decision Assembly/AU/Dec/482 (XXII)’).
457 African Union Decision Assembly/AU/Dec/482 (XXII) at Para.8.
458 BBC New, 20.09.2013.
459 Decision on Africa’s Relationship with the International Criminal Court, 12.12.2013 (Ext/Assembly/AU/Dec.1) at para.5
(hereafter ‘African Union Decision Ext/Assembly/AU/Dec.1’).
460 African Union Decision Ext/Assembly/AU/Dec.1 at Para.10(i).
461 African Union Decision Ext/Assembly/AU/Dec.1 at para.10.

International  Criminal  Court  (ICC),  26-27.05.2013

International  Jurisdiction,  Justice  and  The 

(Assembly/AU/Dec.366)  at  para.4; 

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regions to consult with members of the Security Council on matters relating to the AU’s relationship with the
ICC, with particular focus upon lobbying for deferrals in the cases against Al Bashir, Kenyatta and Ruto(462).

Despite  this,  it  is  important  to  observe  that  although  such  decisions  of  the  African  Union  are  intended  to
outwardly convey a pan-African solidarity on this matter, the situation in practice suggests a greater degree
of internal fragmentation(463). Botswana – a consistent and publicly vocal supporter of the ICC system –(464)
has voted against decisions hostile to the ICC(465). The position of South Africa must also be noted. Having
made  the  rule  of  law  a  prominent  feature  of  its  foreign  policy,  it  is  now  in  a  delicate  situation  having
assumed the Chair of the AU Commission, where it is required to demonstrate and defend African unity and
solidarity(466).  The  former  German  Ambassador  to  Kenya  has  noted  that  while  South  Africa  has  been
demonstrating  public solidarity with the AU calls for  the  Kenya proceedings to  be suspended, ‘behind  the
scenes, it is working hard to prevent collective withdrawal from the Rome Statute’(467).

Similarly, other African states have been expressing concern at the current trajectory of the attitude towards
the  ICC  among  African  states(468).  In  particular,  a  rift  between  Anglophone  and  Francophone  countries
appears  to  be  emerging,  with  the  latter  being  pro-ICC(469).  While  political  pressure  upon  these  states  has
precluded their willingness to take a robust position in public, it is acknowledged that behind closed doors,
these  states  have  been  working  to  encourage  a  more  constructive  engagement  with  the  ICC  indictments
that is  in line with  the principles, values and obligations  under the Rome Statute(470). Indeed, cracks  in  the
apparent  solidarity  between  African  States  at  the  AU  are  beginning  to  appear  in  public.  In  its  most  recent
Resolution on the matter of the ICC’s proceedings against sitting heads of state in January 2014, included in
the  decisions  set  out  in  paragraph  12  are  pointed  reminders  to  African  states  that  ‘African  States  Parties
should  comply  with  African  Union  Decisions  on  the  ICC  and  continue  to  speak  with  one  voice’(471),  and
further that there ‘is an imperative need for all Member States to ensure that they adhere to and articulate
commonly agreed upon positions with their obligations under the Constitutive Act of the African Union’(472).
While this is likely to be also referring to internal divisions emerging behind the public façade of the Union, it
is  most  probably  a  response  to  public  statements  by  the  Botswanan  President  in  the  lead  up  to  January’s
Annual  Summit.  In  interviews  with  media  organisations,  he  was  reported  as  observing  in  response  to
questions whether sitting heads of states should have to appear before the ICC, that a number of past and
present leaders have been in office for decades(473). He reportedly continued to question whether victims of
crimes for which those leaders are responsible should have to wait until those leaders vacate office before

International 

  Jurisdiction,  Justice  and  the 

International  Criminal  Court  (ICC),  26-27.05.2013

462 African Union Decision Ext/Assembly/AU/Dec.1 at para.10(iii).
463 Hellwig-Bőte, January 2014 at p.2  and similar views have been expressed in the course of informal interviews with
European and African state representatives.
464 KTN  Kenya,  29.05.2013.  Further,  see  recent  comments  by  the  Botswanan  President  reported  at  Mutimukulu,
26.01.2014.
465 Decision  on 
(Assembly/AU/Dec.482 (XXI)).
466 Hellwig-Bőte, January 2014 .at p.2-3 and similar views have been expressed in the course of informal interviews with
European and African state representatives.
467 Hellwig-Bőte, January 2014 at p.2-3.
468 Telephone  interview  #06  with representative  of  a  local  NGO  with  experience in  ICC  situation  countries,  04.02.2014.
Similar views have been expressed in the course of informal interviews with representatives of situation country states.
469 Namunane, 13.10.2013.
470 Telephone  interview  #05  with  ICC  Official,  04.02.2014;  Telephone  interview  #06  with  representative  of  a  local  NGO
with  experience  in  ICC  situation  countries,  04.02.2014.  Similar  views  have  been  expressed  in  the  course  of  informal
interviews with representatives of situation country states.
471 Decision  on  the  Progress  Report  of  the  Commission  on  the  Implementation  of  the  Decisions  on  the  International
Criminal  Court,  30-31.01.2014 
‘African  Union  Decision
‘Assembly/AU/Dec.493 (XXII)’).
472 African Union Decision ‘Assembly/AU/Dec.493 (XXII) at Article 12(ii).
473 Reported at Mutimukulu, 26.01.2014.

(Assembly/AU/Dec.493 

(XXII))  at  para.12(ii) 

(hereafter 

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Mainstreaming Support for the ICC in the EU’s Policies

obtaining  justice.  It  is  reported  that  he  concluded  ‘being  president  shouldn’t  protect  us  from  appearing
before the Court’(474).

Such  robust  public  defences  by  supporters  of  the  Court – particularly  those  within  the  African  Union
community – should be encouraged where defenders are forthcoming and able to sustain the political cost
they  may  incur.  At  the  same  time,  the  EU  and  its  Member  States  should  provide  equal  support  to  those
states that are working behind the scenes both in their bilateral relations and within the AU to defend the
ICC’s  integrity  and  to  promote  cooperation  with  the  ICC(475).  Despite  strong  statements en  bloc at  the  AU,
African states have long been divided – not only over the Kenyan situation, but also with regards to the Al
Bashir  arrest  warrant(476).  A  failure  by  EU  Member  States  and  the  Union  to  engage  with  individual  African
states and their individual positions on these issues would be to fall victim to the ‘ICC v Africa’ narrative that
certain African leaders have an interest in advancing(477).

12.2.2

Article 16: Security Council Deferral

Both Kenya and the African Union have consistently pursued efforts to secure a deferral of the proceedings
against Kenyatta and Ruto under Article 16 of the Statute.

Since  the  establishment  of  the  AU  Contact  Point  on  the  matter  of  Africa  and  the  ICC(478),  the  AU  and  a
number of its Member States have expended considerable diplomatic capital in order to lobby for an Article
16 deferral. Most notably, in November 2013, one week before the annual session of the ASP was to consider
specifically the issue of prosecuting serving heads of state, the Security Council was presented with a draft
resolution  to  be  adopted under  Chapter  VII  to  defer  the  proceedings  against  Ruto  and  Kenyatta  for  one
year(479). While it was made clear by three of the permanent five members of the Council that this Resolution
would not be allowed to pass (Resolutions requiring  the  affirmative vote of at least nine council  members
and no veto by a P5 member), the vote forced by Rwanda once again heightened the tension leading up to
the 2013 ASP meeting a week later. With seven Council members voting in favour of the deferral (Azerbaijan,
China, Morocco, Pakistan, Russia, Rwanda and Togo), the draft failed to meet the requisite number of votes
needed  to  be  adopted(480).  However,  notably,  not  a  single  state  voted  against  the  Resolution,  choosing
instead to abstain(481).

From a political perspective, the decision to abstain rather than to vote against the Resolution may be seen
as  an  attempt  to  mitigate  the  effect  of  the  draft  Resolution  upon  relations  between  Kenya  and  the  states
opposed to a deferral. The statements in explanation of the vote provide some suggested consequences of
the vote; the representative of Guatemala stated that the vote ‘had erected a “barrier  of distrust” between
the  countries  submitting  the  draft  in  full  knowledge  that  it  would  not  be  adopted  and  those  opposed  to
making  a  deferral(482).  Had  states  voted  against  the  Resolution  or  a  P5  Member  exercised  the  veto –
themselves knowing that was unnecessary given that there were already insufficient votes in favour of the
deferral,  it  may  have  unnecessarily  exacerbated  the  sense  of  division that  appears  to  have  taken  hold.  EU
Member States who abstained explained that the draft Resolution’s sponsors had failed to demonstrate that
the  ICC  proceedings  against  the  Kenyan  leaders  pose  a  threat  to  international  peace  and  security – the
requisite  threshold  for  the  exercise  of  the  Council’s  Chapter  VII  power(483),  while  France’s  representative

474 Reported at Mutimukulu, 26.01.2014.
475 Telephone interview #06 with representative of a local NGO with experience in ICC situation countries, 04.02.2014.
476 Du Plessis, 15.09.2010.
477 Telephone interview #01 with ICC Official, 03.02.2014.
478 African Union Decision Ext/Assembly/AU/Dec.1 at para.10(iii).
479 UN Security Council, Press Release 15.11.2013.
480 UN Security Council, Press Release 15.11.2013.
481 The abstaining states were Argentina, Australia, France, Guatemala, Luxembourg, Republic of Korea, United Kingdom
and France. UN Security Council, Press Release 15.11.2013.
482 UN Security Council, Press Release 15.11.2013.
483 UN Security Council, Press Release 15.11.2013, Statement in explanation of the vote by the UK Representative.

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Policy Department DG External Policies

stated  that  the  vote  was  inappropriate  given  the  ongoing  dialogue  of  the  Council  with  African  states,
including  those  on  the  Council(484).  In  contrast  Rwanda,  speaking  after  the  vote  stated  ‘let  it  be  written  in
history  that  the  Council  failed  Kenya  and  Africa  on  this  issue’,  while  statements  condemning  the  outcome
were also made by the representative of Kenya, and the representative of Ethiopia in his country’s capacity
as Chair of the African Union(485).

12.2.3

Mediation Attempts: Special Segment at the ASP Meeting

By November 2013, with the Ruto trial underway and the Kenyatta trial due to commence, the increasingly
entrenched political division meant  that by the annual meeting of the ASP at  the end of the month, there
was a sense that this meeting would be critical in determining the future of relations between African states
and  the  ICC.  To  this  effect,  with  the  support  of  African  State  Parties,  a  specific  debate  was  included  in  the
agenda  of  the  meeting  to  discuss  the  matter  of  indictments  of  sitting  heads  of  state  and  government(486).
This  served  as  a  forum  for  frank  and  open  debate  on  the  issues  and  enhanced  the  understanding  of  the
different  viewpoints  but  in  many  respects  also  entrenched  the  different  positions.  The  meeting  however
paved the way for a discussion of amendments which will be examined in the section that follows.

12.2.4

Direct Challenges to the Rome Statute: Amendments

A  leaked  draft  agenda  outlining  Kenya’s  suggestions  indicated  that  its  objectives  for  the  outcome  of  the
session would be the adoption of certain amendments to the Rome Statute(487). The amendments envisaged
were  first,  to  include  a  qualification  to  Article  27  of  the  Statute  (removing  immunity  for  officials)  so  as  to
exempt  serving  heads  of  state  from  prosecution  for  the  duration  of  their  time  in  office.  Second,  was  to
increase  the  grounds  upon  which  an  accused  may  be  excused  from  their  required  continuous  presence
during  the  trial,  and  third,  in  response  to  allegations  of  prosecutorial  impropriety  in  the  investigations
concerning  the  Kenyan  situation  and  the  briefing  of  witnesses,  an  amendment  to  Article  70  of  the  Rome
Statute that would acknowledge that organs of the Court can commit offences against the administration of
justice as well as be the subject of offences committed by others(488).

While the benefit of these proposed changes, had they been adopted, to the Kenyan cases is unclear – given
the  Statute’s  inclusion  of  a  year  delay  on  the  entry  into  force  of  any  amendments(489)  these  proposals
established the parameters of the issues at stake at the Session. Fearing that the hitherto largely rhetorical
political opposition to the Court’s proceedings may turn into actual non-cooperation by Kenya, there was a
strong sentiment among all stakeholders in the ICC and its proceedings that there was a need for the ASP to
arrive at an outcome that would alleviate the political tensions while at the same time ensure that all states
comply with their obligations under the Rome Statute.

As  a  result,  the  outcome  of  the  ASP  was  a  compromise.  While  defending  against  changes  to  the  Rome
Statute  itself – and  in  doing  so  avoiding  the  risk  of  establishing  a  precedent  for  the  dilution  of  the  Rome
Statute every time a politically sensitive issue arose – the ASP agreed upon changes to the Court’s Rules of
Procedure  and  Evidence  (‘RPE’).  Adopted  by  consensus,  Resolution  7  inserts  three  additional  clauses  that
build upon Rule 134 of the RPE. Rule 134, concerning the conduct of trial proceedings and the ability of the
Trial Chamber to rule on issues relating to the conduct of proceedings.

484 UN Security Council, Press Release 15.11.2013, Statement in explanation of the vote by the French Representative.
485 UN  Security  Council,  Press  Release  15.11.2013,  Statements  in  explanation  of  the  vote  by  the  Rwanda,  Kenya  and
Ethiopia.
486 Special  segment  as  requested  by  the  African  Union:  “Indictment  of  sitting  Heads  of  State  and  Government  and  its
consequences  on  peace  and  stability  and  reconciliation”,  Informal  Summary  by  the  Moderator,  27.11.2013  (ICC-
ASP/12/61).
487 Journalists for Justice, 11.11.2013.
488 Journalists for Justice, 11.11.2013.
489 Article 121(4), Rome Statute.

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





Rule 134bis: allows an accused who may request to attend trial proceedings through the use of video-
technology, thereby not requiring them to be physically present during proceedings;
Rule 134ter: In contrast to rule 134bis, this provision enables an accused to request to be excused from
attending during part or parts of their trial, and instead to be represented by counsel;
Rule 134quater: Where the individual accused is someone mandated to fulfil extraordinary public duties
at the highest level of public office – such as heads of government – that individual may apply to the
Chamber to be excused from trial proceedings and to be instead represented by their counsel.

All  three  clauses  are  applicable  only  to  accused  individuals  who  are  subject  to  summons  to  appear,  and
therefore are not available to those who have been detained in the Court’s custody following the execution
of an arrest warrant issued against them.

Since the adoption of these amendments, the Trial Chamber has already been called upon to decide upon
an application by Ruto under Rule 134quater. In December 2013, the defence submitted a request pursuant
to  Article  63(1)  of  the  Rome  Statute  and  Rule  134quater to  claim  exceptional  circumstances  to  justify  an
excusal  of  Ruto  from  attending  his  trial(490)  The  Prosecutor’s  response  to  this  application  highlights  an
important  point  when  considering  the  practical  implications  of  the  amendments on  the  ability  of  accused
individuals  to  recuse  themselves  from  physical  attendance  of  their  trial(491).  In  sum,  the  point  to  be
acknowledged  is  that  Rules  134bis-quater merely  grant  the  Chamber  the power to  authorise  such  recusals
and only when stringent conditions on the exceptionality of the circumstances of the particular application
are met. Even more importantly, the Rome Statute obliges the Chambers of the Court to interpret the RPE in
accordance with the Statute, directing the Chambers to give precedence to the Statute over the Rules where
a conflict between the two exists. Accordingly, in practice, the Statute effectively grants the ICC judges the
power to review the legality of the RPE, including any amendments adopted by the ASP, according to their
compliance  with  the  Rome  Statute.  Therefore,  while  it  remains  to  be  seen  in  practice,  the  harm  to  the
integrity of the Statute by these amendments may be limited.

These Rule changes identify and respond to legitimate questions of practicality raised by the unprecedented
indictments of sitting heads of state, namely how to enable them to fulfil both their obligations to the State
and  their  obligations  under  the  Rome  Statute,  whilst  also  ensuring  that  the  presumption  of  innocence  is
respected  until  final  judgment  is  reached.  If  it  may  be  recalled,  the  EU’s  commitment  to  international
criminal justice and the ICC stems, in part, from its mandate to promote stability, the rule of law, democracy
and human rights. Where – in particular in the Kenyan situation – the individuals cooperating with the Court
do have a democratic mandate to govern their country, there is a responsibility for State Parties to the Rome
Statute  to  reconcile  the  integrity  of  the  Statute  with  the  wider  objectives  that  the  international  criminal
justice system seeks to promote.

At the same time, while the practical effect of these amendments is still to be seen, there are indications to
suggest  that  this  has  emboldened  efforts  to  push  for  further  amendments  to  both  the  Rules  of  Procedure
and the Statute itself, thereby raising clear concerns for the preservation of the Statute’s integrity(492). While
the compromise attained at the 2013 ASP in terms of the amendments to the RPE did successfully defuse the
immediate  tension(493),  a  number  of  interviewees  noted – with  differing  degrees  of  concern(494) – the  AU’s

490 Prosecutor  v William Samoei Ruto and Joshua Arap Sang, Defence Request pursuant to Article 63(1) of the Rome Statute
and Rule 134 quater of the Rules of Procedure and Evidence to excuse Mr William Samoei Ruto from attendance at trial,
16.12.2013 (ICC-01/09-01/11-1124).
491 Prosecutor  v William Samoei Ruto and Joshua Arap Sang, Prosecutor Response to Defence Request pursuant to Article
63(1) of the Rome Statute and Rule 134 quater of the Rules of Procedure and Evidence to excuse Mr William Samoei Ruto
from attendance at trial, 8.01.2014 (ICC-01/09-01/11-1135).
492 Telephone  interview  #06  with representative  of  a  local  NGO  with  experience in  ICC  situation  countries,  04.02.2014;
Telephone interview #01 with ICC Official, 03.02.2014.
493 Telephone  interview  #01  with  ICC  Official,  03.02.2014;  Telephone  interview  #05  with  ICC  Official,  04.02.2014;
Telephone interview #06 with representative of a local NGO with experience in ICC situation countries, 04.02.2014.

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declared  commitment  to  pursuing  further  amendments  to  the  Statute  in  the  course  of  the  coming  year,
including at the AU-EU Summit scheduled for 2014(495). One interviewee observed that many African states
receive  substantial  economic  support  from  other  states – such  as  China  and  the  Gulf  states  that  impose
fewer, if any, human rights or international criminal justice conditions, upon their bilateral agreements(496).
Another  mentioned  that  the  RPE  amendment  provided  the  necessary  encouragement  to  African  states  to
push for further amendments, which would also include Statute provisions(497). In this context, it is vital that
at the upcoming Summit, the EU and the AU reaffirm the strength of their partnership and do not let the ICC
dominate the EU-Africa relationship(498).

12.3

Ownership

The  success  with  which  momentum  has  been  generated  against  the  ICC  with  regard  to  the  matter  of
immunity  of  heads  of  state  lies  in  the  effectiveness  with  which  the  opponents  of  the  proceedings  against
certain  leaders  have  drawn  upon  popular  and  populist  critiques  of  the  ICC  and  its  supporters,  particularly
those in the West. In brief, these concerns can be understood in terms of ownership. These concerns build
upon  two  sentiments – first  is  the  perceived  anti-Africa  bias  too  easily  encouraged  by  the  absence  of  any
non-African situations under investigation  by  the  Court(499). Second,  is a frustration at the failure  to realise
the early expectations that the ICC would empower economically and politically weaker states against their
stronger counterparts(500). These two concerns are in turn compounded by a third element – namely, the risk
that the ICC’s reliance upon such extensive (and much needed, and welcome) support from the EU and its
Member States may be interpreted as undermining the actual or perceived independence of the Court from
those backers. Irrespective of whether these criticisms and concerns are well founded, the issues that  they
raise  for  the  universality  of  the  Statute  and  the  values  and  principles  that  it  embodies  should  give  rise  to
concern.

With  regard  to  the  criticism  of  bias,  it  is  important  to  recall  that  the  ICC  operates  within  a  much  broader
system  of  international  criminal  justice.  While  it  is  true  that  the  ICC  has  only  opened  investigations  into
African  situations,  the  ICC  operates  alongside  separate  tribunals  dealing  with  the  former  Yugoslavia  (the
ICTY), Lebanon (the Special Tribunal for Lebanon), and Cambodia (the Extraordinary Chambers in the Courts
of Cambodia)(501). Therefore, understood more broadly, the system of international criminal justice, of which
the ICC is only one part, cannot be said to be ‘anti-Africa’. Irrespective of this, and even accounting also for
the  self-referrals  originating  from  African states  themselves,  the  failure  of  the  ICC  to  open  additional
investigations into situations occurring elsewhere in the world, creates a perception of anti-African bias(502).
Without  doubting  the  need  for  accountability  in  the  situations  under  investigation  by  the  Court,  the  ICC’s
exclusive  focus  on  African  situations  while  apparently  not  paying  similar  attention  to  situations  of  equal
concern to the international  community provides critics  of the Court’s  interventions into African situations
with a compelling argument to level against the Court. As reportedly stated by one Rwandan official, ‘there
is not a single case at the ICC that does not deserve to be there. But there are many cases that belong there,
that  aren’t  there’(503).  Accordingly,  critics  have  used the  rhetorically  powerful  language  of  colonialism  and
racism in order to attack the Court’s proceedings(504). However, while these emotive statements have been

494 Telephone  interview  #01  with  ICC  Official,  03.02.2014; Telephone  interview  #05  with  ICC  Official,  04.02.2014;
Telephone interview #04 with representative of a Non-EU Member State, ICC State Party (WEOG Group), 04.02.2014.
495 Article 11 and 12 of the January 2014 decision of the AU.
496 Telephone interview #06 with representative of a local NGO with experience in ICC situation countries, 04.02.2014.
497 Telephone interview #06 with representative of a local NGO with experience in ICC situation countries, 04.02.2014.
498 Telephone interview #09 with EU official, 07.02.2014.
499 Du Plessis, December 2013.
500 Mukum Mbaku, January 2014 at p.9.
501 Hellwig-Bőte, January 2014 at p.4.
502 Du Plessis, December 2013; Roth, 6 February 2014; Bosco, 29.03.2013.
503 Reported in Bosco, 29.03.2013.
504 e.g. references to ‘race hunting’ and the Court being ‘the toy of declining imperial powers’ in:  BBC News, 12.12.2013.

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used in multilateral fora such as the African Union, when speaking to state officials at the bilateral level the
same  hostility  is  not  apparent  and  there  are  few  misunderstandings  regarding  the  independence  of  the
Court and its lack of bias(505).

A  more  nuanced  take  on  this  critique  is  one  of  disenchantment.  The  potential  for  the  establishment  of
jurisdiction over the crime of aggression resonated strongly with those states that had experienced military,
political and financial domination by stronger states(506). On this basis, the Court was seen as holding both a
preventative and responsive potential – it would deter stronger countries ‘preying’ on weaker countries for
risk  of  prosecution.  A  permanent  international  criminal  court  with  potentially  universal  jurisdiction  was
foreseen as a mechanism by which stronger states could be held accountable for crimes for which they were
responsible – not  only  for  conduct  in  African  states,  but  across  the  globe.  Conflict  at  the  dawn  of  the  21st
Century  was  not  unique  to  the  African  sub-continent.  Global  powers  such  as  the  US,  accompanied  by
leading proponents of the ICC – many of them European states and most prominently the UK - entered into
controversial conflicts in Iraq and Afghanistan(507). As the years progressed, instances of grave abuses by the
members of the armed forces of those powerful states came to light. Yet, for those (not just from Africa) who
had looked to the ICC as a mechanism to hold to account the conduct of these powerful states, the Court’s
failure to engage with these situations caused undoubted disappointment.

The  reasons  for  the  ICC’s  failure  to open  investigations  into  situations  involving  powerful  states  are
numerous. As has already been discussed in Part Two, the failure of certain states to ratify the Rome Statute
is the primary obstacle to the Court’s universality, or where ICC membership is not an issue, it is likely that
the  complementarity  threshold  will  not  be  met.  By  assisting  African  states  to  strengthen  their  capacity  to
conduct effective investigations and prosecutions, positive complementarity can help build a stronger sense
of  ownership  over  international  criminal  justice  and  will  discredit  the  argument  that  international  criminal
justice is a ‘white man’s law’.

Importantly however, while there may be a sense of a lack of ownership among African states, that has not
resulted  in  disengagement,  either  with  international  criminal  justice  in  general  or  the  ICC  in  particular.
Although the systematic non-cooperation on the execution of the arrest warrant for President Al Bashir does
represent  a  clear  disregard  for  Rome  Statute  obligations  in  that  respect,  in  the  context  of  the  Kenyan
situation,  African  states  have  taken  up  their  grievances  using  legitimate  avenues  envisaged  by  the  Rome
Statute  system – whether  it  be  lobbying  (unsuccessfully  the  UN  Security  Council  for  a  deferral)  or  to  seek
amendments of the Statute and Rules of Procedure at the Assembly of States Parties. So far, while threats of
disengagement  have  circulated,  they  are  yet  to  gain  any  traction  as  states  continue  to  profess  their
allegiance to the values and principles embodied by the Rome Statute, but for the stance on head of state
immunity.

Moreover,  there  are  ongoing  consultations  within  the  African  Union  with  regard  to  plans  to  extend  the
jurisdiction of the African Court of Peoples’ and Human Rights to grant its criminal jurisdiction over crimes
including,  but  not  limited  to,  the  core  international  crimes  of  war  crimes,  crimes  against  humanity,  and
genocide. While being conceived as an ‘African solution to African problems’, agreement upon the details –
including  what  crimes  should  fall  within  its  jurisdiction,  and  how  it  will  be  funded – remains  elusive.
Nevertheless, the continued presence of the plan for the African Court on the AU’s agenda, and reference to
it  being  included  in  each  of  its  relevant  decisions  on  the  ICC,  gives  reason  to  suggest  that  despite  the

505 Telephone  interview  #01  with  ICC  Official,  03.02.2014;  Telephone  interview  #05  with  ICC  Official,  04.02.2014;
Telephone  interview  #10 with  ICC  official,  13.02.2014.  Similar  views  have  been  expressed  in  the  course  of  informal
interviews with African state representatives.
506 Mukum Mbaku, January 2014 at p.9.
507 Most  recently,  a  number  of  human  rights  advocates  and  scholars  have  submitted  a communication  to  the  OTP  to
open  an  investigation  into  alleged  abused  by  UK  forces  in  Iraq – see  Owen,  12.01.2014;  European  Center  for
Constitutional and Human Rights, 10.01.2014.

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disillusion with the ICC, there is still widespread commitment to the wider system of international criminal
justice.

12.4

Recommendations for the EU and its Member States

















The EU should focus on emphasising the strength of the partnership between the EU and
Africa;
The EU and  its Member  States should  preserve  the  integrity  of  the  Statute  and  in
particular,  adopt  a  firm  and  consistent  position  in  defence  of  the  core  principle  of  the
rejection of head of state immunity;
Member  States,  and  where  appropriate,  the EU,  need  to  demonstrate  a  genuine
willingness  to  engage  openly  with  regional  partners  within  Africa  who  share  an  equal
commitment to the values the ICC embodies;
Member States should continue to explore options within the scope of the Statute that
could  both  serve  to  enhance  the  efficiency  of  Court  proceedings  and  also  address  the
practical concerns of State Parties;
The EU and  its Member  States should  engage  with  those  African  states  that  are
strategically positioned to influence other African Union members.
The EU and certain Member States should strengthen their partnerships with particular
African states;
Continue to support key civil society organisations who can bring about change from the
ground through clearing up misunderstandings about the ICC;
Strengthen the implementation of positive complementarity initiatives that reinforce the
capacity of African states to conduct national proceedings.

13.

CONCLUSION

This study has found that  when taking together  the political, financial and  technical  forms of support  that
the EU and its Member States have provided the ICC system of international criminal justice, it is clear that
the EU and its Member States have been, and continue to be, the strongest supporter of the ICC system of
international  criminal  justice.  The  EU’s  sustained  political  and  financial  commitment  to  the  Court  was
integral  to  its  establishment  and  to  obtaining  the  level  of  participation  within  the  Rome  system  of
international criminal justice witnessed today.

Further,  this  study  has  found  that  the  adoption  of  the  2011  Decision  and  the  accompanying  Action  Plan
were  both  necessary  and  successful  measures  to  enhance  the  effectiveness  of  the  support  that  the  EU
delivers  to  the  Court.  In  particular,  strengthening  the  mandate  of  the  EU  Focal  Point  has  worked  well  to
develop  greater  consistency  and  coordination  in  the  implementation  of  the  EU’s  policies  concerning
international criminal justice.

This study was designed to assess the success with which the EU has mainstreamed its support for the ICC in
all  its  policies  to  date.  At  the  outset,  it  observed  that  because  of  its  very  nature,  given  that  it  cannot  be  a
Party to the Rome Statute, in order to effectively deliver support to the Court, it must act through its Member
States.  Therefore,  in  order  to  assess  the  success  of  EU  mainstreaming,  it  was  necessary  to  consider  the
measures taken in both the internal and the external dimensions. In light of this, one of the objectives of this
study  was  to  assess  whether  this  piecemeal  approach  nevertheless  has  given  rise  to  a  consistent  and
coherent (and therefore effective) European approach.

The findings of this study indicate that while the 2011 Decision provides a useful framework through which
to  structure  EU  activity,  it  highlights  that  consistent  implementation  across  the  internal  and  external
dimensions  needs  to  be  strengthened.  An  area  of  particular  success – both  in  the  internal  and  external
dimension, has been the promotion of the universality of the Statute. While promoting full implementation
is  an  ongoing  process,  it  can  be  seen  alongside – and  contributing  to - enhancing  and  facilitating  greater
cooperation with the Court and the implementation of complementarity. Looking to the future, the success

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with which the EU and its Member States pursue these two objectives will determine their continuing role as
the foremost supporters of the Court. While the provision of continued and consistent political support will
be necessary, focus must turn to technical and financial forms of assistance.

The  main  body  of  the  study  concluded  by  observing  a  number  of  specific  measures  that  EU  actors  may
consider  undertaking  in  order  to  ensure  the  comprehensiveness  of  the  EU’s  implementation  of  the  2011
Decision.  Given  that  presidency  of  the COJUR-ICC rotates  bi-annually  with  the  Presidency  of  the  Council,
there  is  the  potential  that  different  priorities  may  be  pursued,  affecting  continuity.  Consideration  should
therefore  be  given  to  the  possibility  of  making  technical  and  bilateral  assistance  a  standing  item  on  the
COJUR-ICC’s  agenda,  in  addition  to  the  particular  priorities  of  a  given  Presidency.  Related  to  this,  the EU
Focal Point is likely  to play  an important role in the delivery of such technical and financial assistance. To
this  effect,  consideration  should  be  given  to  strengthening  the  Focal  Point  through  the  provision  of  extra
support to enable it to fulfil its mandate effectively and efficiently. Furthermore, updating the list of experts
managed  by  the  Focal  Point  would  bring  cross-cutting  benefits  to  the  implementation  of  the  EU’s  policy
objectives.

In  order  to  strengthen  the  ability  of  EU  Member  States  to  cooperate  with  the  Court,  strengthening  of  the
Genocide Network should be considered. In particular, GENVAL and other competent institutions should
further explore the possibility of widening the list of crimes falling within the competence of the EU under
Article  83(1)  TFEU  to  include  the  core  international  crimes  as  defined  in  the  Rome  Statute.  This  would
strengthen the effectiveness of the measures to ensure internal consistency in the full implementation of the
Statute. Further, it would enable the EU to adopt additional measures to cooperate directly with the Court.
GENVAL  should  consider  the  formulation  of  an  Action  Plan  and  Task  Force  to  increase  the  efficiency  in
combating impunity within the EU.

In order to build upon the EU’s success in the promotion of the universality of the Statute, the EEAS and EU
Delegations should  ensure that  there  is  consistency  in  the  way  that  the  ICC  is  incorporated  into  the  fight
against  impunity  in  all  actions  in  relation  to  third  states,  including  but  not  limited  to,  ICC  clauses  and
demarches.  Full  use  should  also  be  made  of  the  local  knowledge  and  resources  of  EU  delegations  on  the
ground. Building upon this, the Parliament should continue to provide political support across all areas, and
to make better use of the standing committee structure and individual MEPs who can take a leading role in
adopting a more hands on promotion of universality.

Finally,  the Commission should  continue  to  keep  under  review  the  degree  to  which  the  ICC  and
international  criminal  justice  related  issues  are  mainstreamed  across  the  different  instruments  and  to
monitor the successful implementation of the 2011 Decision.

The final part of this study turned to consider contemporary challenges facing the ICC – in the form of the
current tensions between certain African states and the ICC - and focused on what role there might be for
the  EU  and  its  Member  States  in  supporting  the  ICC  to  meet  those  challenges.  It  identified  that  although
some  work  towards  defusing  the  Africa-ICC  tension  has  been  undertaken,  (e.g.  amendment  of  the  ICC’s
Rules of Procedure and Evidence) the issue giving rise to these tensions is the Court’s proceedings against
sitting  heads  of  state.  Observing  that  the  primary  European  actors  in  this  context  should  be EU  Member
States – as  State  Parties  to  the  Rome  Statute – the  study  concluded  that  the  key  priority  should  be  to
continue  to  pursue  open  and  constructive  dialogue  with  all  partners  in  the  African  region,  while  in  the
course of doing so ensuring that the integrity of the Statute is preserved.

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14.

14.1

LIST OF RECOMMENDATIONS

Universality

14.1.1

Member States







Through the Commission, provide technical assistance to the four EU Member States that
have  yet  to  adopt  ICC  implementing  legislation  (use  could  be  made  of  the  EU’s  list  of
experts in international criminal law maintained for each country);
Encourage  the  ratification  among Member  States of  the  amendments  to  the  Rome
Statute agreed at the Kampala Review Conference, namely the amended list of war crimes
and the crime of aggression;
Consider widening the list of crimes falling within the competence of the EU under Article
83(1) TFEU to include the core international crimes as defined in the Rome Statute in order
to  strengthen  the  effectiveness  of  measures  to  ensure  internal  consistency  in  the  full
implementation of the Statute.

14.1.2

EU


























The Commission should  ensure  that  ratification  (and  implementation)  of  the  Rome
Statute is included in its proposals for the conditions imposed on candidate countries for
EU accession;
The EEAS should  target  countries  from  within  the  regional  groupings  that  EU  Member
States  belong  to,  such  as  the  ‘WEOG’,  or  ‘Eastern  Europe’  groups,  in  order  to  promote
universality;
The European Parliament should  continue  to  call  upon  the  US  and  Russia  to  ratify the
Rome Statute;
The European  Parliament should  keep  the  matter  of  implementing  legislation  on  its
agenda and should continue to raise the lack of implementation in EP’s resolutions;
The EEAS and Commission should  adopt  a  consistent  approach  with  regard  to  the
inclusion of ICC ratification and implementation clauses in agreements concluded under
the European Neighbourhood Policy;
The EEAS,  the High  Representative,  the EUSRs and  delegations  of  the Parliament
should  raise  the  issue  of  ICC  ratification  and  implementation,  where  appropriate,  in
bilateral dialogues and strive for consistency;
The EEAS and Commission should conduct an assessment of the impact of the Cotonou
Agreement  ICC  clause  in  order  to  determine  its  future  inclusion  in  other  similar
agreements;
The EEAS and Parliament should conduct an assessment of the efficacy of the demarches
in encouraging third states to ratify and implement the Rome Statute;
Continue to support NGOs who engage in ratification and implementation work;
Enhance  cooperation and  coordination  between  the  different  actors  involved  in  the
promotion  of  universality – such  as  the  Presidency  of  the  ICC,  the  EU,  and  major  NGOs
such as the CICC and PGA – by ensuring that the strategies adopted by each to promote
universality are consistent and complementary to each other;
The Commission should amend the list of treaties the ratification of which is a condition
for qualification for GSP+ status and make ratification of the Rome Statute a condition for
consideration of GSP+ status;
Target  some  of  the  funding  given  to  the  ICC  to  ratification  outreach  sessions  in
geographical  regions  where  membership  is  low.  Consider  channelling  funding  to  ICC
initiatives aimed at enhancing the implementation of the Rome Statute;
Make  better  use  of  technical  support  options  available.  Consider  the  creation  of  an
independent list of experts to be publicly available through the EEAS website;

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

The European Parliament should  promote  the  work  of  its  standing  committees
externally  and  to  encourage  MEPs  with  relevant  expertise  to  participate  in  awareness
raising campaigns on ICC Statute ratification and implementation.

14.2

Integrity

14.2.1

Member States



Where  possible, EU  Member  States sitting  on  the  UN  Security  Council,  should  aim  to
adopt a united front to protect the integrity of the Rome Statute.

14.2.2

EU







All  EU  institutions should  continue  to  support  the  integrity  of  the  Statute  through
primarily political means;
The EEAS, the High Representative and the Council should continue to monitor the US-
ICC relationship for any possible escalation;
Continue  to  support  financially  organisations  engaging  in  campaigns  and  initiatives  to
promote the integrity of the Rome Statute.

14.3

Independence, Effectiveness and Efficiency

14.3.1

Member States

14.3.2



EU







Member  States should  ensure  that  highly  qualified  candidates  are  nominated  for  all
elected ICC posts.

The High Representative, the EEAS and the Council should continue to provide political
support  of  the  ICC’s  independence,  effectiveness  and efficiency  through  appropriate
statements, demarches and communications;
Through  the EIDHR,  the  EU  should  continue  to  financially  support  the  ICC’s  Trust  Fund:
Building Legal Expertise and Fostering Cooperation;
Continue to monitor the implementation of the ICC’s initiatives to increase efficiency and
effectiveness, while at the same time respecting the Court as an independent institution.

14.4

Cooperation

14.4.1

Member States














Member States should promptly execute arrest warrants, when requested by the ICC;
Member  States should  share  experience,  best  practices  and  expertise  on  witness
protection issues, help other states set up witness protection systems and encourage the
signing of witness relocation agreements with the ICC;
Support  the  work  of  the Genocide  Network to  enhance  the  capacity  of  EU  Member
States to investigate and prosecute core international crimes within the EU;
Consider  the  adoption  of  an  Action  Plan  and  Task  Force  to  increase  efficiency  in
combating impunity within the EU;
Add core international crimes (namely, genocide, crimes against humanity, war crimes) to
the list of crimes over which Europol has competence;
Make  use  of  the European  Arrest  Warrant for  ICC-related  arrests,  provided  that  the
conditions for its application are present;
More use can be made of the asset tracing, freezing and recovery capabilities within the
EU.  Consider  the  possibility  of  tracing,  freezing  and  confiscating  assets  upon  request
directly from the ICC, rather than through Member States.

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14.4.2

EU

















The European  Parliament should  continue  to  provide  high  profile  political  support  to
encourage cooperation with the ICC by states (both Member States as well as third states);
The GENVAL should  conduct  an  evaluation  of  implementation  of  the  mandate  of  the
Genocide Network;
Greater emphasis by the EEAS and Commission should be placed on adopting concrete
measures  to  respond  to  non-cooperation  with  the  ICC  to  complement  the  political
statements in response to cooperation;
The Spokesperson  of  the High  Representative should  continue  to  issue  statements
regarding non-cooperation;
The Council should  continue  to  include  clauses  in  its  statements  and  conclusions
reminding  states  and  parties  to  ongoing  situations  subject  to  ICC  investigations  of  their
obligations to cooperate with the ICC;
Continue  to  encourage  the  work  undertaken  within  the COJUR-ICC with  regard  to
regularising the EU’s response regarding non-cooperation;
The COJUR-ICC should  engage  with  the  process  established  by  the  Roadmap  recently
adopted by the ASP in November 2013 for achieving an operative tool to enhance arrests;
Increase  the  transparency  in  the  guidelines  applied  by  the EU and  its Member  States
when implementing its policy of non-essential contacts.

14.5

Complementarity

14.5.1

Member States



Include  the  ICC  crimes  in  the  list  of  crimes  over  which  the  EU  has  competence  under
Article 83(1) TFEU in order to ensure that all EU Member States are able to implement the
principle of complementarity.

14.5.2

EU















Update  the  list  of  experts  maintained  by  the EU Focal  Point and  disseminate  its
availability to EU delegations, third states, Member States and civil society organisations in
order to strengthen assistance;
Widen  dissemination  of  the  Complementarity  Toolkit,  particularly  among  State
representatives and NGO organisations;
Mainstream positive complementarity in other areas of EU external action, such as conflict
prevention, stability and mediation;
Update the Factsheets of the EEAS Mediation Support Project, in particular the document
on ‘Transitional Justice in the Context of Peace Mediation’ in order to include information
on the Complementarity Toolkit;
Encourage funding applications by organisations working in all countries that have faced
mass violence, irrespective of whether they form the basis of an ICC investigation;
Enhance the accessibility of information on the EIDHR website regarding past and present
grant recipients;
Ensure that positive complementarity is mainstreamed within the context of other areas
of  EU  activity,  particularly  rule  of  law  policies  and  those  relating  to  fair  trial  issues  and
criminal justice reforms.

14.6

Africa and the ICC



The EU should focus on emphasising the strength of the partnership between the EU and
Africa;

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













The EU and  its Member  States should  preserve  the  integrity  of  the  Statute  and  in
particular,  adopt  a  firm  and  consistent  position  in  defence  of  the  core  principle  of  the
rejection of head of state immunity;
Member  States,  and  where  appropriate,  the EU,  need  to  demonstrate  a  genuine
willingness  to  engage  openly  with  regional  partners  within  Africa  who  share  an  equal
commitment to the values the ICC embodies;
Member States should continue to explore options within the scope of the Statute that
could  both  serve  to  enhance  the  efficiency of  Court  proceedings  and  also  address  the
practical concerns of State Parties;
The EU and  its Member  States should  engage  with  those  African  states  that  are
strategically positioned to influence other African Union members.
The EU and certain Member States should strengthen their partnerships with particular
African states;
Continue to support key civil society organisations who can bring about change from the
ground through clearing up misunderstandings about the ICC;
Strengthen the implementation of positive complementarity initiatives that reinforce the
capacity of African states to conduct national proceedings.

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15.

BIBLIOGRAPHY

Primary Resources (by date adopted)

Legal Instruments

African Union

The Constitutive Act of the African Union (adopted on 1 July 2000, entered into force 26 May 2001).
Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC),
1-3 July 2009 (Assembly/AU/Dec.245 (XIII) Rev.1).
Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/Dec.270
(XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC), 31
January-2 February 2010 (Assembly/AU/Dec.296 (XV))
Decision on the Implementation of the Decisions on the International Criminal Court, 30-31 January 2011
(Assembly/AU/Dec.334 (XVI)) 30-31 January 2011.
Decision on the Implementation of the Decisions on the International Criminal Court, 30 June-1July 2011
(Assembly/AU/Dec.366).
Decision on the Progress Report of the Commission on the Implementation of the Assembly Decisions on the
International Criminal Court (ICC), 29-30 January 2012 (Assembly/AU/Dec/397 (XVIII).
Decision on the Implementation of the Decisions on the International Criminal Court’ 15-16 July 2012
(Assembly/AU/Dec.419(XIX)).
Decision on International Jurisdiction, Justice and the International Criminal Court (ICC), 26-27 May 2013
(Assembly/AU/Dec.482 (XXI)).
Decision on Africa’s Relationship with the International Criminal Court, 12 October 2013
(Ext/Assembly/AU/Dec.1).
Decision on the Progress Report of the Commission on the Implementation of the Decisions on the
International Criminal Court, 30-31 January 2014 (Assembly/AU/Dec.493 (XXII)).

European Union

Regulation (EC) No45/2001 of the European Parliament and of the Council of 18 December 2000 on the
protection of individuals with regard to the processing of personal data by the Community institutions and
bodies and on the free movement of such data OJ L8, 12.1.2001, at p.1.
Council Common Position 2001/443/CFSP of 11 June 2001 on the International Criminal Court, OJ L 155,
12.6.2001, at p.19.
European Parliament resolution of 28th February 2002 on entry into force of the Statute of the International
Criminal Court (P5_TA(2002)0082) OJ C 293, 28.11.2002, at p.E/88.
Council Decision 2002/494/JHA of 13 June 2002 setting up a European network of contact points in respect of
persons responsible for genocide, crimes against humanity and war crimes, OJ L 167, 26.6.2002, at p.1.
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender
procedures between Member States. OJ L 190, 19.7.2002, at p.1.
Council Common Position 2002/474/CFSP of 20 June 2002 amending Common Position 2001/443/CFSP, OJ L
164, 22.6.2002, at p.1.
Council Common Position 2003/444/CFSP of 16 June 2003 on the International Criminal Court OJ L 150,
18.6.2003, at p. 67.
Agreement Between the International Criminal Court and the European Union on Cooperation and Assistance,
OJ L 115, 28.4.2006, at p.50.
Regulation (EC) No 1717/2006 of the European Parliament and of the Council of 15 November 206 establishing
an Instrument for Stability, OJ L 327, 24.11.2006 at p.1.
Regulation (EC) No 1998/2007 of the European Parliament and of the Council of 20 December 2006 on
establishing a financial instrument for the promotion of democracy and human rights worldwide, OJ L 386,
29.12.2006, at p.1.
Security Arrangements for the Protection of Classified Information Exchanged Between the EU and the ICC,
Brussels, 15 April 2008 (8349/1/08).

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Consolidated Version of the Treaty on European Union [2010] OJ C 83/13.
The Stockholm Programme – an open and secure Europe serving and protecting citizens, OJ C 115, 4.5.2010, at
p.1.
European Parliament resolution of 19 May 2010 on the Review Conference on the Rome Statute of the
International Criminal Court, in Kampala, Uganda (P7_TA(2010)0185), OJ C 161, 31.5.2011, at E/78.
Council Decision 2011/168/CFSP of 21 March 2011 on the International Criminal Court and repealing Common
Position 2003/444/CFSP, OJ L 76, 22.3.2011, at p.56.
Consolidated version of the ACP-EC Partnership Agreement.
European Parliament resolution of 17 November 2011 on EU support for the ICC: facing challenges and
overcoming difficulties (P7_TA(2011)0507) OJ C 153, 31.5. 2012, at E/115.
European Parliament resolution of 11 December 2013 on the Annual Report on Human Rights and Democracy
in the World and the European Union’s Policy on the Matter, Strasbourg 11 December 2013 (P7_TA(20130575),
Strasbourg, 11 December 2013.

International Criminal Court

Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187
UNT 3.
United Nations Treaty Collection, Rome Statute of the International Criminal Court, Rome, 17 July 1998 (entered
into force 1 July 2002) see https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-
10&chapter=18&lang=en
Agreement on the Privileges and Immunities of the International Criminal Court (adopted 9 September 2002,
entered into force 22 July 2004) 2271 UNTC 3.

United Nations

Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945).
UNSC Res 827 (25 May 1993) UN Doc S/RES/827.
UNSC Res 955 (8 May 1994) UN Doc S/RES/955.
UN SC Res 1422 (12 July 2002) UN Doc S/RES/1422.
UN SC Res 1487 (12 June 2003) UN Doc S/RES/1487.
UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593.
UN SC Res 1970 (26 February 2011) UN Doc S/RES/1970.

Interviews

Face to face interview #01 with EU Assessor, 29.01.2014.
Telephone interview #01 with ICC Official, 03.02.2014.
Telephone interview #02 with EU Official, 03.02.2014.
Telephone interview #03 with global NGO representative with experience as a capacity builder, a successful
EIDHR applicant and as an ICC consultant, 03.02.2014.
Telephone interview #04 with representative of a Non-EU Member State, ICC State Party (WEOG Group),
04.02.2014.
Telephone interview #05 with ICC Official, 04.02.2014.
Telephone interview #06 with representative of a local NGO with experience in ICC situation countries,
04.02.2014.
Telephone interview #07 with representative of a non-EU Member State, ICC State Party (GRULAC Group),
06.02.2014.
Telephone interview #08 with global NGO representative with experience working with a local NGO and also an
unsuccessful EIDHR applicant, 06.02.2014.
Telephone interview #09 with EU official, 07.02.2014.
Telephone interview #10 with ICC official, 13.02.2014.
Telephone interview #11 with former representative of global NGO with experience as a successful EIDHR
applicant, 14.02.2014.
Telephone interview #12 with global NGO representative, 19.02.2014.

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Judicial Decisions

European Union

Judgment of 3 September 2008 in Joined Cases C-402/05P and C-415/05P: Kadi and Al Barakaat International
Foundation v Council and Commission [2008] ECR I-6351.

International Criminal Court

The Prosecutor v Omar Hassan Ahmad Al Bashir, Decision informing the United Nations Security Council and the
Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic
of Kenya, 27 August 2010 (ICC-02/05-01/09-107).
The Prosecutor v Omar Hassan Ahmad Al Bashir, Decision informing the United Nations Security Council and the
Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti, 12 May 2011 (ICC-
02/05-01/09-129).
The Prosecutor v Omar Hassan Ahmad Al Bashir, Decision pursuant to Article 87(7) of the Rome Statute on the
failure by the Republic of Mali to comply with the cooperation requests issued by the Court with respect to the
arrest and surrender of Omar Hassan Ahmad Al Bashir, 12 December 2011 (ICC-02/05-01/09-139).
The Prosecutor v Omar Hassan Ahmad Al Bashir, Decision regarding Omar Al-Bashir’s visit to the Federal Republic
of Nigeria, 15 July 2013 (ICC-02/05-01/09-157).
Prosecutor v Omar Hassan Ahmad Al Bashir, Decision Regarding Omar Al-Bashir’s Potential Travel to the Federal
Republic of Ethiopia and the Kingdom of Saudi Arabia, 10 October 2013 (ICC-02/05-0/09-164).
Prosecutor v William Samoei Ruto and Joshua Arap Sang, Defence Request pursuant to Article 63(1) of the Rome
Statute and Rule 134 quater of the Rules of Procedure and Evidence to excuse Mr William Samoei Ruto from
attendance at trial, 16 December 2013 (ICC-01/09-01/11-1124).
Prosecutor v Uhuru Muigai Kenyatta, Notification of the removal of a witness from the Prosecution’s witness list
and application for an adjournment of the provisional trial date, 19 December 2013 (ICC-01/09-02/11-875).
Prosecutor v William Samoei Ruto and Joshua Arap Sang, Prosecutor Response to Defence Request pursuant to
Article 63(1) of the Rome Statute and Rule 134 quater of the Rules of Procedure and Evidence to excuse Mr
William Samoei Ruto from attendance at trial, 8 January 2014 (ICC-01/09-01/11-1135).

Official Documents

European Union Documents

Presidency Conclusions, Tampere European Council, 15 and 16 October 1999 available at
http://www.europarl.europa.eu/summits/tam_en.htm#b .
Council of the European Union, Draft Council conclusions on the International Criminal Court, Brussels 30
September 2002 (12488/1/02), Annex 1: EU Guiding Principles concerning arrangements between a State Party
to the Rome Statute of the International Criminal court and the United States regarding the conditions to
surrender of persons to the Court.
European Commission, Comprehensive Monitoring Report of the European Commission on the State of
Preparedness for EU Membership of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta,
Poland, Slovenia and Slovakia. Brussels, 11 November 2003 (COM (2003)675 final).
Council of the European Union, Action plan to follow up on the Common Position on the International Criminal
Court, 2004 available at http://www.consilium.eu.int/uedocs/cmsUpload/ICC48EN.pdf .
EIDHR, The European Initiative for Democracy and Human Rights Compendium 2000-2006.
Council of the European Union, Presidency Conclusions’, Brussels, 14 December 2007 (16616/07).
EIDHR, EIHDR evaluation of its support to the International Criminal Court (ICC) and to NGOs for the
Establishment and Functioning of the ICC, 2000-2008, Final Report, 16 December 2008.
EIHDR, The European Instrument for Democracy and Human Rights (EIDHR) Compendium January 2007-April
2009.
Council of the European Union, The European Union and Central Asia: The New Partnership in Action, June
2009.
European Commission, Non-ratification of the revised Cotonou Agreement by Sudan FAQ (August 2009)
available at http://ec.europa.eu/development/icenter/repository/sudan_final_non-ratification_faq_200908.pdf.

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European Commission, European Instrument for Democracy and Human Rights (EIDHR) Strategy Paper 2011-
2013, 21 April 2010 (C(2010)2432).
Council of the European Union, Council Conclusions on Sudan: 3058th Foreign Affairs Council meeting,
Brussels, 22 November 2010 available at
http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/117932.pdf .
Council of the European Union, Council Conclusions on Sudan: 3058th Foreign Affairs Council meeting,
Brussels, 13 December 2010 available at
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/118439.pdf .
Council of the European Union, Action Plan to follow-up on the Decision on the International Criminal Court’
Brussels, 12 July 2011 (12080/11).
European Parliament, Report of the Committee on Foreign Affairs, ‘EU Support for the ICC: facing challenges
and overcoming difficulties’ (A7-0368/2011), 20 October 2011.
EEAS, Human Rights and Democracy in the World: Report on EU Action in 2011, Brussels, June 2012.
Council of the European Union, EU Strategic Framework and Action Plan for Human Rights and Democracy,
Luxembourg, 25 June 2012 (11855/12).
European Commission, Restricted Call for Proposals 2012 EuropeAid/132762/ACT/Multi, Brussels, 25 September
2012, available at https://webgate.ec.europa.eu/europeaid/online-
services/index.cfm?ADSSChck=1388997311320&do=publi.getDoc&documentId=125413&pubID=132762 .
European Commission, Joint staff working document on advancing the principle of complementarity: Toolkit
for bridging the gap between international and national justice, Brussels 31 January 2013 (SWD(2013) 26 final).
EEAS, Transitional Justice in the context of Peace Mediation. Factsheet, November 2012 available at
http://eeas.europa.eu/cfsp/conflict_prevention/docs/2013_eeas_mediation_support_factsheet_peace_infrastr
uctures_en.pdf .
Council of the European Union, ‘EU Annual Report on Human Rights and Democracy in the World in 2012
(Thematic Reports)’, Brussels, 13 May 2013 (9431/13).
European Commission, ‘Commission Staff Working Document: Turkey 2013 Progress Report’ Brussels 16
October 2013 (SWD(2013) 417 final).
Council of the European Union, ‘EU Annual Report on Human Rights and Democracy in the World in 2012
(Country Reports)’, Brussels, 21 October 2013 (15144/13).
Council of the European Union, Strengthening efforts to combat impunity within the EU and its Member States
for serious international crimes – renewed engagement in the field of Justice and Home Affairs, Brussels, 19
November 2013 (16340/13) at http://ec.europa.eu/justice/events/assises-justice-
2013/files/contributions/85_2_redress_en.pdf .
Council of the European Union, The EU’s response to non-cooperation with the International Criminal Court by
third states, Brussels, 27 November 2013 (16993/13) .
EEAS, EU/Armenia Action Plan, available at
http://ec.europa.eu/world/enp/pdf/action_plans/armenia_enp_ap_final_en.pdf .
EEAS, EU/Azerbaijan Action Plan, available at
http://ec.europa.eu/world/enp/pdf/action_plans/azerbaijan_enp_ap_final_en.pdf .
EEAS, EU/Egypt Action Plan, available at-
http://ec.europa.eu/world/enp/pdf/action_plans/egypt_enp_ap_final_en.pdf .
EEAS, EU/Georgia Action Plan, available at
http://ec.europa.eu/world/enp/pdf/action_plans/georgia_enp_ap_final_en.pdf .
EEAS, EU/Israel Action Plan, available at:
http://ec.europa.eu/world/enp/pdf/action_plans/israel_enp_ap_final_en.pdf .
EEAS, EU/Jordan Action Plan, available at
http://eeas.europa.eu/enp/pdf/pdf/action_plans/2013_jordan_action_plan_en.pdf .
EEAS, EU/Lebanon Action Plan, available at http://ec.europa.eu/world/enp/pdf/lebanon_enp_ap_final_en.pdf .
EEAS, EU/Moldova Action Plan, available at
http://ec.europa.eu/world/enp/pdf/action_plans/moldova_enp_ap_final_en.pdf .
EEAS, EU/Morocco Action Plan, available at:
http://ec.europa.eu/world/enp/pdf/action_plans/morocco_enp_ap_final_en.pdf .

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EEAS, EU/Palestine Action Plan, available at:
http://ec.europa.eu/world/enp/pdf/action_plans/2013_eu_pa_action_plan_en.pdf .
EEAS, EU/Tunisia Action Plan available at:
http://ec.europa.eu/world/enp/pdf/action_plans/tunisia_enp_ap_final_en.pdf .
EEAS, EU/Ukraine Action Plan, available at
http://eeas.europa.eu/enp/pdf/pdf/action_plans/2010_eu_ukraine_association_agenda_en.pdf .

International Criminal Court Documents

ICC-OTP, ‘Paper on some policy issues before the Office of the Prosecutor’, September 2003, available at
http://www.icc-cpi.int/NR/rdonlyres/1FA7C4C6-DE5F-42B7-8B25-
60AA962ED8B6/143594/030905_Policy_Paper.pdf .
ICC, Statement made by Luis Moreno-Ocampo, Chief Prosecutor, Ceremony for the solemn undertaking of the
Chief Prosecutor of the International Criminal Court, 16 June 2004, The Hague.
ICC-OTP, Report on Prosecutorial Strategy, The Hague, 14 September 2006, available at http://www.icc-
cpi.int/NR/rdonlyres/D673DD8C-D427-4547-BC69-
2D363E07274B/143708/ProsecutorialStrategy20060914_English.pdf .
ICC- ASP, Strengthening the International Criminal Court and the Assembly of States Parties, 1 December 2006,
(ICC-ASP/5/Res.3).
ICC-ASP, Plan of Action of the Assembly of States Parties for Achieving Universality and Full Implementation of
the Rome Statute of the International Criminal Court, Annex to ICC-ASP/5/Res.3.
ICC-ASP, Report of the Bureau on Stocktaking: Complementarity, 18 March 2010 (ICC-ASP/8/51).
ICC-ASP, Opening remarks by the President of the Assembly, Ambassador Christian Wenaweser, 30 May 2010,
available at http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/Statements/ICC-RC-statements-
ChristianWenaweser-ENG.pdf / .
ICC-ASP, Declaración realizada en nombre de la Unión Europea por la Excma. Sra. Dña. María Jesús Figa López-
Palop Subsecretaria de Asuntos Exteriores y de Cooperación del Reino de España en el debate general de la
Conferencia de Revisión del Estatuto de Roma de la Corte Penal Internacional, 30 May 2010, Kampala (Uganda).
ICC-ASP, Focal Point’s compilation of examples of projects aimed at strengthening domestic jurisdictions to
deal with Rome Statute crimes, 30 May 2010 (RC/ST/CM/INF.2).
ICC-Presidency, Accord entre la Cour pénale internationale et le Gouvernement de la République du Mali
concernant l’exécution des peines prononcées par la Cour, 13 January 2012 (ICC-PRES/11-01-12).
ICC-OTP, 13 July 2012 Malian referral letter, available at http://icc-cpi.int/NR/rdonlyres/A245A47F-BFD1-45B6-
891C-3BCB5B173F57/0/ReferralLetterMali130712.pdf .
ICC-OTP, Situation in Palestine, 3 April 2012 available at http://www.icc-cpi.int/NR/rdonlyres/9B651B80-EC43-
4945-BF5A-FAFF5F334B92/284387/SituationinPalestine030412ENG.pdf.
ICC – OTP, Report of the Bureau on non-cooperation, 1 November 2012 (ICC-ASP/11/29).
ICC-ASP, Eighth Status Report on the Court’s progress regarding efficiency measures, 4 June 2013 (ICC-
ASP/12/16).
ICC, Financial Report, Trust Fund: Building Legal Expertise and Fostering Cooperation, Period: 01 August 2012 –
31 July 2013, Project EIDHR/2012/292-809, (on file with the author).
ICC-ASP, Report of the Court on cooperation, 9 October 2013 (ICC-ASP/12/35).
ICC-ASP, Report of the Bureau on Cooperation, 21 October 2013 (ICC-ASP/12/36).
ICC-ASP, Report on the Bureau on non-cooperation, 7 November 2013 (ICC-ASP/12/34).
ICC-ASP, Summary of the Arusha Seminar on witness Protection (29-30th October 2013), 7 November 2013 (ICC-
ASP/12/36/Ad.1).
ICC-ASP, ‘Statement by Mr Andrius Krivas, Vice-Minister of Foreign Affairs of the Republic of Lithuania on behalf
of the European Union and its Member State’ The Hague, 20 November 2013.
Special segment as requested by the African Union: “Indictment of sitting Heads of State and Government and
its consequences on peace and stability and reconciliation”, Informal Summary by the Moderator, 27 November
2013 (ICC-ASP/12/61).

National Documents

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Motion, Special Sitting of Kenya The National Assembly, 05 September 2013 available at
http://www.parliament.go.ke/plone/national-assembly/business/order-paper/thursday-september-05-2013-at-
2.30-p.m/view .
Draft Statement to the International Criminal Court for recognition of the International Criminal Court’s
jurisdiction over Ukraine concerning crimes against humanity by senior officials of state, which led to very
serious consequences and mass murder of Ukrainian citizens during the peaceful protests in the period from 21
November 2013 to 22 February 2014, 4269 of 25.02.2014, translation available at
http://translate.google.nl/translate?hl=en&sl=uk&tl=en&u=http%3A%2F%2Fw1.c1.rada.gov.ua%2Fpls%2Fzwe
b2%2Fwebproc4_1%3Fpf3511%3D49944&sandbox=1 .

United Nations Documents

Agenda Item 69: Promotion and Protection of Human Rights, 24 December 2012, (UN DOC A/C.3/67/SR.27).
Identical letters dated 3 April 2013 from the Secretary General addressed to the President of the General
Assembly and the President of the Security Council (A/67/828-A/2013/210) 8 April 2013, Annex: Guidance on
contacts with persons who are subject of arrest warrants or summonses by the International Criminal Court.
Women and Peace and Security, 24 June 2013 (UN Doc S/PV.6984).
The Situation in the Middle East, including the Palestinian Question, 22 October 2013 (UN DOC S/PV.7046).
Letter dated 3 February 2014 from the Permanent Representative of Lithuania to the United Nations addressed
to the Secretary-General, 3 February 2014 (S/2014/75).

Official Statements

European Union Statements

Statement by the Presidency on behalf of the European Union on reaffirming the EU position supporting the
integrity of the Rome Statute, Brussels 27 July 2004 (11680/04 (Presse 235)).
Declaration by the Presidency on behalf of the European Union on the Nethercutt amendment, Brussels, 10
December 2004 (15864/1/04 REV 1 (Presse 353)).
Declaration by the Presidency on behalf of the European Union on Kenya, Brussels, 1 October 2009 (13967/09
(Presse 280)).
Declaration by the High Representative on behalf of the European Union following the ICC decision concerning
the arrest warrants for Muammar Abu Minya Gaddafi, Saif Al Islam Gaddafi and Abdullah al Sanousi, Brussels 27
June 2011 (12166/2/11 Rev 2 (Presse 206)).
Statement by the High Representative Catherine Ashton on the ratification of the Rome Statute of the
International Criminal Court by Vanuatu, Brussels, 7 December 2011 (A 498/11).
Statement by High Representative Catherine Ashton on the ratification of the Rome Statute of the International
Criminal Court by Guatemala, Brussels, 3 April 2012 (A 157/12).
Statement by EU High Representative Catherine Ashton on the ratification of the Rome Statute of the
International Criminal Court by Côte d’Ivoire, Brussels, 19 February 2013 (A 91/13).
Statement by the spokesperson of EU High Representative Catherine Ashton o the visit of Sudanese President
Al-Bashir to Chad, Brussels, 21 February 2013 available at
http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/135644.pdf .
Statement by the spokesperson of EU High Representative Catherine Ashton on the transfer of Bosco Ntaganda
to The Hague, Brussels, 22 March 2013 (A 162/13).
Statement by the Spokesperson of High Representative Catherine Ashton on the visit of Sudanese Minister of
National Defence, Abdel Raheem Muhammad Hussein, to Chad, Brussels, 26 April 2013 (A 227/13).
Statement by the Spokesperson of EU High Representative Catherine Ashton on the Visit of Sudanese President
Al-Bashir to Chad, Brussels, 16 May 2013 (160513/3).
Statement by the spokesperson of the EU High Representative Catherine Ashton on the visit Catherine Ashton
on the visit of Sudanese President Al Bashir, Brussels, 16 July 2013 available at
http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/138092.pdf .
Déclaration de la Haute Représentante Catherine Ashton au nom de l'Union européenne sur la visite du Ministre
soudanais de la Défense, Abdel Raheem Muhammad Hussein, en République centrafricaine, Brussels, 27 August
2013 (13137/1/13 Rev 1).

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S. Lambrinidis, ‘The Rights of Others: Why Human Rights Diplomacy Matters’, 30 January 2014, Human Rights
Law Centre Annual Lecture, Human Rights Law Centre, University of Nottingham.
Statement by the Spokesperson of EU High Representative Catherine Ashton on the visit of Sudanese President
Al Bashir to the Democratic Republic of Congo, Brussels, 27 February 2014 (140227/01).
United Nations Statements
Statement by the President of the Council (16 June 2008) UN Doc S/PRST/2008/21.

Secondary Resources (A-Z)

Books

Dexter L., Elite and Specialized Interviewing, Northwestern University Press, 1970.
Groenleer M. and Rijks D., ‘The European Union and the International Criminal Court: The Politics of
International Criminal Justice’ in Jørgensen K. E. (Ed) The European Union and International Organizations,
Routledge Press, 2009.
Schabas W., An Introduction to the International Criminal Court, Cambridge University Press, Cambridge, 2001.

Articles

Akande D., ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities’
(2009) 7 Journal of International Criminal Justice 333.
Antoniadis A. and Bekou O., ‘The European Union and the International Court: An Awkward Symbiosis in
Interesting Times’ (2007) 7 International Criminal Law Review 621.
Bekou O., ‘A Case for Review of Article 88 ICC Statute: Strengthening a Forgotten Provision’, (2009) 12(3)-(4) New
Criminal Law Review 468.
Bergsmo M., Bekou O. and Jones A., ‘Complementarity after Kampala: Capacity Building and the ICC’s Legal
Tools’, (2010) 2 Goettingen Journal of International Law 791.
Berry J., ‘Validity and Reliability Issues in Elite Interviewing’, (2002) PS Online 279.
Cameron F., ‘The EU as a Global Actor in Times of Crisis’, August 2013 Konrad Adenauer-Stiftung Online
Publication.
Cassese A., ‘On the Current Trends Towards Criminal Prosecution and Punishment of Breaches of International
Humanitarian Law’, (1998) 9 European Journal of International Law 1.
Cassese A., ‘The Legitimacy of International Criminal Tribunals and the Current Prospects of International
Criminal Justice’, (2012) 25 Leiden Journal of International Law 491.
Du Plessis M., ‘The African Union, the International Criminal Court, and al-Bashir’s visit to Kenya’, 15 September
2010, Institute for Security Studies Paper.
Du Plessis M., ‘Universalising international criminal law: The ICC, Africa and the problem of political perception’,
December 2013, Institute for Security Studies Paper.
Hellwig-Bőte M., ‘Political Bickering over the International Criminal Court: The Case of Kenya’, January 2014,
Stiftung Wissenschaft Politik.
McDowell L., ‘Elites in the City of London: Some Methodological Considerations’, (1998) 30 Environment and
Planning 2133.
Mueller S., ‘Kenya and the International Criminal Court (ICC): Politics, the Election and the Law’, (2014) Journal of
Eastern African Studies 1.
Mukum Mbaku J., ‘International Justice: The International Criminal Court and Africa’, January 2014, Foresight
Africa: Top Priorities for the Continent in 2014 The Brookings Africa Growth Initiative.
Ostrander S., ‘Surely You're Not in This Just to be Helpful: Access, Rapport and Interviews in Three Studies of
Elites’, (1993) 22Journal of Contemporary Ethnography.
Richards D., ‘Elite Interviewing: Approaches and Pitfalls’, (1996) 16 Politics 199.

News Reports

Delayed Sudan leader Omar al-Bashir arrives in China, 27 June 2011, BBC News available at
http://www.bbc.co.uk/news/world-africa-13929867 .
Kenya MPs vote to withdraw from ICC, 05 September 2013, BBC News available at
http://www.bbc.co.uk/news/world-africa-23969316 .

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African Union summit on ICC pullout over Ruto trial, 20 September 2013, BBC News available at
http://www.bbc.co.uk/news/world-africa-24173557 .
African Union urges ICC to defer Uhuru Kenyatta case, 12 October 2013, BBC News available at
http://www.bbc.co.uk/news/world-africa-24506006 .
EU foreign ministers moot referral of Syria to ICC, 8 September 2013, Deutsche Welle available at
http://www.dw.de/eu-foreign-ministers-moot-referral-of-syria-to-icc/a-17072186 .
Botswana explains why it’s backing ICC, 29 May 2013, KTN Kenya, available at
http://www.youtube.com/watch?feature=player_embedded&v=5U-nnCrMgb8 .
Mutimukulu M., Zimbabwe: Botswana Breaks Ranks with AU, SADC, 26 January 2014, All Africa News available at
http://allafrica.com/stories/201401260092.html .
Namunane B., Why African leaders failed to strike deal on ICC in Ethiopia, 13 October 2013 Daily Nation,
available at http://mobile.nation.co.ke/News/International-Criminal-Court-AFRICAN-UNION-UHURU-
KENYATTA/-/1950946/2031050/-/format/xhtml/-/qq3c5vz/-/index.html .
Owen J., Exclusive: Devastating dossier on ‘abuse’ by UK forces in Iraq goes to International Criminal Court, 12
January 2014, The Independent available at http://www.independent.co.uk/news/uk/politics/exclusive-
devastating-dossier-on-abuse-by-uk-forces-in-iraq-goes-to-international-criminal-court-9053735.html .
Weisman S., U.S. Rethinks Its Cutoff of Military Aid to Latin American Nations, 12 March 2006, The New York Times
available at http://www.nytimes.com/2006/03/12/politics/12rice.html?_r=0 .

Comment/Blogs

Who Pays for the ICC, African Business available at http://www.africanbusinessmagazine.com/special-
reports/sector-reports/icc-vs-africa/who-pays-for-the-icc .
Bosco D., Why is the International Criminal Court picking only on Africa?, 29 March 2013 Washington Post
available at http://www.washingtonpost.com/opinions/why-is-the-international-criminal-court-picking-only-
on-africa/2013/03/29/cb9bf5da-96f7-11e2-97cd-3d8c1afe4f0f_story.html.
Heller K., A Modest Suggestion for the Ukranian Parliament (Updated) 26 February 2014 Opinio Juris Blog
available at http://opiniojuris.org/2014/02/26/modest-suggestion-ukrainian-parliament/ .
Hoile D., Is the ICC Fit for Purpose?, 1 March 2012, New African Magazine, available at
http://www.newafricanmagazine.com/special-reports/sector-reports/icc-vs-africa/is-the-icc-fit-for-purpose .
Kimenyi M., Can the International Criminal Court Play Fair in Africa?, 17 October 2013, Africa in Focus Blog of the
Brookings Institute available at http://www.brookings.edu/blogs/africa-in-focus/posts/2013/10/17-africa-
international-criminal-court-kimenyi .
Roth K., Africa Attacks the International Criminal Court, 6 February 2014, New York Review of Books available at
http://www.nybooks.com/articles/archives/2014/feb/06/africa-attacks-international-criminal-
court/?pagination=false .
Schaake M., MEP, ‘Schaake: Ashton should address visit of al-Bashir to Cairo in talks with Morsi, 13 September
2012, available at http://www.marietjeschaake.eu/2012/09/schaake-ashton-should-address-visit-of-al-bashir-to-
cairo-with-morsi/.
Press Releases

European Authorities

‘European Cybercrime Centre (EC3) Supports the International Criminal Court’, Press Release, 14 February 2013,
available at https://www.europol.europa.eu/content/european-cybercrime-centre-ec3-supports-international-
criminal-court .

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International Criminal Court

President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC, Press Release, 29
January 2004 (ICC-20040129-44).
Prosecutor receives referral of the situation in the Democratic Republic of Congo, Press Release, 19 April 2004
(ICC-OTP-20040419-50).
Prosecutor receives referral concerning Central African Republic, Press Release, 7 January 2005 (ICC-OTP-
20050107-86).
A new Case Matrix service is now available online in Arabic, English, French and Spanish, 1 November 2013 (ICC-
CPI-20131101-PR60).
Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on opening a new Preliminary
Examination in Central African Republic, 7 February 2014, available at http://www.icc-
cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-statement-07-02-2014.aspx .

National Authorities

Text of a Letter from the President to the Speaker of the House of Representatives and the President Pro
Tempore of the Senate, 14 October 2011, White House Office of the Press Secretary, available at
https://docs.google.com/file/d/0B1mpsxTKZcbbMjNlOTRlM2EtOGE0MS00MDY2LTlmZjUtODFlNzFiYmU0MmUz
/edit?hl=en_US .
Federal Authorities of the Swiss Federation, Letter from Switzerland on behalf of 56 other states to the Security
Council calling for a referral of the situation in Syria to the ICC, 14 January 2013, available at
http://www.news.admin.ch/NSBSubscriber/message/attachments/29290.pdf .
Office of the Press Secretary, Presidential Memorandum – Certification Concerning U.S. Participation in the
United National Multidimensional Integrated Stabilization Mission in Mali Consistent with Section 2005 of the
American Servicemembers’ Protection Act, 31 January 2014, US White House available at
http://www.whitehouse.gov/the-press-office/2014/01/31/presidential-memorandum-certification-concerning-
us-participation-united .
US Department of State, Enhancement of State Department Rewards Programme, Office of the Spokesperson,
16 January 2013, Washington, DC available at http://www.state.gov/r/pa/prs/ps/2013/01/202902.htm .
US Department of State, Daily Press Briefing – March 18, 2013, 18 March 2013, Washington, DC available at
http://www.state.gov/r/pa/prs/dpb/2013/03/206377.htm .

NGOs

ECCHR, Communication to the International Criminal Court regarding torture of Iraqi detainees by the British
Military, Press Release 10 January 2014, European Center for Constitutional and Human Rights, available at
http://www.ecchr.de/index.php/united-kingdom.html.

United Nations

UN Office of the High Commissioner for Human Rights, Pillay renews call to refer Syria to the world criminal
court, Press Release, 13 February 2013, available at
http://www.ohchr.org/EN/NewsEvents/Pages/PillayToSecurityCouncil.aspx
UN Security Council, Security Council Rejects Draft Proposing Extension of United Nations Mission in Bosnia and
Herzegovina, Press Release, 30 June 2002 (SC/7437 ).
UN Security Council, Security Council Requests One-Year Extension of UN Peacekeeper Immunity from
International Criminal Court, Press Release, 12 June 2003 (SC/7789).
UN Security Council, ‘Bosnia Mission Mandate in Question, as Security Council Debates Legal Exposure of UN
Peacekeepers’ Press Release, 10 July 2002 (SC/7445/Rev.1).
UN Security Council, Security Council Resolution Seeking Deferral of Kenyan Leaders’ Trial Fails to Win
Adoption, with 7 Voting in Favour, 8 Abstaining, Press Release 15 November 2013 (SC/11176).
UN Security Council, Crafting peace mandates offers strategic chance to support national rule of law priorities,
Secretary General tells Security Council in open debate: use all peaceful tools when systems fail to tackle
impunity, President urges, Press Release 19 February 2014 (SC/11285).

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Reports or Statements

Joint Letter on behalf of Redress, Trial, FIDH, ASF, Euro-Mediterranean Human Rights Network, European Center
for Constitutional and Human Rights, Human Rights Watch to Delegations of GENVAL, 25 November 2013
available at
http://www.hrw.org/sites/default/files/related_material/Civil%20society%20letter%20to%20GENVAL.pdf .
ANICJ, Reflections on the African Union ICC Relationship, January 2014, available at http://www.icj-
kenya.org/dmdocuments/books/reflections%20on%20the%20african%20union%20icc%20relationship.pdf .
CICC, Compilation of Documents on UN Security Council Resolution 1422/1487, May 2004, available at
http://www.iccnow.org/documents/1422DocumentCompilation.pdf .
CICC, Comments and Recommendations to the Tenth Session of the Assembly of States Parties, Budget and
Finance Team of the Coalition for the International Criminal Court 20 November 2011, available at
http://www.iccnow.org/documents/CICC_Budget_and_Finance_Team_Paper_ASP10.pdf .
Directorate General for External Policies, Policy Department, ‘Organisation and Functioning of the European
External Action Service: Achievements, Challenges and Opportunities’ February 2013, EXPO/B/AFET/2012/07.
IBA, Witnesses before the International Criminal Court, July 2013 available at
http://www.ibanet.org/Document/Default.aspx?DocumentUid=9c4f533d-1927-421b-8c12-d41768ffc11f .
ICTJ, Supporting Complementarity at the National Level: An Integrated Approach to Rule of Law, 7-9 December
2011, available at https://www.ictj.org/sites/default/files/ICTJ-Global-Greentree-Two-Synthesis-Report-
2011.pdf.
ICTJ, Supporting Complementarity at the National Level: From Theory to Practice, 25-26 October 2012, available
at https://ictj.org/sites/default/files/ICTJ-Report-Greentree-III-Synthesis-ENG-2012.pdf .
Journalists for Justice, Kenya’s proposed agenda items for the 12th Session of the Assembly of State Parties, 11
November 2013, available at http://www.scribd.com/doc/183221222/Kenya-s-proposed-agenda-items-for-the-
12th-Session-of-the-Assembly-of-State-Parties .
PGA, Roundtable at the European Parliament on the International Criminal court and the European Union:
Report of Discussions, 1 June 2011, available at
http://www.pgaction.org/pdf/pre/Notes%20of%20EP%20Meeting%201%20June%202011%20(PGA%20final).p
df .
PGA, ‘The Kampala Amendments on the Crime of Aggression: A promise for the end of illegal use of force in
international relations’ European Parliament, Brussels, 28 November 2013, available at
http://www.pgaction.org/pdf/2013-11-28-European-Parliament-meeting-report.pdf .
Redress and FIDH, Fostering a European Approach to Accountability for Genocide, Crimes Against Humanity,
War Crimes and Torture: Extraterritorial Jurisdiction and the European Union’ Final Report, April 2007.
Roth K., Letter to the US Secretary of State Colin Powell on US Bully Tactics against the International Criminal
Court, 1 July 2003, Human Rights Watch available at http://www.hrw.org/en/news/2003/06/29/letter-colin-
powell-us-bully-tactics-against-international-criminal-court .

Websites

Justice Rapid Response Fact Sheet 2014, available at http://www.justicerapidresponse.org/wp-
content/uploads/2012/12/JRR-Fact-sheet-JRR-English_January-2014.pdf .
World Bank, Population 2012, available at http://databank.worldbank.org/data/download/POP.pdf .

16.

MISCELLANEOUS

ICRC, ‘Issues raised with regard to the Rome Statute of the International Criminal Court by National
Constitutional Courts, Supreme Courts and Councils of State’ January 2003 Advisory Service on International
Humanitarian Law.
"integrity, n.". OED Online. December 2013. Oxford University Press. 9 February 2014
http://www.oed.com/view/Entry/97366?redirectedFrom=integrity

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