18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE
Day 2 (3 December 2019)
Name of the Event: State Cooperation and Respect for Human Rights – Finding Solutions in Cases of (Interim) Release (side event co-hosted by the Kingdom of the Netherlands, and the International Bar Association (IBA))
Overview by: Rachel Grand, Junior Research Associate PILPG-NL
Main Highlights:
This side event discussed cooperation gaps between the ICC and States Parties.
Panelists touched upon a more holistic review on judicial process in relation to fairness and fundamental human rights.
Summary of the Event:
This side event focused on states’ voluntary cooperation regarding interim release. Currently, the issue of interim release is a significant problem the Court faces because there is not a political willingness among states to cooperate on this matter. The Rome Statute lacks the structure to compel cooperation for interim release, and there has been little traction for states to sign voluntary cooperation agreements. There are only two existing agreements on interim release and one on final release.
William Roelants de Stappers, Ambassador of Belgium, discussed Belgium’s cooperation with the ICC in cases of the interim release. Specifically, he mentioned the recent decision for Bemba’s conditional release. He encouraged other states to sign voluntary cooperation agreements, stressing that these agreements still give the state the right to refuse on a case-by-case basis. Additionally, the Ambassador identified themes of willingness to share technical aspects of Belgium’s experience and the importance of understanding that engaging domestic law promotes complementarity.
Peter Lewis, Registrar of the ICC, discussed how the framework of the Rome Statute failed to realize the fundamental weakness in the Court’s lack of mandatory cooperation. He highlighted states’ commitments to voluntary cooperation with witness protection, but the lack of similar pledges for interim release. One major challenge he cited was that the ICC seeks cooperation for interim release based on each individual’s case on an ad hoc basis, so there is no time to deal with practical ways to increase networks and share the burden among states. Furthermore, he stressed that the Court is requesting cooperation on a voluntary basis, meaning no state is obligated to take anyone and can refuse based on issues to national security, public order, or other reasons they cannot help with a particular case. Lewis concluded raising the question, is the ICC a real court if it cannot deal with situations arising from acquittals?
Erica Lucero, from the Argentinian Embassy, discussed Argentina’s commitment to voluntary cooperation through the signing of international agreements and incorporation of such agreements into their national laws. Lucero reiterated the importance of state parties’ cooperation for the Court to be effective and efficient. She also discussed the importance of Argentina’s Ministry of Foreign Affairs relationship with the ICC on the international level and the Ministry of Justice’s implementation of cooperation agreements on the domestic level. Furthermore, she argued that if Argentina, a developing country, can take this step to cooperate, every other state has the prerogative to follow their lead and find common ground with the Court.
Melinda Taylor, form the Counsel for the Defence, spoke next. Her main points stressed the risk of not releasing prisoners over the risk of releasing them. She listed the practical impediments to release and potential solutions. One of the main contentions for interim release is that the Court requires assurance for release. The Court may discredit if a state comes to the defense agreeing to the terms, but if the state does not come first, the Court will reject the release because there are no assurances. Additionally, Taylor cited that more transparency in the criteria of a summon versus an arrest warrant would result in more individuals surrendering to the Court and in turn, being granted interim release since the Court would then not view them as a flight risk. Furthermore, she put forth what she called a radical idea that greenlighting a trial on an arrest if there is no reasonable way to implement the acquittal is contrary to fundamental human rights. Taylor concluded by discussing the hidden costs of the ICC’s interim release: financial cost of detention, mental problems of defendants, violation of fundamental human rights, and risk of litigation.
The event then concluded with a discussion between the panelists, Kate Orlovsky from the International Bar Association, and a representative from the office of the Registrar. They covered the Court and other stakeholders’ outreach efforts to promote cooperation and the framework to solve the issue of who bears the financial cost in implementing conditional release.