'Include the defence perspective in the Review Conference discussions', IBA urges States Parties

The International Bar Association (IBA) today calls on States Parties attending the resumed session of the 8th Assembly of States Parties (ASP) in New York, to ensure that the defence perspective is fully included in the planning and deliberations for the International Criminal Court (ICC) Review Conference, scheduled for 31 May to 11 June in Kampala, Uganda. The resumed session of the ASP is expected to finalise the agenda and logistical arrangements for the Review Conference.

The Review Conference is mandated to consider a limited number of amendments to the Rome Statute, including agreeing a definition for the crime of aggression. The Conference is also expected to conduct a ‘stocktaking’ of the Rome Statute system, with particular emphasis on four key areas: peace and justice; the impact of the ICC on victims and affected communities; complementarity; and state cooperation.

The IBA fully supports the thematic issues selected for the stocktaking discussion at the Review Conference and welcomes the draft papers prepared by the ASP focal points responsible for facilitating preparations for the stocktaking sessions. However, the IBA considers that a complete and credible assessment of the progress of the Rome Statute system, in particular on issues such as complementarity and cooperation would be incomplete if the defence perspective is not fully included.

As IBA Executive Mark Ellis notes, ‘The strength of the Rome Statute system is its respect for the rights of both victims and defendants. It would be a crucial oversight to exclude defence-specific matters in the Review Conference discussions. For example, while encouraging States to implement legislation to prosecute Rome Statute crimes at the national level consistent with the complementarity principle, it is important to stress that such legislation must reflect the fair trial standards embodied in the Rome Statute.

The IBA therefore urges States Parties’ representatives attending the resumed session to ensure that preparatory documents contain specific reference to matters of concern to the defence. Panellists selected for the stocktaking sessions should also include persons with notable experience on defence matters. During the Review Conference itself, ministerial statements, resolutions and pledges should demonstrate States’ commitment and attention to this important matter.

Additional IBA recommendations for defence-related issues that may be specifically included in the Review Conference stocktaking discussions are compiled in a position paper entitled Including the Defence Perspective in the Review Conference.

ENDS

For further information please contact:

Lorraine Smith
IBA Programme Manager (ICC)
IBA/ICC Monitoring and Outreach Programme

Carnegieplein 2
2517 KJ The Hague
The Netherlands
Tel: +31(0)70 302 2859
E-mail: lorraine.smith@int-bar.org 
Website: www.ibanet.org

Romana St. Matthew - Daniel
International Bar Association
Press Office

10th Floor
1 Stephen Street
London W1T 1AT
United Kingdom

Direct Line: +44 (0)20 7691 6837
Main Office: +44 (0)20 7691 6868
Mobile: +44 (0)7940 731915
Fax: +44 (0)20 7691 6544
E-mail: romana.daniel@int-bar.org
Website: www.ibanet.org

Notes

Preparations for the 2010 ICC Review Conference

The resumed session of the 8th Assembly of States Parties (ASP) – the International Criminal Court’s (ICC’s) governing body – will be held between 22 and 25 March 2010 in New York. Representatives from each of the 110 States Parties to the Rome Statute will gather to finalise preparations for the first Review Conference of the Rome Statute.

The Review Conference will be held in Kampala, Uganda from 31 May to 11 June 2010. The Review Conference is mandated by Article 123 of the Rome Statute, which stipulates that seven years after the Statute enters into force, the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments to the Rome Statute. The Conference will consider a limited number of amendments to the Statute and the crime of Aggression as well as four key stocktaking issues: peace and justice; the impact of the ICC on victims and affected communities; complementarity; and state cooperation.

Specific focal points for each stocktaking topic were appointed by the Bureau of the ASP. The focal points are responsible for preparing a background paper and draft agenda for each stocktaking theme, and for making proposals about the outcomes of the four stocktaking issues.

Rights of accused

The Rome Statute codifies a number of internationally recognised defence rights. Article 66 of the Statute provides for the presumption of innocence, while other due process rights such as the right to disclosure, to be represented by counsel, to be tried without delay and equality of arms are stipulated in Article 67. The fair trial standards contained in the ICC’s legal texts represent the minimum guarantees for defendants in criminal proceedings and should also be reflected at the national level.

Cooperation and complementarity

The ICC is a court of last resort. As such under the principle of complementarity, the ICC only exercises jurisdiction where a State is not exercising jurisdiction over a particular matter or is genuinely unable or unwilling to investigate or prosecute. States therefore have the primary responsibility to investigate and prosecute massive crimes.
The ICC lacks its own independent police force. As such the Court relies on the cooperation of States in order to fulfil its mandate. The ICC therefore critically relies on States to cooperate in facilitating defence investigations and the collection of evidence as well as to conclude framework agreements to facilitate, among other issues, the interim release of defendants.

Part 9 of the Statute provides for a number of mandatory and non-obligatory forms of cooperation between the Court and States Parties including on matters related to the defence. Under Article 88 of the Rome Statute, States are obliged to implement the Rome Statute in their domestic legislation and thereby provide procedures for all forms of cooperation with the Court. Absence of such provisions impedes the smooth execution of requests from the Court as local legal and judicial authorities may lack the jurisdiction and power to fulfil the request.

Background on the IBA’s ICC Monitoring and Outreach Programme

In October 2005, the IBA started its ICC Monitoring and Outreach Programme funded by the MacArthur Foundation.

The monitoring component follows and reports on the work and proceedings of the ICC, focusing in particular on issues affecting the fair trial rights of the accused; the implementation of the 1998 Rome Statute, the Rules of Procedure and Evidence, and related ICC documents, in the context of relevant international standards.
The outreach component of the programme works in partnership with bar associations, lawyers and civil society organisations disseminating information and promoting debate on the ICC in different jurisdictions across the globe. The IBA facilitates a proactive role for bar associations and lawyers in the implementation of the Rome Statute in key countries.

The programme produces an e-Magazine for lawyers as well as periodic reports detailing the key findings and recommendations, which are made available to the Court, IBA members, civil society and the public at large. The IBA has a dedicated section on its website which contains full information on the ICC Monitoring and Outreach Programme, including programme descriptions, agendas and reports.