LAW 503 International and Transnational Criminal Law and

LAW 503 International and Transnational Criminal Law and Procedure Assist. Prof. R. Murat ÖNOK 11. 10. 2013 - I

Contents 1. 2. 3. 4. 5. 6. 7. Overview ICC Compared to other Int’l. Tribunals The Road to Rome and the Conference Importance of the Rome Statute and the Road Ahead Approach of the International Community Towards the ICC Entry into Force, Withdrawal, Reservations, Amendments Structure of the ICC 7. 1 The Presidency 7. 2 The Judicial Divisions 7. 3 Office of the Prosecutor 7. 4 Registry 7. 5 Other Offices 7. 6 Assembly of States Parties

1. Overview • Rome St. Art. 1 - The Court: An International Criminal Court (‘the Court’) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute. • Article 2 Relationship of the Court with the United Nations: The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf. • The ICC is a global and permanent institution (Art. 1) which holds a special relationship with the United Nations through an agreement (Art. 2). The Court is not an organ of the United Nations, it is an independent body.

• • Article 3 Seat of the Court: 1. The seat of the Court shall be established at The Hague in the Netherlands (‘the host State’). 2. The Court shall enter into a headquarters agreement with the host State, to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf. 3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute. Article 4 Legal status and powers of the Court: 1. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. 2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State. The “Headquarters Agreement between the International Criminal Court and the Host State” was adopted on 07. 06. 2007 (entry into Force: 01. 03. 2008).

• • The Court was established through the Rome Statute[1] which was adopted at an international conference held in Rome in 1998[2]. 120 votes in favour, 21 abstentions, 7 against (most likely US, China, Libya, Iraq, Israel, Qatar, Yemen) The Statute entered into force on July 1, 2002 as per art. 126[3]. The Rome Statute has been signed by 139 States, and 122 States are now parties to the Statute (as of 10. 2013). See ‘ratifications chart’ on KUAIS [1] UN Document Number A/CONF. 183/9 of 17 July 1998 and corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. [2] United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (15 June-17 July 1998) [3] Art. 126 (1) “This Statute shall enter into force on the first day of the month after the 60 th day following the date of the deposit of the 60 th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations”.

• Turkey abstained at the voting, and is not (yet) a party to the Statute. • Prime Minister R. T. Erdoğan has declared on October 6, 2004 before the General Assembly of the Council of Europe Parliamentary Assembly that Turkey would become a party to the Statute in the “near future”. • Art. 38 of the Constitution has been amended to that effect and the provisions regarding extradition of the new Penal Code (Art. 19) have been formulated in the light of the probability of becoming a party to the Statute. • Art. 38 of the Constitution and Art. 18 (2) of the new TPC: “Nationals shall not be extradited to a foreign country on account of an offence, save in regard to the obligations arising from being a party to the International Criminal Court. ” • “Uluslararası Ceza Divanına taraf olmanın gerektirdiği yükümlülükler hariç olmak üzere vatandaş, suç sebebiyle yabancı bir ülkeye verilemez. ”

2. ICC COMPARED TO OTHER INT’L. TRIBUNALS • The ICC is different from other international judicial organs established before it. • The International Court of Justice (also sitting in The Hague) has general jurisdiction and it adjudges legal disputes arising between states. The ICC determines individual criminal responsibility, and its jurisdiction is specific as it can only judge over the crimes enumerated in the Rome Statute. • The ICC is also different in purpose from the European Court of Human rights. In fact, the ECt. HR determines whether the fundamental rights and freedoms embodied in the European Convention and its additional protocols have been violated by a State party or not, and if so, it may award compensation to individuals. However, the ICC tries natural persons and may convict them to imprisonment.

• The European Court of Justice established within the European Union is entrusted with judicially and administratively reviewing the member States’ compliance with the treaties establishing the Union and the secondary legislation. In other words, it reviews the compliance of member States with Community law. Therefore, the scope and purpose of the ECJ is totally different from that of the ICC. • The similarity with these other courts is that the ICC is an international court too. However, in contrast to others, it is a criminal court which tries natural persons. • As for the difference from the previous int’l. criminal tribunals, the ICC is not an ad hoc tribunal but a permanent body. • On the other hand, the ICC is not a supra-national court. Indeed, the Rome Statute preserves the primacy of national criminal jurisdictions. Had the ICC Statute been envisaged as a supranational body replacing national courts, it would probably have failed to get many ratifications.

3. The Road to Rome • Remember: The ILC had prepared a report indicating that the jurisdiction of an ICC should not be limited to trafficking in narcotics. • The UN GA asked the ILC to continue its study. In the following years more comprehensive studies with a view to establishing a permanent court were conducted and the ILC submitted two more reports (see especially the “Revised Report of the Working Group on the Draft Statute for an International Criminal Court”, ILC, forty-fifth session, UN Doc. A/CN. 4/L. 490 (1993). • The Report of the ILC prepared on its 46 th session included a draft statute for an ICC. • The UN GA decided on 09. 12. 1994 to establish an ad hoc committee which would review the major substantive and administrative issues arising out of the draft statute prepared by the ILC and, in light of that review, consider arrangements for the convening of an international conference of plenipotentiaries. • The ad hoc committee held two meetings in 1995 and advised the UN to establish a new committee.

• Thus, the “Preparatory Committee on the Establishment of an International Criminal Court” (Prep. Com) was established by the UN GA in December of 1995. • The mandate of the Prep. Com was to prepare the proposal of a draft text that could gain wide acceptance at a diplomatic conference of plenipotentiaries. • The Prep. Com held a total of 6 meetings in New York and did a remarkable job, managing to submit to the Diplomatic Conference a Draft Statute and Draft Final Act consisting of 116 articles contained in 173 pages of text with around 1300 words in square brackets, representing multiple options either to entire provisions or to some words contained in certain provisions.

• The Rome Conference was held between June 15 - July 17, 1998 with the participation of the representatives of 160 states and around 250 NGOs. • Turkey also participated to the Conference. • The process was simply head-spinning, as there was major public interest, incredible NGO propaganda (they were very active and influential). • There was an immense work still to do: there were thousands of proposals on the table, major points of conflict and little time. • "In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you. . . to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished. " -- Kofi Annan, United Nations Secretary. General

• • • In the Rome negotiations, as it had been in the works of the Prep. Com, three major groupings of states emerged: the Like-Minded States, the P-5 States, and the non-aligned movement (NAM). The Like-Minded States included countries from all regions of the world and was largely led by Canada and Australia. This was the group of states which intended to create a strong ICC. Thus, they wanted the Court to have a broad and “automatic jurisdiction” (once a state ratifies the Statute it automatically accepts the Court’s jurisdiction), an independent prosecutor empowered to initiate proceedings, and a sweeping definition of war crimes including crimes committed in internal armed conflicts. The P-5 consisted of some permanent members of the UN Security Council. However, the UK had joined the Like-Minded States during Prep. Com sessions and so did France during the Rome Conference. This group was obviously led by the USA and envisaged an ICC under the scrutiny of the Security Council. These states were opposed to automatic jurisdiction and to granting the prosecutor the power to initiate proceedings. They wanted the Security Council to have the power to both refer cases to the court and to prevent cases from being brought before the Court. In addition, they were against the inclusion of aggression among the crimes subject to the Court’s jurisdiction, and to including any reference to the use of nuclear weapons.

• • • - • Finally, the NAM comprised many states with a variety of interests. Their common standpoint was the strong opposition to the assignment of any role to the Security Council and to the inclusion within the jurisdiction of the court of war crimes committed in internal armed conflicts. Some of these states insisted in including drug trafficking, while others pressed for the inclusion of terrorism (Turkey being amongst these). In addition, they supported the inclusion of aggression in the Statute. In Rome, the Like-Minded States managed to become the strongest group and they made sure that their supporters were assigned effective roles at the Conference. These states obtained two significant successes in Rome: First, they managed to provide for the automatic jurisdiction of the Court. Second, they blocked a manouvre intending to narrow down the Courts’s jurisdiction launched by the USA and India on the very last day of the Conference. Advancing a proposal for a motion of non-action, they made sure that the last-second American proposal was not even voted. At the vote held in the last day of the Conference 120 states voted in favour. As a result, the Rome Statute was adopted by an overwhelming majority, a result which frankly exceeded all pre-Conference expectations.

4. Importance of the Rome Statute and the Road Ahead • "For nearly half a century -- almost as long as the United Nations has been in existence -- the General Assembly has recognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought. . . that the horrors of the Second World War -- the camps, the cruelty, the exterminations, the Holocaust -- could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time -- this decade even -- has shown us that man's capacity for evil knows no limits. Genocide . . . is now a word of our time, too, a heinous reality that calls for a historic response. " - Kofi Annan • The Rome Statute is a milestone in the prosecution and punishment of the most serious international crimes. For the first time in history mankind owns a permanent judicial organ which may prosecute and punish acts which constitute genocide, crimes against humanity and war crimes. • The ICC will establish the individual criminal responsibility of the perpetrators, compensate in a measure those victimised by such acts and provide for deterrence.

• "There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance. " -- Benjamin B. Ferencz, a former Nürnberg prosecutor • The system adopted with the Statute (‘complementarity’) will push states to prevent and punish at the national level crimes within the jurisdiction of the Court, and will establish a system of international cooperation in the effective prosecution of such crimes. • The ICC is a mechanism which will determine the standards in the interpretation and application of ICL, and will be a model for national organs. • By imposing obligations on them, the Statute further reinforces the tendency to accept natural persons as subjects of international law. • Many writers argue that the creation of the ICC is the most exciting development in the field of int’l. law since the creation of the UN.

• Prep. Com President Phillippe Kirsch: “The Statute is not a perfect instrument; no internationally negotiated instrument can be. It includes uneasy technical solutions, awkward formulations and difficult compromises that fully satisfied no one. But it is a balanced instrument, furnished with enough strength to ensure the effective functioning of the court and sufficient safeguards to foster broad support amongst states. . . The establishment of an international criminal court is a historic achievement, the culmination of many decades of hope and hard work. It is our collective responsibility to keep in mind the raison d’être of the court, which is the protection of victims, and to ensure its success”. • As expressed by Kirsch, the Statute has many shortcomings. The fact that many countries have not voted in favour of the Statute is an indication of the fact that the final outcome was far from satisfying everyone. As to the extent of the shortcomings of the Statute, certain defects were inevitable.

• The purpose of the Conference was to submit a draft text that could get acceptance by as many states as possible. In order to do that: - Safeguards easing the classical fears regarding national sovereignty had to be ensured; - Compromise solutions that would allow to reach a consensus had to be adopted. • Thus, certain compromises which would decrease the effectiveness of the Court had to accepted in order to make the Statute attractive to states. • It might be said that the system reflected in the Statute constitutes a reasonable compromise between the high expectations of those States that desired a truly supranational court totally independent of the UN SC, and the thoughts of those other states that envisaged an institution at the orders of the SC. • The fact that 122 states have chosen to ratify the Statute in 15 years is proof of the fact that the product of the Rome Conference is a legally accomplished and politically acceptable instrument.

• Is the Rome Statute a reflection of the current status of Int’l. Law? • Art. 10 of the Statute should be borne in mind: “Nothing in this Part (referring to Arts. 5 -21 regarding jurisdiction, admissibility and applicable law) shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. ” • This is to show that the Statute does not purport to illustrate the current status of int’l law. In that sense, its norms may be different from previously adopted int’l rules. For example, the definition of crimes only apply for the jurisdictional purposes of the ICC, and are not binding from the viewpoint of general int’l law.

• What Needs to be Done Next? • In order to render the Rome Statute truly and effectively applicable, states parties to the Statute have to pass “national implementing legislation”. This is necessary in order to, inter alia, prevent and punish the crimes within the jurisdiction of the ICC, to bring domestic law in line with the requirements of the Rome Statute, and to have an efficient mutual cooperation with the Court. • Many States are still working on developing such legislation. • For an extensive report on the compatibility of Turkish criminal law with the requirements of the Rome Statute, see Önok, R. Murat (the “Onok report” on share – it is in Turkish however).

5. Approach of the International Community Towards the ICC • The Western European States, on an individual basis, very strongly support the ICC. • Institutionally, both the Council of Europe and the EU support the Court in a very determined manner. • EUROPEAN UNION: The European Parliament in its decision of 17. 01. 2001 (European Parliament resolution on the ratification of the Rome treaty to establish the permanent International Criminal Court) called EU member and candidate States to ratify the Rome Statute. • Also see Council Common Position of 11 June 2001 on the International Criminal Court (2001/ 443 /CFSP) and the Council Common Position of 20 June 2002. • In its decision of 07. 02. 2002 the Parliament requested its members to call for all UN member States to become parties to the Statute. • In a decision adopted in March 2002 by the Parliament (P 5_TAPROV(2002)0082) the importance of the ICC for humanity was highlighted, and EU member States were instructed to act consequently.

• Subsequent decisions regarding the ICC had similar wording and scope. In this regard, the EU Common Position on the ICC (13. 06. 2003, (2003/444/CFSP)) was an important document. • The Council of the European Union (EU) has recently (21. 03. 2011) adopted a ‘Decision on the International Criminal Court’. The decision’s objective is to advance universal support for the Rome Statute, preserve its integrity and the independence of the ICC as well as its effective and efficient functioning, and to support cooperation with the ICC as well as the implementation of the principle of complementarity. • The decision replaces the Common Position of June 2003 which has guided ICC activities by the EU and its Member States over the past decade, including through various initiatives contained in the Action Plan which implements the Common Position.

• • Council of Europe: The Parliamentary Assembly used strong words of support and encouragement in its recommendation decision no. 1408 of 26. 5. 1999[1]. In its decision of 25. 9. 2002[2] regarding the “Risks for the integrity of the Statute of the International Criminal Court” the Parliamentary Assembly of the Council of Europe stated the following: “ 1. The Assembly recalls its Recommendation 1408 (1999) on the International Criminal Court adopted on 26 May 1999. 2. The Assembly warmly welcomes the entry into force on 1 July 2002 of the Rome Statute of the International Criminal Court (ICC), which represents a decisive step towards achieving justice and ending impunity for the most serious crimes known to mankind - war crimes, crimes against humanity and genocide. 5. The Assembly considers that universal adherence to the ICC Treaty is of crucial importance in order to enable the Court to become a truly efficient international instrument to prevent impunity and to ensure equal justice for all. 6. Democratic States must be the most ardent supporters of the Court, which represents the expression of their commitment to promote the universal values of human rights, international humanitarian law and the rule of law. 8. The Assembly regrets that some States have not yet acceded to the ICC Treaty or declared that they do not intend to become party to it. The Assembly is of the opinion that such attitudes may weaken the integrity of the Statue of the Court as well as respect for international law in general. [1] Recommendation 1408 (1499) of the Parliamentary Assembly, published in the Official Gazette of the Council of Europe - May 1999 (http: //stars. coe. fr/ta/ta 99/erec 1408. htm). [2] Parliamentary Assembly of the Council of Europe, Resolution 1300 (2002).

13. Accordingly, the Assembly calls: i. as regards the Council of Europe member States: a. on Azerbaijan and Turkey to adhere to the Rome Statute of the ICC; b. on Albania, Armenia, the Czech Republic, Georgia, Lithuania, Malta, Moldova, the Russian Federation and Ukraine to ratify the Rome Statute of the ICC; . . . ii as regards the Council of Europe observer States: a. on Japan to adhere to and on the United States of America to ratify the Rome Statute of the ICC; b. on Mexico to ratify the Rome Statute of the ICC; c. on Israel, having observer status with the Parliamentary Assembly, to ratify the Rome Statute of the ICC and not to ratify the bilateral “exemption agreement” signed with the USA: iii. on all member and observer States of the Council of Europe: a. to establish a joint and solidary position with a view to ensuring the efficient functioning of the ICC; b. to refrain from any action which might compromise the integrity of the ICC Treaty and efficient work of the Court; . . . 16. The Assembly sincerely hopes that the United States of America will join the majority of democratic States in their support for the ICC. ”

• 1. 2. 3. 5. Resolution 1644 (2009) adopted on 27. 1. 2009 by the Parliamentary Assembly on “Co -operation with the International Criminal Court (ICC) and its universality”: Recalling its Resolutions 1300 (2002) and 1336 (2003), the Parliamentary Assembly reiterates its firm commitment to the International Criminal Court (ICC). . . Recalling Recommendation 1408 (1999) on the International Criminal Court, the Assembly reiterates its belief that the universal ratification of the Rome Statute and its effective implementation into domestic systems, as well as close co-operation by states parties and other states in providing practical and judicial assistance to the ICC, are of key importance for the fight against impunity. The Assembly welcomes the fact that, since its adoption in 1998, the Rome Statute of the ICC has been ratified by 108 states across the world. Regrettably, eight Council of Europe member states (Armenia, Azerbaijan, the Czech Republic, Moldova, Monaco, Russia, Turkey and Ukraine), one Council of Europe observer state (the United States) and one state with observer status with the Parliamentary Assembly (Israel) have not yet ratified it. The Assembly therefore urges those Council of Europe member and observer states and Parliamentary Assembly observer states which have not yet done so to: 5. 1. sign and ratify without further delay the Rome Statute and the Agreement on the Privileges and Immunities of the ICC; 5. 2. adopt effective national legislation to implement the Rome Statute at the earliest opportunity and encourage third states to do so; 5. 3. protect the integrity of the Rome Statute as recommended in Resolutions 1300 (2002) and 1336 (2003).

6. In addition, the Assembly recommends that Council of Europe member and observer states and the Parliamentary Assembly observer states: 6. 1. fully co-operate with the ICC in the fight against impunity for the most serious crimes of international concern; 6. 2. empower their judicial and law-enforcement authorities in order to exercise the states’ primary jurisdiction over crimes within the purview of the ICC; 6. 3. make meaningful financial contributions to the ICC’s Trust Fund for Victims; 6. 4. incorporate in their legal orders relevant standards on victims’ rights, without prejudice to existing higher standards in some Council of Europe member and observer states and Parliamentary Assembly observer states. 7. Furthermore, the Assembly urges the Secretary General of the Council of Europe to take up a mediation role with two permanent members of the Security Council of the United Nations, the United States and Russia, in order to foster co-operation with the ICC and to take away obstacles in domestic laws for such co-operation, for example the 2002 “American Servicemen Protection Act” and international agreements such as bilateral immunity agreements, to ultimately be able to ratify the Rome Statute. 8. The Assembly welcomes the referral of situations, such as the situation in Darfur, by the United Nations Security Council to the ICC. It calls upon the United Nations Security Council to fulfil its responsibilities to implement the decisions and orders of the court and to make financial contributions as provided for by the Rome Statute.

• Organization of African Unity - Declarations and Decisions Adopted by the Thirtysixth Ordinary Session of the Assembly of Heads of State and Government (10. 07. 2000): “. . . Condemn genocide, crimes against humanity and war crimes in the Continent and undertake to cooperate with relevant institutions set up to prosecute the perpetrators. Similarly, we agree to take measures to prevent the occurrence of genocide on our Continent, and encourage ratification of the protocol on the establishment of African Court on Human and Peoples’ Rights and the statute of the International Criminal Court. ” • Note, though, that both the African Union (its current name) and individual member states are now critical of the Court.

• Organization of American States: PROMOTION OF THE INTERNATIONAL CRIMINAL COURT (Adopted at the fourth plenary session, held on June 4, 2009) with reservation by Nicaragua and the USA: The United States has long been concerned about the persistent violations of international humanitarian law and international human rights law throughout the world. The United States will continue to be a forceful advocate for the principle of accountability for war crimes, genocide, and crimes against humanity. That said, the new administration is in the process of reviewing its policies regarding the International Criminal Court, and accordingly the United States is not in a position to join consensus on the resolution. • Note the sharp difference in wording of the US reservation when compared to the one advanced in 2004. , • Finally, in the annual Resolution for the year 2012, for the first time, the US did not express any reservations.

• As to those States against the ICC, the strongest opposition was advanced by the USA which voted against the Statute at the Rome Conference. • Therefore, the USA, which had been a pioneer in the development of ICL and had spent a major effort for the establishment of such a court, decided to part its way on the issue of the ICC with all of her close allies, the Western states and almost every democratic state. • In my opinion, there are two basic reasons for US opposition: - First, the impression that the concerns and reservations advanced by the USA were not adequately addressed at the Conference. A major objection was the fact that the national of a state which is not a party to the Statute may still be tried by the ICC under certain circumstances. The US administration fears that the thousands of American troops abroad may be subject to arbitrary prosecutions. This prospect would make US contribution to foreign military operations more difficult. - A second reason for US distrust is the fact that the US intended the creation of a court under the close control of the UN Security Council, but all their attempts in that direction failed.

• • Although the US signed the ICC Statute in December 2000, the Bush Administration opposed it because: The US claimed that the ICC potentially could investigate and try US citizens without US consent even though the US is not a party to the ICC Statute; The US said that the Court has too much unchecked power and fears that its prosecutor will be uncontrollable; The US said that the ICC could investigate and prosecute US leaders for the "crime of aggression"; The US argued that the Court's very existence threatens US sovereignty; The US feared that the Court would be politically motivated against US leaders and soldiers; The US said that it would prefer to support trials in the country where the atrocity took place; The US had constitutional concerns about the ICC Statute, particularly with the due process rights accorded defendants For responses to these unfounded concerns see http: //www. amicc. org/usinfo/administration. html

• Following the adoption of the Rome Statute, the US first signed the Treaty, but on 6 May 2002, the Secretary-General received from the government of the United States America the following communication: • ". . . [I]n connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, [. . . ] the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty”. • Remember Art. 18 of the VC (1969) on the Law of Treaties: ‘A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty (. . . )’.

American Manoeuvres to Undermine the ICC • One method used by the US was to abuse Art. 16 of the Rome Statute concerning ‘Deferral of investigation or prosecution’: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions”.

Exploitation of Art. 16 of the Rome Statute • The US administration exploited this provision by blackmailing the SC. The Bush administration threatened to veto the extension of the UN peacekeeping mission’s mandate in Bosnia and stated that it would no longer participate to any UN operation unless the SC adopted a resolution that would exempt American soldiers in the mission from the jurisdiction of the ICC. • At first, during the negotiations at the SC other states vehemently criticised the stance of the US administration. • However, the Bush administration did not pull back and, eventually, seeing that there was no other way out, the members of the SC succumbed under American pressure, and the very controversial resolution 1422 (2002) was unanimously adopted on 12. 7. 2002.

• • • UN Security Council Res. 1422 (2002) : “The Security Council, . . . Acting under Chapter VII of the Charter of the United Nations, 1. Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise; 2. Expresses the intention to renew the request in paragraph 1 under the same conditions each 1 July for further 12 -month periods for as long as may be necessary; 3. Decides that Member States shall take no action inconsistent with paragraph 1 and with their international obligations; 4. Decides to remain seized of the matter. ” The resolution was renewed on 12. 6. 2003 through Security Council Resolution 1487 (2003). This time, three members abstained (France, Germany and Syria). Both resolutions were criticised with unprecedented strength by the int’l. community and scholars. Many states openly declared the resolution to be unlawful and not binding on the ICC. The EU and Council of Europe in particular harshly opposed to the resolutions.

• A) • - - Were Res. 1422 (2002) and 1487 (2003) lawful? Was the invocation of Chapter VII of the UN Charter lawful? NO: As we know, this chapter only enters into play in the existence of a specific situation: a threat to peace. There was no concrete situation or not even a potential prosecution at prospect when the Resolution was adopted. So what was the specific case which constituted a threat to peace? Did the SC think that the entry into force of the Rome Statute constituted a threat for int’l. peace and security? ! It may be that the American menaces regarding the vetoing of the extension of the peacekeeping missions’ mandate or the menace not to participate to future missions may amount to a threat to peace. But it is difficult to perceive these as a threat in the legal sense. In any case, it is difficult to link the exemption of peacekeepers from the jurisdiction of the ICC to the preservation of peace.

• YES: - However, according to another view, the threat to paralyze the SC through the use of veto powers could indeed be qualified as a threat to peace. Because such action would eventually endanger world peace as the main organ entrusted with protecting peace would be unable to operate. • Counter-arguments: - However, such an interpretation would equate noncontribution of troops to UN operations to a threat to peace. Indeed such assumption would render Art. 39 of the UN Charter borderless. - In any case, even if this interpretation was to be accepted as correct, it would have to be accepted that the USA is misusing its veto power, and, in addition, that the SC is just submitting to the state causing the threat in question rather than rightfully responding to it by imposing sanctions on that state.

B) Was the UN SC Resolution in conformity with Art. 16 of the Rome Statute? - The Resolution states that the UN SC “Requests, consistent with the provisions of Article 16 of the Rome Statute”. . . So, is Res. 1422 in compliance with Art. 16 of the Rome Statute? - The answer has to be in the negative because the SC resolution does not relate to any specific situation, it is just an abstract request, something which is not allowed by Art. 16. Indeed, only a specific and existing investigation or prosecution may be suspended by relying on this article. This is a power to be exercised on a case by case basis, and not in a generally preventive way in abstracto (ex ante and only linked to a hypothetical case). - The drafting history, negotiating process and systematic of the Article within the Statute undoubtedly prove that a generic and preventive deferral request is not what Art. 16 envisages. - Furthermore, the suspension may only be temporary, whereas the SC Resolution in question “Expresses the intention to renew the request in paragraph 1 under the same conditions each 1 July for further 12 -month periods for as long as may be necessary”, therefore, for the indefinite future. - Furthemore this clause seems to infringe the voting rights of future SC members as well as inviting states parties to the Rome Statute to regularly reapprove a resolution that runs counter to the Statute.

- UN SC Resolutions 1422 (2002) and 1487 (2003) obliges States parties to the Rome Statute to ignore their obligations arising from the Rome Statute. This is especially so for the members of the UN SC that have voted in favour of the Resolution. Remember Art. 28 of the VC on the Law of Treaties: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”. Failure to carry out the obligations imposed by the treaty will result in the int’l. responsibility of the concerned state. - Finally, these resolutions create an artificial distinction between the military personnel of the States that are party to the Rome Statute, and the military personnel that are nationals of states not parties to the Statute. Thus, the integrity of the judicial regime of the ICC is violated.

• In 2004, the USA again tried to bring such a resolution before the Security Council, but upon the outrage caused by the revelations regarding the ill-treatment of detainees in Iraq and the subsequent public pressure, many states declared that this time they would not support the proposal. • Thus, the USA withdrew its proposal and the issue has not been brought forward since then.

Bilateral Immunity Agreements • Another US manouvre in order to prejudice the ICC is the signing of bilateral immunity agreements (BIAs) based on Art. 98 (2) of the Rome Statute which reads “The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender”. • This is a provision that was incorporated to the Statute upon US initiative, its reach was not fully understood until after the Rome Conference. An example will clearly illustrate the meaning of this provision. • This is how the process of contributing with troops to UN peacekeeping operations works in practice: States intending to contribute will sign a participation agreement with the UN. After, they sign a “kuvvetlerin statüsüne dair anlaşma” (Status of Forces Agreement – SOFA) with the host state, which is the state on the territory of which the operation will be conducted.

• Suppose that the USA have sent military troops to foreign country (X) for an operation and some members have committed war crimes, and State (X) is a party to the Rome Statute. In this case, normally, American soldiers could be prosecuted since the State in which the crime is committed is a party to the Rome Statute. This is where Art. 98 (2) comes into play. • The US administration intends to force states hosting American troops into bilateral immunity agreements based on this provision. • According to the Status of Forces Agreements, the hosting state would need to seek USA’s consent first in order to surrender an American national to the ICC. As the US would deny such request, the ICC would be unable to have the suspect handed over.

• • • The BIAs based on Art. 98 (2) of the Statute have caused serious objections by the int’l. community and scholars. The European Union Parliament has declared through its decision of 19. 9. 2002 that no EU member or candidate State should sign such an agreement. In its decision of 25. 9. 2002 regarding the “Risks for the integrity of the Statute of the International Criminal Court” the Parliamentary Assembly of the Council of Europe stated the following: “ 9. Moreover, the Assembly is greatly concerned by the efforts of some States to undermine the integrity of the ICC Treaty and especially to conclude bilateral agreements aiming at exempting their officials, military personnel and nationals from the jurisdiction of the Court (“exemption agreements”). The Assembly considers that these “exemption agreements” are not admissible under the international law governing treaties, in particular the Vienna Convention on the Law of Treaties, according to which States must refrain from any action which would not be consistent with the object and the purpose of a treaty. 10. The Assembly recalls that States Parties to the ICC Treaty have the general obligation to cooperate fully with the Court in its investigation and prosecution of crimes within its jurisdiction (Article 86) and that the Treaty applies equally to all persons without any distinction based on official capacity (Article 27). It considers that the “exemption agreements” are not consistent with these provisions. 11. The Assembly also recalls that in Recommendation 1408 (1999), it asked the Committee of Ministers of the Council of Europe, inter alia, to invite member and observer States to «refuse to enter into agreements with States which are not parties to the statute in order to prevent nationals of their country who are accused of crimes against humanity from being handed over to the Court» . ”

• • • Similar decisions followed and other international organisations also stood up against US attempts to enter into BIAs. Even so, many states eventually gave in before American pressure and many States are known to have signed such agreements. Aware of this truth, the European Union has at least tried to provide some guidelines for those states intending to accept signing such agreements. The Council conclusions adopted on 30. 9. 2002 provide the following suggestions, annexed as “EU Guiding Principles concerning Arrangements between a State Party to the Rome Statute of the International Criminal Court and the United States Regarding the Conditions to Surrender of Persons to the Court”: The guiding principles listed below will preserve the integrity of the Rome Statute of the International Criminal Court and – in accordance with the Council Common Position on the International Criminal Court – ensure respect for the obligations of States Parties under the Statute, including the obligation of States Parties under Part 9 of the Rome Statute to cooperate fully with the International Criminal Court in its investigation and prosecution of crimes falling within the jurisdiction of the Court. The guiding principles are as follows: - Existing agreements: Existing international agreements, in particular between an ICC State Party and the United States, should be taken into account, such as Status of Forces Agreements and agreements on legal cooperation on criminal matters, including extradition; - The US proposed agreements: Entering into US agreements – as presently drafted – would be inconsistent with ICC States Parties’ obligations with regard to the ICC Statute and may be inconsistent with other international agreements to which ICC States Parties are Parties;

- No impunity: any solution should include appropriate operative provisions ensuring that persons who have committed crimes falling within the jurisdiction of the Court do not enjoy impunity. Such provisions should ensure appropriate investigation and – where there is sufficient evidence - prosecution by national jurisdictions concerning persons requested by the ICC; - Nationality of persons not to be surrendered: any solution should only cover persons who are not nationals of an ICC State Party; - Scope of persons: Any solution should take into account that some persons enjoy State or diplomatic immunity under international law, cf. Article 98, paragraph 1 of the Rome Statute. - Any solution should cover only persons present on the territory of a requested State because they have been sent by a sending State, cf. Article 98, paragraph 2 of the Rome Statute. - Surrender as referred to in Article 98 of the Rome Statute cannot be deemed to include transit as referred to in Article 89, paragraph 3 of the Rome Statute. - Sunset clause: The arrangement could contain a termination or revision clause limiting the period in which the arrangement is in force. - Ratification: The approval of any new agreement or of an amendment of any existing agreement would have to be given in accordance with the constitutional procedures of each individual state.

• • • As of December 2006, the US State Department reported 102 bilateral immunity agreements, with 39 of them into force. 46 of these agreements were made with states party to the Statute. 54 countries, 24 of which are party to the ICC Statute, have publicly refused signing, (of which 21 have lost US aid). It is reported that as of January 2009, 95 such agreements were into force. You may also check the following link: http: //www. amicc. org/usinfo/administration_policy_BIAs. html In reality, Art. 98 (2) does not result in impunity. In fact, states parties to the Rome Statute or even states not parties to the Rome Statute which have not entered into such BIAs may surrender the suspects to the ICC. Indeed, those states which have signed such agreements may still prosecute the perpetrators themselves, provided they have not given up jurisdiction altogether. However, Art. 98 (2) does cause an unjust privilege with regard to the nationals of those States not party to the Rome Statute which manage to convince other states to enter into such BIAs with them. The USA enacted laws that provided for sanctions for failure to sign a BIA. These included: the Nethercutt provision, renewed annually, which stopped Economic Support Fund (ESF) aid; and ASPA, which ended International Military Education and Training (IMET) and Foreign Military Funds (FMF) to nations unwilling to enter into a BIA with the United States.

American Servicemembers' Protection Act • The Act (ASPA), passed by Congress in August 2002, contains provisions restricting US cooperation with the ICC; making US support of peacekeeping missions largely contingent on achieving impunity for all US personnel; and even granting the President permission to use “any means necessary” to free US citizens and allies from ICC custody (prompting the nickname “The Hague Invasion Act”). • The legislation also contains waivers that make all of these provisions non-binding, however, the Bush administration has been using these waivers as bargaining chips to pressure countries around the world into concluding bilateral immunity agreements – or otherwise lose essential US military assistance.

• On March 11, 2009, President Obama signed into law the Fiscal Year 2009 omnibus appropriation bill, Public Law No. 111 -8, which did not include the so-called “Nethercutt Amendment”. • With the non-renewal of the Nethercutt provision and the repeal of military assistance funding under the American Servicemembers’ Protection Act (ASPA) in 2006 and 2008, no anti-ICC sanctions remain. • In addition, it is reported that since 2008, there have not been any reports of the US pursuing additional BIAs (http: //www. amicc. org/docs/Nethercutt 2009. pdf) • In any case, it is stated that without the Nethercutt amendment or other sanctions, the US has no leverage to compel further agreements or adherence to the existing ones.

Current American Stance- the shift • American public opinion and many American scholars do not share their administrations’s view with regard to the ICC. • According to a poll conducted by The Chicago Council on Foreign Relations, 76% of the participants think that the US should be a party to the Rome Statute, and 82% are favourable to the possibility of terrorist suspects being tried by the ICC. • The Obama Administration has initiated a full policy review of US policy towards the ICC. It has indicated that the US will take a more positive approach to the ICC. • As a candidate, Senator Barack Obama stated that his administration would cooperate with the Court on Darfur and other cases and consult closely with military and legal advisers before making a decision on whether to join the Court.

• • • In response to written questions by the Senate Foreign Relations Committee in January 2009, US Secretary of State Hillary Rodham Clinton stated that "we will end hostility to towards the ICC, and look for opportunities to encourage effective ICC action in ways that promote US interests by bringing war criminals to justice" (pp. 65 -66). On August 6, 2009 Secretary Clinton stated that it is a "great regret" that the US is not a member of the ICC but said that "we have supported the work of the court and will continue to do so under the Obama Administration. ” On February 26, 2011 the US voted in favor of Resolution 1970, adopted unanimously by the UN Security Council, which referred the situation in Libya to the ICC. The US had abstained from voting on the only other Security Council referral to the Court, Resolution 1593 (2005) on Darfur. • Following the guilty verdict in the Thomas Lubanga Dyilo case, which marked the completion of the Court's first trial, both the White House and the State Department issued statements in support of the ICC's work. • On March 22, 2013 the US facilitated the transfer of ICC suspect Bosco Ntaganda, wanted since 2006 for alleged crimes in the Democratic Republic of the Congo, following Ntagand's voluntary surrender at the US Embassay in Kigali, Rwanda, and request to be sent to The Hague. • For further info see (http: //www. amicc. org/usinfo/administration. html)

Overview • To resume, Western and Central European countries, as well as European-based int’l. organisations are strongly supportive of the ICC. • In fact, American-based int’l. organizations are also institutionally in favour of the Court. • In addition, US opposition to the ICC is no longer a stumbling block. Although no American ratification should be expected in the near future, the new administration is not trying to block the Court. • However, two permanent members of the UN Security Council, Russia and China are not parties to the Statute and China is rather hostile too. India is also not supportive of the ICC. Important states like Turkey and Israel have also not ratified the Statute. Therefore, many “big” countries are not in the sytem. • For the moment being, most of the burden will be on Western European countries. Even so, the Court will be able to survive and succeed without full American support. That being said, having the USA on board would provide an immense boost to the prospects of success of the ICC.

6. Entry into Force, Withdrawal, Reservations, Amendments • Art. 126 Entry into force 1. This Statute shall enter into force on the first day of the month after the 60 th day following the date of the deposit of the 60 th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations. 2. For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60 th instrument of ratification, acceptance, approval or accession, the Statute shall enter into force on the first day of the month after the 60 th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession. • The Rome Statute entered into force on July 1, 2002.

• Article 127 Withdrawal 1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. 2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective. ”

• According to Article 120, no reservations may be made to this Statute. • However, there is the transitional provision of Art. 124. It is a provisional rule that allows States to choose not to have their nationals subject to the Court’s jurisdiction over war crimes for a seven year period after ratification: “Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1. ” • Only two states have ever made use of this provision (France and Colombia). France later withdrew its declaration. Colombia’s declaration expired on 1 November 2009. • Interestingly, in the Review Conference which was held in Kampala, Uganda (31 May-11 June 2010), this provision was kept in its current form, and it was decided that it would be reviewed again in 5 years.

• Amending the Statute requires a very difficult process. Amendments regarding provisions of an institutional nature are governed by art. 122. Art. 121 applies to any other amendment. • According to Art. 121, the proposal for amendment can be taken up with a decision by a majority of those present and voting. However, 2/3 majority of ALL States parties is needed for the adoption of the proposal. • Furthermore, in order for the adopted proposal to enter actually into force, it needs to be ratified by 7/8 of ALL States parties! That is why an amendment looks really difficult unless it is a minor matter. • In addition, amendments to crimes within the jurisdiction of the Court will not apply to those States which have not accepted the amendment.

7. Structure of the ICC • Art. 34 of the Rome Statute (Organs of the Court) “The Court shall be composed of the following organs: (a) The Presidency; (b) An Appeals Division, a Trial Division and a Pre-Trial Division; (c) The Office of the Prosecutor; (d) The Registry. ”

7. 1 The Presidency • The Presidency is responsible for the overall administration of the Court, with the exception of the Office of the Prosecutor, and for specific functions assigned to the Presidency in accordance with the Statute. • The Presidency is composed of three judges of the Court, elected to the Presidency by their fellow judges, for a term of three years. • The President of the Court is Judge Sang-Hyun Song (Republic of Korea). Judge Sanji Mmasenono Monageng (Botswana) is First Vice-President, and Judge Cuno Tarfusser (Italy) is Second Vice-President. • Rule 8 of the RPE entrusted the Presidency with drawing up a Draft Code of Professional Conduct to be transmitted to the ASP for adoption. The Code in question was adopted on 2. 12. 2005, and entered into force on 1. 1. 2006.

7. 2 The Judicial Divisions • • • The ICC consists of eighteen judges (Art. 36 (1)) organized into the Pre-Trial Division, the Trial Division and the Appeals Division. The judges of each Division sit in Chambers which are responsible for conducting the proceedings of the Court at different stages. Assignment of judges to Divisions is made on the basis of the nature of the functions each Division performs and the qualifications and experience of the judge. This is done in a manner ensuring that each Division benefits from an appropriate combination of expertise in criminal law and procedure and international law. The judges shall be elected by secret ballot at a meeting of the Assembly of States Parties convened for that purpose (Art. 36 (6)). Subject to paragraph 7, the persons elected to the Court shall be the 18 candidates who obtain the highest number of votes and a two-thirds majority of the States Parties present and voting. No two judges may be nationals of the same State (Art. 36 (7)). Judges shall hold office for a term of nine years and, subject to subparagraph (c) and to article 37, paragraph 2, shall not be eligible for reelection (Art. 36 (9)). The judges shall serve as full-time members of the Court (Art. 35 (1)).

• • • The Appeals Division shall be composed of the President and four other judges, the Trial Division of not less than six judges and the Pre-Trial Division of not less than six judges (Art. 39 (1)). The Appeals Chamber shall be composed of all the judges of the Appeals Division (five judges); the functions of the Trial Chamber shall be carried out by three judges of the Trial Division; the functions of the Pre-Trial Chamber shall be carried out either by three judges of the Pre-Trial Division or by a single judge of that division in accordance with this Statute and the Rules of Procedure and Evidence (Art. 39 (2) (b)). The judges of the Court are: Sang-Hyun Song (Republic of Korea), Sanji Mmasenono Monageng (Botswana), Cuno Tarfusser (Italy), Hans-Peter Kaul (Germany), Akua Kuenyehia (Ghana), Erkki Kourula (Finland), Anita Ušacka (Latvia), Ekaterina Trendafilova (Bulgaria), Joyce Aluoch (Kenya), Christine van den Wyngaert (Belgium), Silvia Alejandra Fernández de Gurmendi (Argentina), Kuniko Ozaki (Japan), Miriam Defensor-Santiago (Philippines), Howard Morrison (United Kingdom), Anthony T. Carmona (Trinidad and Tobago), Olga Herrera Carbuccia (Dominican Republic), Robert Fremr (Czech Republic) and Chile Eboe-Osuji (Nigeria). Art. 52 of the Statute: The judges shall, in accordance with this Statute and the Rules of Procedure and Evidence, adopt, by an absolute majority, the Regulations of the Court necessary for its routine functioning. The “Regulations of the Court” were adopted and entered into force on 26. 5. 2004. Furthermore, based on Rule 126 of the Regulations, a Code of Judicial Ethics was also adopted on 9. 3. 2005.

7. 3 Office of the Prosecutor • • The Office is responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. The Office is headed by the Prosecutor. The first Prosecutor was Luis Moreno-Ocampo (Argentina), who was elected by the States Parties for a term of nine years (he took office in June 2003). The new Prosecutor is now the former Deputy Prosecutor, Mrs. Fatou Bensouda of Gambia. The Prosecutor shall be elected by secret ballot by an absolute majority of the members of the Assembly of States Parties. The Deputy Prosecutors shall be elected in the same way from a list of candidates provided by the Prosecutor. Unless a shorter term is decided upon at the time of their election, the Prosecutor and the Deputy Prosecutors shall hold office for a term of nine years and shall not be eligible for re-election (Art. 42 (4)). The prosecutors also serve on a full-time basis (Art. 42 (2)). The Office of the Prosecutor shall act independently as a separate organ of the Court. A member of the Office shall not seek or act on instructions from any external source (Art. 42 (1)). The “Regulations of the Office of the Prosecutor” were adopted and entered into force on 23. 4. 2009.

7. 4 Registry • • • The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. The Registry is headed by the Registrar who is the principal administrative officer of the Court. The Registrar exercises his or her functions under the authority of the President of the Court. The judges shall elect the Registrar by an absolute majority by secret ballot, taking into account any recommendation by the Assembly of States Parties. If the need arises and upon the recommendation of the Registrar, the judges shall elect, in the same manner, a Deputy Registrar (Art. 43 (4)). The current Registrar, elected by the judges for a term of five years, is Mr. Herman von Hebel (The Netherlands) who was elected on 8 March 2013. He was sworn in on 18 April 2013 and succeeds Ms Silvana Arbia of Italy. A Victims and Witnesses Unit is set up within the Registry (Art. 43 (6)). This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence. The “Regulations of the Registry” were adopted and entered into force on 6. 3. 2006.

7. 5 Other Offices • The Court also includes a number of semiautonomous offices such as the Office of Public Counsel for Victims and the Office of Public Counsel for Defence. • These Offices fall under the Registry for administrative purposes but otherwise function as wholly independent offices. • The Assembly of States Parties has also established a Trust Fund for the benefit of victims of crimes within the jurisdiction of the Court and the families of these victims.

7. 6 Assembly of States Parties • • - - - - • • Although not enumerated in Art. 34, the Assembly of States Parties (Art. 112) may also be considered as an organ of the Court as it has very important powers with regard to the functioning of the Court. The ASP consists of one representative of each state party to the Statute. Other States which have signed this Statute or the Final Act may be observers in the Assembly. The Assembly has, amongst others, the following tasks: Provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court; Consider and decide the budget for the Court (Budget for 2009: € 101, 229, 900; for 2010: € 103, 623, 300; for 2013: € 115, 620, 300); Decide whether to alter, in accordance with article 36, the number of judges; Consider any question relating to non-cooperation; The Assembly shall meet at the seat of the Court or at the Headquarters of the United Nations once a year and, when circumstances so require, hold special sessions. Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute: (a) Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting; (b) Decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting.

• The Rules of Procedure and Evidence and the document entitled “Elements of Crimes”, which elaborates in detail the elements constituting each crime, have been adopted by the ASP (entry into force: 9. 9. 2002). • The ASP also adopted the following documents: - Financial Regulations and Rules (entry into force 9. 9. 2002), - Agreement on the Privileges and Immunities of the ICC (adoption 9. 9. 2002, entry into force 22. 7. 2004. Ratified by 72 States) - Negotiated Relationship Agreement between the International Criminal Court and the United Nations (entry into force 4. 10. 2004), - Code of Professional Conduct for Counsel (adoption 2. 12. 2005, entry into force 1. 1. 2006). • The twelfth session of the ASP will be held between 20 -28 November 2013 in The Hague.