States: Join ICC cooperation treaty (APIC)

The Agreement on Privileges and Immunities of the International Criminal Court (APIC), an international treaty designed to facilitate ICC and ICC member state personnel in their related work, is an essential part of the legal framework envisioned to guarantee the ICC the state cooperation it needs to operate as a fully independent and effective judicial institution.

For 15 years the ICC has served as the cornerstone of a global justice system designed to ensure that genocide, war crimes, and crimes against humanity do not go unpunished. The Rome Statute, and the permanent Court that it established to complement state-level efforts to eradicate impunity, are unquestionable milestones of international justice during the last two decades.

But the Court can only do so much without the full and effective cooperation of states, including through the universal ratification and implementation of the APIC.

Ratifications needed

Universal ratification and implementation of the APIC are key to the effective functioning of the Court and the international justice system as a whole, giving the ICC the access and cooperation it needs to work toward justice for victims of genocide, crimes against humanity, and war crimes.

The APIC, which elaborates cooperation provisions in Article 48 of the Rome Statute, leaves little room for doubt. The treaty covers not only privileges and immunities that states should extend to Court officials, materials, transactions, and communications within the scope of official ICC work, but also the privileges and immunities that defense teams, witnesses, victims, experts, and a range of other participants in ICC proceedings should enjoy. These include states’ representatives.

To date, only 77 states are party to the instrument, far fewer than the 193 UN member states or even the 124 States Parties to the Rome Statute. With the APIC open to ratification by non-ICC member states, such states have a chance to support international justice before even ratifying the ICC treaty as shown by the important precedent of Ukraine in 2007.

In a letter sent in July, the Coalition called on states leaders to ratify or accede to this critical treaty.

At the initiative of the Belgian government, states organized an APIC ratification pledging ceremony at the Assembly of States Parties (ASP) session in November 2016.  The purpose of this was for states to make official pledges to ratify the APIC by the 20th anniversary of the Rome Statute in 2018. During the ceremony, Australia, El Salvador, and Peru made official pledges to ratify the APIC before the 20th anniversary of the ICC. As part of its current campaign, the Coalition calls on governments to follow the example of Peru, which became the 76th  state to join the treaty in January 2017, and the Republic of Moldova, which followed as the 77th in May, with Australia and El Salvador also in sight following the pledges made during the 2016 session.

Privileges and immunities contravened: The Libya example

In 2012, members of the defense team traveling to meet with ICC suspect Saif-al-Islam Gaddafi were detained by a rebel militia in Zintan, Libya, which alleged that Gaddafi’s lawyer had passed him materials in a direct threat to state security. However, just as attorney-client privilege exists at the national level, the Rome Statute protects communications between ICC suspects and their counsel.

Libya is neither a party to the Rome Statute, nor to the APIC, but the UNSC referral of the situation on its territory to the ICC obliges Libyan authorities as well as all concerned states and regional and other international organizations to cooperate fully with the ICC mandate. This includes ensuring a suspect’s ability to enjoy international fair trial rights. To be fully prepared to help the ICC defend such rights, all states – ICC member or not – should ratify the APIC.

20 years on, why now more than ever?

Ratifying the APIC remains an important priority in strengthening the ICC, but perhaps now more than ever, as this year the Court has three trials and reparations proceedings concerning three situation countries ongoing in The Hague, in addition to 10 investigations and a further 10 situations under preliminary examination by the ICC Office of the Prosecutor (OTP).

The Court has repeatedly stressed the value of visiting situation countries, for example to decide if a case should even appear before the ICC or to meet with victims and affected communities. The experiences of ICC defense teams have shown that the norms enshrined in the APIC can help with maintaining international fair trial standards. And with more and more cases highlighting threats to witness integrity, securing certain privileges and immunities for witnesses can reduce susceptibility to improper influence.

However, the ICC can only seize upon this opportunity to deliver fair and impartial justice to victims if it enjoys the full cooperation of the 193 states committed to global peace and security.

Join us this year in calling on your government to honor its own commitment - by joining the 77 States Parties to the APIC, your government can do its part to make international justice possible.

How can you help? Ramp up support in your social media circles. Bring the discussion to your schools. Tell your governments why this matters to you. Join the #GlobalJustice movement.