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Cooperation and the International Criminal Court
 Nottingham Studies on
Human Rights
Published under the auspices of the Human Rights Law
Centre of the University of Nottingham

Edited by

Dominic McGoldrick
David Harris

VOLUME 4

The titles published in this series are listed at brill.com/nshr

 Cooperation and the
International Criminal Court
Perspectives from Theory and Practice

Edited by

Olympia Bekou
Daley J. Birkett

LEIDEN | BOSTON
Library of Congress Cataloging-in-Publication Data

Names: Bekou, Olympia, editor. | Birkett, Daley, editor. | University of

Nottingham. Human Rights Law Centre, sponsoring body.
Title: Cooperation and the International Criminal Court : perspectives from
theory and practice / edited by Olympia Bekou, Daley J. Birkett.
Description: Leiden ; Boston : Brill Nijhoff, 2016. | Series: Nottingham
studies on human rights ; volume 4 | “Published under the auspices of the
Human Rights Law Centre of the University of Nottingham” | Includes
bibliographical references.
Identifiers: LCCN 2016010726 (print) | LCCN 2016011161 (ebook) | ISBN
9789004304468 (hardback : alk. paper) | ISBN 9789004304475 (E-book)
Subjects: LCSH: International Criminal Court--Congresses. | International
criminal courts--Congresses. | Criminal procedure (International
law)--International cooperation--Congresses. | Complementarity
(International law)--Congresses.
Classification: LCC KZ7311 .C6594 2016 (print) | LCC KZ7311 (ebook) | DDC
345/.01--dc23
LC record available at http://lccn.loc.gov/2016010726

Want or need Open Access? Brill Open offers you the choice to make your research freely accessible online
in exchange for a publication charge. Review your various options on brill.com/brill-open.

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface.

issn 2211-7342
isbn 978-90-04-30446-8 (hardback)
isbn 978-90-04-30447-5 (e-book)

Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands.

Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and
Hotei Publishing.
All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system,
or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise,
without prior written permission from the publisher.
Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided
that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite
910, Danvers, ma 01923, usa.
Fees are subject to change.

This book is printed on acid-free paper and produced in a sustainable manner.

Contents
Foreword vii
Acknowledgements ix
List of Abbreviations x
Notes on Contributors xi

Introduction 1

Legal Rules, Policy Choices and Political Realities in the Functioning of

the Cooperation Regime of the International Criminal Court 7
Annalisa Ciampi

The International Criminal Court Cooperation Regime – A Practical

Perspective from the Office of the Prosecutor 58
Pascal Turlan

Credible and Authoritative Enforcement of State Cooperation with the

International Criminal Court 80
Göran Sluiter and Stanislas Talontsi

Non-Compliance and the Law and Politics of State Cooperation: Lessons

from the Al Bashir and Kenyatta Cases 114
Lorraine Smith-van Lin

Practical Cooperation Challenges Faced by the Registry of the

International Criminal Court 152
Anne-Aurore Bertrand and Natacha Schauder

Non-cooperation and the Efficiency of the International

Criminal Court 185
Annika Jones

The Place of Consultation in the International Criminal Court’s

Approach to Complementarity and Cooperation 210
Nicola Palmer

Cooperation and the International Criminal Court: The Freezing,

Seizing and Transfer of Assets for the Purpose of Reparations 227
Carla Ferstman
vi Contents

Reflections of the Facilitator for Cooperation in the Hague Working

Group, 2012–2015 248
Anniken Ramberg Krutnes

A State’s Experience of Cooperation with the International Criminal

Court: The Case of Belgium 269
Gérard Dive and Julie de Hults

Strengthening the International Criminal Court Cooperation Regime

from the European Union’s Perspective 297
Christian Behrmann

Strengthening International Criminal Court Cooperation –

The Role of Civil Society 318
Matthew Cannock

Using ‘Managerial Compliance’ to Strengthen the International

Criminal Court Cooperation Regime 366
Emilie Hunter

Fostering Cooperation through Technology-Driven Tools 396

Olympia Bekou, William E. M. Lowe and Daley J. Birkett

Index 417
Foreword
The International Criminal Court (icc) cannot succeed in its mission to tackle
impunity for atrocities without cooperation from States. The necessity of
cooperation is apparent on even a cursory examination of the icc’s structure
and activities: the Court does not have a police force to arrest fugitives; it does
not have territory in which it can relocate victims and witnesses who require
protection; and its teams of investigators require access and assistance from
States in order to operate effectively. The essays in this timely collection explore
a number of current challenges affecting the Court’s international cooperation
regime. In this foreword I want to set out the importance of cooperation with
the icc and argue that States should think of cooperation with the Court as a
set of legal obligations and a partnership to achieve shared objectives of end-
ing impunity for genocide, war crimes and crimes against humanity.
States Parties to the Rome Statute of the icc have placed themselves under
a legal obligation to cooperate with the Court. In addition, two States which
are not Parties, Sudan and Libya, are under legal obligations to cooperate with
the Court pursuant to un Security Council Resolutions 1593 (2005) and 1970
(2011), respectively. The uk will continue to call on Sudan and Libya to meet
these obligations, in particular with respect to enforcement of outstanding
arrest warrants. We will continue to fulfil our own obligations to the Court and
encourage other States Parties to do likewise. In order for the icc to succeed, it
is important that States Parties look proactively at ways they can support the
Court.
First, the Court requires support at the political and diplomatic level. The
uk supports the Court in a number of ways: we encourage States to ratify or
accede to the Rome Statute and enact relevant implementing legislation; we
lobby States Parties (and non-States Parties) to cooperate with the Court; and
we use our position on the un Security Council to help ensure that interna-
tional criminal justice and icc-related issues are properly reflected in un
Security Council Resolutions. To give one practical example of our political
support for the icc, the uk, along with a number of other States Parties, has
adopted a policy of no non-essential contact with individuals subject to an icc
arrest warrant. There is no requirement in the Rome Statute to adopt such a
policy. But avoiding such non-essential contacts sends a powerful message that
there can be no ‘business as usual’ with fugitives from the Court and demon-
strates support for the icc.
Secondly, the icc requires practical support across a range of areas includ-
ing: relocating vulnerable victims and witnesses; accepting indictees on
interim release; and enforcing sentences. There is no legal obligation on a State
viii Foreword

to accept a particular witness or offer to enforce a particular sentence. But if

States do not volunteer to assist the icc in this way, the Court cannot function
effectively. The uk continues to encourage all States to support the icc, and
other international courts and tribunals, in this area. The uk is enforcing the
sentence of Charles Taylor, former President of Liberia, following his convic-
tion by the Special Court for Sierra Leone.
Thirdly, for the Rome Statute system to be a success, States need to strengthen
their resolve to tackle impunity for serious international crimes domestically,
and work together to end the culture of impunity for these atrocities. The icc
operates on the basis of complementarity and is a court of last resort: its exis-
tence does not remove States’ responsibilities to address such crimes them-
selves. Furthermore, as the Preamble to the Rome Statute affirms, there must
also be enhanced international cooperation to ensure effective prosecution of
these crimes. As the Prime Minister’s Special Representative on Preventing
Sexual Violence in Conflict, I have a responsibility to help ensure that justice is
delivered for victims and that the perpetrators of these crimes are held
accountable. The uk continues to play a leading role on these issues through
the Preventing Sexual Violence Initiative (psvi) – which remains a key priority
for the Government. The uk supports the icc Prosecutor’s Policy Paper on
sexual and gender-based crimes.
In conclusion, the uk sees its cooperative relationship with the icc as a
partnership in pursuit of shared objectives and encourages other States to
view their interaction with the Court in the same way. But we are also con-
scious that State cooperation with the Court is only one part of the picture.
Civil society organisations have been an animating force in shaping the Court
since its inception. They have worked hard to build support for the Court
among States and with the public. International organisations, activists, survi-
vors, and other legal and academic experts also continue to play an important
role. This collection is a good example of how different experts can make a
valuable contribution to the Court’s international cooperation regime. It brings
together a range of expert perspectives from both theory and practice, address-
ing matters of law which are vital to the future of the icc as well as its current
operations. I commend it to you.

The Rt Hon Baroness Anelay of St Johns dbe

November 2015
Acknowledgements
First, the editors are grateful to the contributors to this volume, all of whom
provided timely and thoughtful contributions to what is expected will be a
valuable addition to the literature in this field. Sincere thanks are also due to
the 26 experts from academia, government, civil society and the icc who gath-
ered in Nottingham for the Expert Workshop from which this book stems.
The fruitful discussions that took place during this event stimulated a number
of the ideas explored in this book. Without the support of the University
of Nottingham Human Rights Law Centre (hrlc) – and particularly its
Co-Directors, Professors David Harris and Dominic McGoldrick – which
funded the event, this project would not have been realised.
The editors wish to express their gratitude to Baroness Anelay and the War
Crimes Team at the Foreign and Commonwealth Office for facilitating the
inclusion of an insightful foreword. The editors also wish to thank Ms Emma
Knight, a graduate from the ll.m. programme at the University of Nottingham,
whose assistance was invaluable during the editorial phase. Finally, thanks are
due to Ms Bea Timmer and the team at Brill Nijhoff, who ensured that the
publication process was effortless for both authors and editors from the
outset.

November 2015
Nottingham
List of Abbreviations
asp Assembly of States Parties
au African Union
car Central African Republic
cicc Coalition for the International Criminal Court
drc Democratic Republic of the Congo
eu European Union
hrw Human Rights Watch
icc International Criminal Court
ictr International Criminal Tribunal for Rwanda
icty International Criminal Tribunal for the former Yugoslavia
ngo Non-governmental organisation
otp Office of the Prosecutor
RoC Regulations of the Court
rpe Rules of Procedure and Evidence
un United Nations
unsc United Nations Security Council
vwu Victims and Witnesses Unit
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