Peacekeeping Operations and the International Criminal Court - Presentation by Olivia Swaak-Goldman

Peacekeeping operations and the International Criminal Court[1]
Olivia Swaak-Goldman
Office of the Prosecutor, International Criminal Court


I. Introduction

The achievements of the International Criminal Court in the past ten years have been remarkable. There are now 108 States Parties, the Judges have issued 12 arrest warrants, resulting in 4 individuals in custody. The Office of the Prosecutor has opened investigations in 4 situations: the Democratic Republic of the Congo, Uganda, Darfur in the Sudan, and the Central African Republic. The OTP is also monitoring situations across 3 continents, including Afghanistan, Georgia, Kenya, Cote d’Ivore, Colombia and Chad. However we believe that the next ten years will be even more interesting. The Rome Statute is an innovative legal design modelled to address the threats and challenges of the new century.

In Rome in 1998, participants (including civil society organizations and states with varying legal traditions) debated the creation of the Rome Statute from very different perspectives, but all shared the same sense that their efforts were not just an exercise in putting ideas on paper. They knew that the new legal design would profoundly impact the way international relations are governed. Accountability and the rule of law would be the framework.

Under the Rome Statute, substantive law has been codified into one detailed text. States have reaffirmed their duty to prosecute those accused of the most heinous crimes. An independent, impartial and permanent International Criminal Court has been established; and authority has been vested in the Court to intervene if States fail to carry out their own responsibility to conduct genuine proceedings, while at the same time providing an incentive to States to assert their own responsibilities in the cause of international justice.

The Rome Statute creates a global criminal justice system based on the interaction between States, a permanent International Criminal Court, international organizations and civil society institutions, a system of interaction based on the two key concepts of complementarity and cooperation.

Let me spend just a minute on the issue of cooperation. It is essential to understand that the ability of the ICC to rely on strong and effective forms of cooperation from all of its partners will be critical for the successful execution of its mandate. As the Court’s President, Mr. Philippe Kirsch, has noted, the Court has been established on two pillars: a judicial pillar, represented by the Court itself, and an enforcement pillar, which in turn belongs to the States Parties.

As you know, the Court does not rely on an international enforcement agency to implement its mandate and execute its judicial decisions. Therefore, the Court’s mandate needs to be implemented indirectly by all States Parties, which accepted our mandate and recognized a series of obligations towards international criminal justice.

In this regard, one could say that the enforcement of the Rome Statute is dependant on national support (including through international organizations), for all matters pertaining to, for example, the collection of evidence, the security of witnesses, the conduct of searches and seizures, the execution of arrest warrants, and the surrender of persons. In all of these crucial matters for the enforcement of the Court’s mandate, we rely on the cooperation of States Parties.

One of the most significant aspects of the ICC is that, given the temporal jurisdiction of the Court, we have to investigate in the middle of ongoing conflicts. We have to do so in accordance with Article 68 (1) of the Statute, protecting the safety and well being of victims and witnesses during the investigation. In order to carry out expeditious investigations and prosecutions of massive crimes in this context of violence, we have come to rely on the cooperation and the support of international agencies in the field, and in particular of peacekeeping operations. Given the exponential development of the number and the mandates of these missions all around the world, they have become crucial partners of the Court in some investigations, while respecting their own mandate.

For the rest of my time this afternoon I would first like to discuss the general cooperation framework as established in the Rome Statute and how it applied to the Relationship Agreement between the ICC and the United Nations. Then I would like to discuss the Memorandum of Understanding with MONUC as an example of how peacekeeping operations and the Court can work together, before turning to the challenges facing cooperation. Finally I would like to touch briefly on investigations concerning crimes against peacekeepers.

II. Part IX Cooperation and the ICC-UN Agreement

Part 9 of the ICC Statute establishes the basis for cooperation in that it lays out the obligations of States Parties to cooperate with the Court, while also allowing the Court to invite cooperation from non-State Parties and international organizations. Additionally, under Article 54 of the Statute the Prosecutor can enter into specific agreements with international organizations and others to facilitate cooperation.

The regime for cooperation established under Part 9 touches upon some of the most critical aspects of interaction between the Court and national authorities. What is interesting is that the Rome Statute, which is a treaty arising out of four years of negotiations between States, attempts to arrive at a unique balance between what has often been referred to as the ‘vertical’ regime of the ad hoc Tribunals and the ‘horizontal’ regime of inter-State mutual legal assistance.

One of the clearest places we can see this is in the provision stating that requests for cooperation by the Court are to be executed “in accordance with the relevant procedure under the law of the requested State and, unless prohibited by such law, in the manner specified in the request, including following any procedure outlined therein or permitting persons specified in the request to be present at and assist in the execution process”. This has obviously proved particularly relevant for the Office of the Prosecutor, since the ability of the Prosecutor to control the manner in which evidence is gathered will often prove critical for the effectiveness of the investigation.

Priority areas have been identified in support of our investigations and prosecutions. State Parties have been asked to put in place procedures for the screening of witnesses, especially in refugee communities. States Parties have also been asked to set up emergency procedures for issuing visas for threatened witnesses, and some States have agreed to establish a “hotline” ensuring speedy visa processing.

Other priority areas of cooperation include: public and diplomatic support; arrest and surrender; information regarding the identification and whereabouts of persons or the location of items; protection of staff, victims and witnesses and preservation of evidence; facilitating voluntary appearance of witnesses; providing forensic expertise and examination of sites; service of documents and notification; operational support; and identification, tracing and freezing of assets.

For all these forms of cooperation, it is important to highlight that even though States Parties have a general obligation to cooperate with the Court (article 86), intergovernmental organizations, such as the UN, are not obliged to do so (article 87.6). However, in many of the situations before the ICC, field missions of international organizations or peacekeeping operations may have unique access to a particular territory.

In order for the Office of the Prosecutor to seek the cooperation of these organizations and missions, as it falls outside of the regime established by Part 9, it needs to enter into a separate agreement. Thus, by voluntarily signing the ICC-UN Relationship Agreement on 4 October 2004, the UN accepted a general “obligation of cooperation and coordination” with the Court (article 3). Part III of the Agreement clearly established the general rules and obligations on cooperation and judicial assistance between the Court and the UN.



III. A case study of cooperation between the ICC and a peacekeeping operation: the MONUC MoU

A year later, on 8 November 2005, these general provisions would help to give shape to the Memorandum of Understanding between the ICC and the UN on cooperation from MONUC, the UN Mission in the DRC.

The experience of the ICTY with the NATO-led peace enforcement operation in Bosnia and Herzegovina has shown that the conclusion of such agreements will be particularly important where an international organisation is exercising military or law enforcement powers in the territory subject to the Prosecutor’s investigations.

In the case of MONUC, the mandate of the mission was specifically revised to enable the possibility for ICC cooperation. After lengthy discussions resulting in the deletion of explicit reference to the ICC, the Security Council adopted a provision in Resolution 1565 (2004) which authorises MONUC to “cooperate with efforts to ensure that those responsible for serious violations of human rights and international humanitarian law are brought to justice, while working closely with the relevant agencies of the United Nations”.

As a result of compromise discussions, however, the provision was excluded from the categories of tasks in respect of which the use of force is permitted. Therefore, it cannot be relied upon for ICC requests that would require the exercise of enforcement powers.

The Memorandum of Understanding between the ICC and the UN on cooperation from MONUC arrived at a creative solution to this restriction by cross referencing other provisions of MONUC’s mandate where use of force is permitted. Paragraph 4 of Resolution 1565, for example, authorises MONUC to use all means necessary under a broad heading enabling assistance to the DRC authorities in re-establishing confidence, discouraging violence, and deterring use of force threatening the “political process”, and to enable free movement of UN personnel. Also of relevance, paragraph 5(c) authorises use of force for the disarming of “foreign combatants”.

Moreover, Security Council Resolution 1493 (2003) “authorizes MONUC to use all necessary means to fulfil its mandate in the Ituri district and, as it deems it within its capabilities, in North and South Kivu”. MONUC has implemented such provisions to assist the DRC authorities in the arrest and detention of combatants and militia leaders located in its areas of deployment. In a similar vein, the MONUC MoU provides that MONUC may agree to a request from the DRC Government in carrying out the arrest of persons sought by the Court in the areas where it is deployed, where this would be consistent with its mandate. Other enforcement powers made available under similar arrangements include MONUC’s preparedness to assist in search and seizure operations, the securing of crimes scenes, the transportation of suspects, security support, and emergency temporary refuge for ICC staff and witnesses.

At the same time, the MoU reserves ample flexibility for MONUC to consider such requests on a case by case basis, taking into consideration issues of security, operational priorities, consistency of the requested measure with its mandate and rules of engagement, as well as the capacity of the DRC authorities themselves to render the assistance sought. The enforcement powers of MONUC are thus made available at the request of the DRC Government, rather than that of the ICC.

Thanks to such a broad and robust cooperation agreement, the OTP was able to request MONUC’s cooperation regarding the transmission of various documents, as well as their assistance with the transportation and the security of suspects and witnesses. Additional forms of cooperation include the use of MONUC’s facilities in the field by OTP staff members, including IT facilities, work places, etc. The UN also agreed to take such steps as are within its powers to make available for interview members of MONUC whom there is good reason to believe have information that is likely assist an investigation and that cannot be reasonably obtained elsewhere. There are also provisions regarding testimony, and in fact the first witness to appear before the ICC is a former MONUC child protection officer.

Importantly, these forms of cooperation are also available to the Defence upon order of the Judges. In short, the MoU between the OTP and MONUC made all the compulsory powers of the mission available to the Office. Its provisions were consistent with MONUC’s mandate and the sovereignty of the DRC, and allowed the DRC authorities to fulfil their cooperation obligations towards the ICC.

Before I turn to the challenges and future possibilities, for the sake of completeness I would like to note that the ICC also has a cooperation agreement with the European Union. This agreement provides for certain forms of cooperation, mostly in Head Quarters, but also in the field.


IV. Challenges and future possibilities

The protection of confidential information

An issue which can have considerable impact on the provision of cooperation by peacekeepers and others is the assurance of confidentiality that the Prosecutor and the Court in general can offer to information providers. In many instances, without such guarantees, cooperation will simply not be forthcoming.

Clearly, since the Court is guided by principles of transparency and procedural fairness, the presumption is that information obtained during the course of an investigation will be gathered for its potential use as evidence in open court. There may be compelling circumstances, however, where an information provider, such as an intergovernmental organization or a peacekeeping mission, may fear that the disclosure of information it has provided could endanger the personal safety of staff or other individuals.

In certain circumstances, disclosure or even the fact that cooperation has been rendered could compromise the security and proper conduct of the operations and activities on the ground of the source. It may, moreover, violate a duty of confidentiality the information provider owes to a third party.

Accordingly, article 54(3)(e) of the ICC Statute, much like it predecessor Rule 70 under the ICTY/R RPE, grants the Prosecutor the power to accept documents or information, either in whole or in part, on the condition of confidentiality and subject to non-disclosure without the consent of the information provider. Materials so obtained are to be used solely for the purpose of generating new evidence, and therefore cannot be admitted before Chambers as evidence per se without the provider’s prior consent. Rule 82, also borrowing from ICTY/R Rule 70, deals with the situation where an information provider lifts the restrictions on materials that have been previously provided under article 54(3)(e). In order to instil confidence and to encourage cooperation from providers to assist in-court proceedings, the provision clarifies that the Chamber is barred from inquiring into the materials presented beyond the scope which the information provider has agreed to disclose.

Perhaps the most complex issue related to the promotion of cooperation under the promise of confidentiality is how this interest should be balanced vis-à-vis the rights of the accused and, in particular the duty of the Prosecutor to provide prompt disclosure of potentially exonerating information.

The Rome Statute is silent on where the balance lies. In the ad hoc tribunals, after considerable litigation and diverging jurisprudence, the matter was finally resolved by amendment of the Rules in July 2004 to clarify that Rule 68 (on exculpatory disclosure) is “subject to the provisions of Rule 70”; meaning that the duty of the prosecutor to disclose exonerating information cannot override an agreement on non-disclosure.

This amendment came too late to influence the drafting of the ICC’s Statute and Rules, thus the issue will have to be settled by the Chambers. It has already arisen in the context of the Lubanga case, our first trial, resulting in a stay in the proceedings.

The OTP with the Chambers are establishing procedures to respect the confidentiality required by information providers to protect the security of their staff and procedures to disclose all the relevant information to the defence. We are confident that we will harmonise the requirements for fair trials and the respect we owe to all those who are providing assistance to the Court: the witnesses, the victims, the NGOs and the United Nations. What is important is that the Court is building the foundations of an international criminal system for centuries, based on the highest standards.

The relationship between conflict resolution initiatives and justice

The cooperation between the ICC and peacekeeping operations is done on a case-by-case basis. The successful and robust agreement we reached with MONUC was the result of UN Member States and the DRC authorities agreeing to provide the Court with the manner and modalities for cooperation and judicial assistance in the DRC situation. In the Darfur situation, the UN/AU peacekeeping operation, UNAMID, does not have the mandate to assist us; it can also be inferred by the non-cooperation of the Government of Sudan that they would not accept cooperating with the Court in this sense. We have thus not asked UNAMID to assist us nor do we intend to.

As a result, there is still a discrepancy between the Court’s mandate and the enforcement of the mandate by States Parties and partners in the field. We can do more with States and multilateral institutions to find better solutions to arrest, to update and harmonize old conflict management strategies with the new reality created by the Rome Statute.

The drafters of the Rome Statute clearly recognized the intrinsic link between justice and peace. As stated in the Preamble of the Rome Statute, by putting an end to impunity for the perpetrators of the most serious crimes, the Court can contribute to the prevention of such crimes, thus having a deterrent effect.

We believe that international justice, national justice, the search for the truth and peace negotiations can and must work together; they are not alternative ways to achieve a goal; they can be integrated into one comprehensive solution.

Peace negotiations and operations must to respect our judicial mandate, just as we have to respect their independent mandates. Peace and justice can work together to bring real and sustainable peace.


Jurisdiction of the Court over crimes against peacekeepers

Since the 1990s, the issue of attacks on UN peacekeeping and humanitarian personnel has become the object of increased international concern. The adoption of the Convention on the Safety of UN and Associated Personnel in 1994 was a milestone in this regard with its inclusion of criminalization of these attacks and the principle of prosecute or extradite.

Subsequent Security Council resolutions have repeatedly condemned attacks on UN and associated personnel and called on States to prosecute persons responsible for such attacks. Security Council Presidential Statement S/PRST/2000/4, in particular, “welcomes the inclusion [of such attacks] as a war crime in the Rome Statute of the International Criminal Court”. Later statements and resolutions have called more generally on States to end impunity for such attacks.

Article 8(2)(b)(iii) and article 8(2)(e)(iii) of the Rome Statute characterizes as war crimes attacks intentionally directed at “personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations,” provided that they are entitled to the protection given to civilians and civilian objects under IHL.

Given the exceptional serious gravity of such crimes and given the serious consequences they can have not only for the victims, but also for the international community, the OTP has agreed with commentators such as the International Law Commission concerning the gravity of such offences. We decided that the gravity criterion - which is one of the key factors which the OTP uses to decide in which of the many situations under our jurisdiction we will open an investigation - in relation to such attacks will be weighed in qualitative, and not only quantitative, terms.

As the Prosecutor indicated in his reports to the UN Security Council in December 2007 and June 2008, the OTP is currently investigating the 29 October 2007 attack on the AU Mission in Sudan Haskanita base, where 10 soldiers were killed, 8 injured and 1 unaccounted. Additionally, attacks on humanitarian convoys have a devastating effect, and the Prosecutor clearly indicated that such attacks or threats of attack on peacekeepers and aid personnel will be investigated by his Office.

V. Conclusion

I would like to note that in the end, the successful implementation of the Rome Statute provisions will require that all States Parties respect their obligations and ensure, as individual states and as members of international and regional organizations, that the judicial mandate of the Court is respected.
[1] The author thanks Rod Rastan and Antonia Pereira DeSousa for their invaluable help in preparing this speech.