7 International Criminal Court
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| Review of the Common Position on the International Criminal Court
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| Legal base | Article 29 TEU; unanimity
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| Document originated | —
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| Deposited in Parliament | —
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 28 January
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally important
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| Committee's decision | Cleared
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Background
7.1 In 2001 the EU adopted a Common Position[32]
which set out the EU's support for the entry into force of the
Rome Statute and the establishment of the International Criminal
Court (ICC). In July 2002 the Rome Statute entered into force,
allowing the ICC to be established. The Council of the European
Union subsequently adopted a further Common Position[33]
in June 2003, to support the effective functioning of the ICC
and to advance universal support for it by promoting the widest
possible participation in the Statute.
7.2 The ICC held its first Review Conference in June
2010. This was the first occasion that ICC States Parties had
met to review the Rome Statute and to consider amendments to it.
The Conference adopted a resolution by which it amended the Rome
Statute so as to include a definition of the crime of aggression
and the conditions under which the Court could exercise jurisdiction
with respect to the crime. The actual exercise of jurisdiction
is subject to a decision to be taken after 1 January 2017 by the
same majority of States' Parties as is required for the adoption
of an amendment to the Statute. The Conference based the definition
of the crime of aggression on United Nations General Assembly
resolution 3314 (XXIX) of 14 December 1974, and in this context
agreed to qualify as aggression, a crime committed by a political
or military leader which, by its character, gravity and scale
constituted a manifest violation of the Charter.
7.3 The Conference also adopted a resolution by which
it amended Article 8 of the Rome Statute to bring under the jurisdiction
of the ICC the war crime of employing certain poisonous weapons
and expanding bullets, asphyxiating or poisonous gases, and all
analogous liquids, materials and devices, when committed in internal
armed conflicts.
7.4 The EU also made a pledge at the Review Conference
to review and update its instruments in support of the ICC. This
draft Council Decision fulfils that pledge and covers the amendments
agreed at the Review Conference to the original statute.
The Council Decision
RECITALS
7.5 A new recital has been added to reflect the agreement
reached at the Review Conference:
"The Review Conference of the Rome Statute of
the International Criminal Court adopted amendments to the Rome
Statute, in accordance with article 5, paragraph 2 of the Rome
Statute to define the crime of aggression and to establish conditions
under which the Court could exercise jurisdiction with respect
to that crime; adopted amendments to the Rome Statute to expand
the jurisdiction of the Court to three additional war crimes when
committed in armed conflicts not of an international character,
and decided to retain, for the time being, article 124 of the
Statute. Those amendments are subject to ratification or acceptance
and shall enter into force in accordance with Article 121, paragraph
5 of the Statute. The Court shall exercise jurisdiction over the
crime of aggression subject to a decision to be taken after the
1st of January 2017 by the same majority of States parties as
it is required for the adoption of an amendment to the Statute."[34]
ARTICLES
7.6 The relevant Articles are set out below. The
underlined passages indicate new additions to the 2003 Common
Position.
7.7 Article 1 provides:
"1.The International Criminal Court, for the
purpose of preventing and curbing the commission of the serious
crimes falling within its jurisdiction, is an essential means
of promoting respect for international humanitarian law and human
rights, thus contributing to freedom, security, justice and the
rule of law as well as contributing to the preservation of peace,
the prevention of conflicts and the strengthening of international
security, in accordance with the purposes and principles of the
Charter of the United Nations.
"2.The objective of this Decision is
to advance universal support for Rome Statute by promoting the
widest possible participation in it, to preserve the integrity
of the Rome Statute, to support the independence of the
Court and its effective and efficient functioning,
to support […].cooperation with the Court, and to support
the […].implementation of the principle of complementarity."
7.8 Article 2:
"1. In order to contribute to the objective
of the widest possible participation in the Rome Statute, the
European Union and its Member States shall make every effort to
further this process by raising the issue of the widest possible
ratification, acceptance, approval or accession to the Statute
and the implementation of the Statute in negotiations, including
negotiations of agreements, or political dialogues with third
States, groups of States or relevant regional organisations, whenever
appropriate.
"2. The Union and its Member States shall contribute
to the world-wide participation in and implementation of the Statute
also by other means, such as by adopting initiatives to promote
the dissemination of the values, principles and provisions of
the Statute and related instruments. In furtherance of the objectives
of this Decision, the Union shall cooperate as necessary
with other interested States, international institutions, non-governmental
organisations and other representatives of civil society.
"3. The Member States shall share with all interested
States their own experiences on the issues related to the implementation
of the Statute and, when appropriate, provide other forms of support
to that objective. The Union and its Member States shall
contribute, when requested, with technical and, where appropriate,
financial assistance to the legislative work needed for the participation
in and implementation of the Statute by third countries. States
considering to become party to the Statute or to cooperate with
the Court shall be encouraged to inform the Union of difficulties
encountered on that path.
"4. In implementing this Article, the Union
and its Member States shall coordinate political and technical
support for the Court with regard to various States or groups
of States […]."
7.9 Article 3:
"In order to support the independence of the
Court, the Union and its Member States shall, in particular
- 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 signature and
ratification by Member States of the Agreement on the Privileges
and Immunities of the Court as soon as possible and promote such
signature and 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 Court."
7.10 Article 4:
"1. The Union and its Member States shall follow
closely developments concerning […].cooperation with
the Court in accordance with the Rome Statute.
"2. The Union shall keep under review the
implementation of the agreement between the Union and the Court
on cooperation and assistance.
"3. The Union and its Member States shall
consider the conclusion, as appropriate, of ad hoc arrangements
and agreements to enable the effective functioning of the Court
and shall encourage third parties to do so.
"4. In this context, they shall continue, as
appropriate, to draw the attention of third States to the Council
Conclusions of 30 September 2002 on the International Criminal
Court and to the EU Guiding Principles annexed thereto, with regard
to proposals for agreements or arrangements concerning conditions
for the surrender of persons to the Court."
7.11 Article 5:
"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."
7.12 Article 6:
"The Council and the High Representative
of the Union for Foreign Affairs and Security Policy shall,
where appropriate, coordinate measures by the Union and Member
States for the implementation of Articles 2, 3, 4 and 5."
7.13 Article 7
"Member States shall cooperate to ensure the
smooth functioning of the Assembly of States Parties in all respects."
7.14 Article 8
"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."
The Government's view
7.15 In his Explanatory Memorandum of 28 January
2011 the Minister for Europe (Mr David Lidington) says the revision
is in line with UK policy towards the ICC and does not raise subsidiarity
concerns.
Conclusion
7.16 We report this Council Decision fully to
the House because of the general importance of the International
Criminal Court; its particular importance in relation to the situation
in Libya, where the Prosecutor has decided to open an investigation
following referral of jurisdiction by the UN Security Council;
and the importance of the agreements reached at the Review Conference.
In so doing, we clear the document from scrutiny.
32 2001/443/CFSP. Back
33
2003/444/CFSP. Back
34
Recital 13. Back
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