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PGA Memorandum on the Status of the ICC Dossier in the States of the Pacific Islands Forum Prepared for the ICC ASP Presidency July 24, 2017

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PGA Memorandum on the Status of the ICC Dossier in the States of the Pacific Islands Forum Prepared for the ICC ASP Presidency July 24, 2017 PGA Memorandum on the Status of the ICC Dossier in the States of the Pacific Islands Forum Prepared for the ICC ASP Presidency July 24, 2017 Table of Contents I. EXECUTIVE SUMMARY 1 II. NON- PARTY STATES TO THE ROME STATUTE 2 A. KIRIBATI 2 B. MICRONESIA 4 C. NIUE 6 D. PALAU 7 E. PAPUA NEW GUINEA 8 F. THE SOLOMON ISLANDS 10 G. TONGA 11 H. TUVALU 14 III. STATES PARTIES TO THE ROME STATUTE 16 I. AUSTRALIA 16 J. THE COOK ISLANDS (A STATE IN FREE ASSOCIATION WITH NEW ZEALAND) 18 K. FIJI 20 L. THE MARSHALL ISLANDS 21 M. NAURU 22 N. NEW ZEALAND 24 O. SAMOA 26 P. VANUATU 29 I. Executive Summary The purpose of this memorandum is twofold: first, to highlight developments in the Pacific Islands Forum`s States that are not yet parties to the Rome Statute (RS) of the International Criminal Court (ICC), and to assess steps towards their ratification/accession to the RS as well as any potential political obstacles preventing it. Secondly, in respect of Pacific Islands Forum`s States Parties to the RS, the memorandum provides a brief overview of the status of implementation and assesses the prospects and recommendations to achieve full implementation of the RS, ratification of the Kampala Amendments, accession to the Agreement on the Privileges and Immunities of the Court (APIC) and the signature of voluntary agreements on cooperation. Of the 16 independent and self-governing states that comprise the Pacific Islands Forum, eight are States Parties to the RS), namely Australia, the Cook Islands (a State in free association with New Zealand that is not a UN Member State), Fiji, the Marshall Islands, Nauru, New Zealand, Samoa and Vanuatu. The remaining eight, Kiribati, Micronesia, Niue Islands (a State in free association with New Zealand that is not a UN Member State), Palau, Papua New Guinea, The Solomon Islands, Tonga and Tuvalu are non-States Parties. Apart from Australia and New Zealand, those 14 Asia-Pacific Islands are all members of the African, Caribbean and Pacific Community (ACP) and are bound by the revised Cotonou Agreement with the European Union. By agreeing to Article 11.7 of the revised Cotonou Agreement, all parties have recognized the importance of the ICC as a mechanism for peace and international justice. These states have committed “to seek to take steps towards the ratification and the implementation of the Rome Statute, and to fight against international crime” through the Rome Statute system. As a whole, the Pacific Island nations appear to be eager to be credentialed as upstanding members of the international community that honor international commitments - both due to the validation and the implicit/explicit link to aid and development assistance flows. However, overall, financial constraints and inadequacy of human resources in the States’ apparatus seem to be the main obstacle in the region. Financial support by neighboring countries, support with legal expertise (can be offered by PGA) and an almost zero-cost assessed contribution to the ICC’s budget will provide a strong incentive towards accession to the RS. Furthermore, another regional issue is the critical urgency of climate change, as well as pressing issues related to migrants/refugees and economic development, which might make international justice appear less relevant and get pushed down the agenda of governments. Recent mentions by the ICC Prosecutor regarding environmental crimes could give a strong incentive to Asia-Pacific Island States to become States Parties to the RS. “Climate justice” is a main issue for Asia-Pacific policy-makers and public opinion. 1 II. Non- Party States to the Rome Statute A. Kiribati Government type: Republic - parliamentary democracy Kiribati is a member of the Commonwealth of Nations PGA Members: 1 Objective: Accession to the Rome Statute Status • Rome Statute: Not signed or acceded • Agreement on the Privileges and Immunities of the International Criminal Court (APIC): Not signed or acceded • Amendments to the RS: None • Bilateral Non-Surrender Agreement (BNSA) with the United States: Signed on 4 March 2004 (entered into force 4 March 2004 as executive agreement) Background Kiribati has not ratified most international humanitarian and human rights law instruments, but is a party to the 1949 Geneva Conventions (but not their Additional Protocols). During the Universal Periodic Review (UPR) in 2010, Kiribati rejected two recommendations to accede to the Rome Statute (made by Canada and France) and explained that “This is not feasible in light of the existing national capacity and resource constraints.” Subsequently, in March 2011, during the First PGA Asia-Pacific Conference on the ICC and Rule of Law organized in Kuala Lumpur organized by Parliamentarians for Global Action in cooperation with the Malaysian Parliament, the President of the Parliament of Kiribati stated that the government was still in the process of studying the ICC and assessing its own capacity to be a State party. That same month, the Speaker of the House of the Assembly of the Parliament of Kiribati, Hon. Taumati Iuta welcomed the progress on the relationship between the ICC and key states not parties to the Rome Statute and announced a full briefing to Parliament and Government to advance the accession process. 2 A promising meeting with the Attorney General (AG), Titabu Tabane took place in July 2011 at the Commonwealth Law Ministers meeting in Sydney, at which the Revised Commonwealth Model Law to Implement the RS of the ICC was adopted (to the drafting of which PGA had contributed). Hon. Tibatu said that a decision on RS accession needed to be introduced to the Cabinet without being approved by the Parliament. The Cabinet would need to know the advantages, costs, and benefits of accession. During the meeting, the AG stressed that any assistance as regards the substance would be welcome. At the “Workshop for the Universality of the Rome Statute of the International Criminal Court and the Kampala Amendments on the Crime of Aggression in the Pacific Region,” which took place in New Zealand in March 2014, Kiribati representatives raised questions about the ability of the Rome Statute to address such environmental crimes as global warming and rising sea levels – the main issues Kiribati faces with regards to social justice. The two delegates in attendance reiterated what the President of the Parliament stated in 2011 – that they are still in the stage of studying and learning more about the ICC. They also asked for help and more information on the Rome Statute. At the 21st session of the UPR (19-30 January 2015), Kiribati rejected five recommendations regarding accession to and implementation of the Rome Statute of the ICC, and accession to the APIC. Potential Obstacles There do not appear to be impediments in terms of encouraging Kiribati, as well as other Small Island States (SIDs) in the Asia-Pacific region, to consider Rome Statute ratification. Kiribati’s international legal framework needs to be further expanded. However, although there do not seem to be political obstacles to accession in Kiribati, other domestic exigencies and the lack of technical and financial capacity have been oft-cited as barriers to its development. While legal technical assistance has been provided by PGA in form of a full package for accession, it is likely that more assistance will be required. PGA Activities PGA partnered with a major Pacific Islands conference on the ICC held in Auckland, New Zealand, in February 2014; this conference laid the groundwork for the PGA President and Secretary General to make a direct contribution to Kiribati’s accession process through the submission of a Cabinet Memo and other papers necessary for the accession process in March 2014. PGA delivered a complete technical assistance package on accession to the amended RS, along with the commonwealth model on implementation to the government of Kiribati. 3 The memorandum prepared by PGA included draft Cabinet papers on accession containing basic information on the Rome Statute of the ICC, a detailed overview of the content of the Statute, and Recommendations for Action to proceed with the accession to the Statute by the Government of Kiribati (including a draft Rome Statute accession notification letter). While the Cabinet has not yet taken action on this Memo, relevant follow-up in conjunction with Civil Society and Governmental partners in the Pacific region is ongoing. PGA has been following up on progress, in cooperation with the involvement of PGA National Group in New Zealand and, the alliances of Green Parties (given that Kiribati’s priority in foreign relations is climate change), the Commonwealth Parliamentary Association, and – albeit with lesser feedback – the Pacific Island Forum Secretariat. Recommendations • Educate stakeholders on the benefits and incentives of joining the ICC – this can be done through providing more information, inviting representatives from the region to attend the Assembly of States Parties conference, engaging in continuous dialogue, and contextualizing accession and implementation through regional organizations such as the Pacific Islands Forum. • Inquire about current obstacles to accession. • Assess needs and seek synergies with institutional actors (e.g. the EU, within the framework of the ACP-EU Cotonou Agreement) to de-block the stalemate, which appears to derive from the lack of human resources to handle the ICC Dossier. • Request a timeline for accession from Kiribati authorities. • Encourage accession to the APIC. • Identify partners that may offer financial support (no cost for accession, zero contributions to budget). B. Micronesia Government type: Federal republic in free association with the US PGA Members: 1 Objective: Accession to the Rome Statute Status • Rome Statute: Not signed or acceded • APIC: Not signed or acceded 4 • Amendments to the RS: None • BNSA with the United States: Signed on 24 September 2002 Background During the ICC Pacific Outreach Roundtable (held in Sydney, Australia, in 2012), it was noted that in its last UPR in November 2015, Micronesia confirmed its commitment to address the Rome Statute.
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