Overview by Annelou Aartsen, Research Associate PILPG NL
Phakiso Mochochoko: “The question is not what the ICC can do about cooperation. What is it that States Parties can do to enhance cooperation with the ICC? States should take measures which can streamline the process of cooperation with the court.”
This event was co-hosted by Ireland and the Institute for Security Studies (ISS). The panel consisted of Kirsten Meersschaert (Coalition for the International Criminal Court), Kevin Kelly (Ambassador of Ireland at The Hague), Allan Ngari (Institute for Security Studies), Matt Cannock (Amnesty International’s Centre for International Justice), and Phakiso Mochochoko (Head of the Jurisdiction, Complementarity and Cooperation Division of the ICC).
After some introductory statements by Kirsten Meersschaert, the ambassador of Ireland started off with highlighting that cooperation is the absolute key to the success of the Court. The non-execution of Arrest Warrants is proving to be one of the biggest non-cooperation challenges the ICC currently faces. It damages the credibility of the court and also influences States Parties’ commitment to the Rome Statute. The United Nations Security Council (UNSC) and the Assembly of States Parties (ASP) are two institutions which play a vital role in enhancing cooperation with the ICC.
In sequence, Allan Ngari, Senior Researcher for the Institute for Security Studies, discussed what role the UNSC and the ASP can play in order to enhance cooperation with the ICC. Referring to the preliminary findings of the ISS’s research on cooperation with the ICC, Mr. Ngari identified diverse recommendations which can enhance the cooperation of states with the court. Mr. Ngari’s first recommendation concerned the UNSC and their role to urge states to cooperate with the ICC. As specified within the study of the ISS, there are no good reasons as to why the UNSC cannot impose an obligation on all Member States to cooperate with the ICC. Moreover, Mr. Ngari highlighted that official statements should be made through SC Resolutions. Alan ended his contribution by stating that: “it is time that the UNSC takes a critical look at its own actions in terms of enhancing the work of the ICC.”
Matt Cannock, the third panelists of this side event, opened his contribution by stating that “full and timely cooperation goes to the heart of the ICC’s fulfilment of its mandate.” Nevertheless, there remains a general feeling of weakness around the cooperation regime in the ICC statute. The ASP is unable to sanction non-cooperating states. This, among other reasons, results in a system of cooperation that relies more heavily on ‘carrots than on sticks’. What then, as posed by Mr. Cannock, can the ASP do to ensure that states cooperate with the court? He answered this question himself by stating that the existing procedures, running from Emergency Bureau Meetings to discussion of non-cooperation cases at the ASP, should be exhausted more often. As clarified by Mr. Cannock, the current procedures in place have never been exhausted to its full extent. Therefore, there is no need to think about adapting or strengthening current procedures, but there is a need to think about what the ICC already has at its disposal and work with that. Moving on with the discussion, Mr. Cannock stressed that the President of the ASP and the UNSC should talk and cooperate with one another more often in order to ensure states commitment and cooperation with the ICC. Additionally, Mr. Cannock noted that States Parties and the court should not overlook the role of NGO’s and civil society to press for cooperation with the ICC. Mr.
Kirsten Meersschaert shortly recapped Matt Cannock’s points by stating that quite a large array of tools is available within the existing toolbox of the ICC, however there is a necessity to take them out and actually use them.
The last panelists, Phakiso Mochochoko, started with stating that the current criticism faced by the ICC, such as criticism on the lengthy investigations, should also be directed towards States Parties. States parties play an essential role in facilitating the work of the court. Mr. Mochochoko moved on by highlighting that States Parties currently do a good job in cooperating with the ICC and that they should ensure that no refusals to cooperate should arise in the (near) future – something that, according to Mr. Mochochoko, states increasingly begin to realize. Most urgent is to create streamlined processes for cooperation, which can greatly enhance the investigations of the ICC.
One of the questions asked by the audience addressed the current disfunction of the UNSC, which consists of 3 members that are antagonistic towards the ICC. Are there other relevant ways, not through the UNSC, through which the ASP can organize and coordinate their actions – for instance, through regional organizations such as the EU and the AU? Mr Mochochoko responded to this by noting that the ICC currently cooperates with the EU and the AU, however, the information they usually request lies in the hands of states and not so much in the institution itself. In addition, the AU itself it not homogenous, which makes it harder to cooperate.
Another question referred to the panel was what the ICC in more practical terms can do to enhance cooperation. In particular, what kind of incentives they can give to states. Mr. Mochochoko responded to this question by stating that there needs to be a political will amongst states to understand that it is in their personal interest to provide information to the Court. In addition, it was highlighted by the panel that there should also be a focus on ‘the carrot’: the UNSC should, for instance, make public statements on cooperation with the ICC to encourage it.