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PGA Memorandum on the Status of the ICC Dossier in the States of the 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. 2 B. MICRONESIA 4 C. 6 D. 7 E. 8 F. THE 10 G. 11 H. 14

III. STATES PARTIES TO THE ROME STATUTE 16 I. 16 J. THE (A STATE IN FREE ASSOCIATION WITH ) 18 K. 20 L. THE 21 M. 22 N. NEW ZEALAND 24 O. 26 P. 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, and Pacific Community (ACP) and are bound by the revised Cotonou Agreement with the . 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 ” 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 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 Kiribati is a member of the 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 : Signed on 4 2004 (entered into force 4 March 2004 as executive agreement)

Background Kiribati has not ratified most international humanitarian and 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 and ) 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 organized in Kuala Lumpur organized by Parliamentarians for Global Action in cooperation with the Malaysian , 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 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 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 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.

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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 2015, Micronesia confirmed its commitment to address the Rome Statute. It was explained that while efforts have been slow in relation to the ICC, this has been necessary in light of the country’s political, economic, and security ties with the US.

Capacity to develop implementing legislation is a significant issue. Micronesia is reluctant to ratify treaties without the capacity to develop implementing legislation in light of being placed in the third tier of the US Government’s trafficking in persons report card – a result of a lack of domestic legislation to address the issue.

Current domestic priorities identified were trafficking in persons, and transnational crime (especially people smuggling and money laundering). While the Rome Statute “was not in Micronesia’s current vocabulary,” this did not mean that the country should not be a party to the Rome Statute.

Potential Obstacles Possibly the Relationship with the United States in connection with financial considerations: Though formally independent, in 1986 Micronesia signed a "Compact of Free Association" with the US. The US took on responsibility for defense and gained the right to set up military bases and deny other nations access to Micronesia. Micronesia also takes its cue from Washington on foreign policy. A renegotiated 20-year compact, worth $3.5 billion to Micronesia and the Marshall Islands, was signed by US President George W. Bush in 2003.

PGA Activities PGA received a letter from the Speaker of the of Micronesia in 2009 indicating that he would be supportive of any government initiative to accede to the Rome Statute.

Recommendations • Remind Micronesia of its commitment towards accession made in the 2015 UPR.

5 • Identify partners that may offer financial support (no cost for accession, zero contributions to budget). • Inform about enslavement as a crime against humanity under the Rome Statute and the relationship to human trafficking since this seems to be on the countries agenda. • Inform about the focus of the ICC on fighting sexual and gender based violence.

C. Niue

Government type: self-governing parliamentary democracy; in free association with New Zealand PGA Members: 1 Objective: Accession to the Rome Statute

Status • Rome Statute: Not signed or acceded • APIC: Not signed or acceded • Amendments to the RS: None • Bilateral Non-Surrender Agreement (BNSA) with the US: None

Recommendations • Since all Niue’s citizens are automatically citizens of New Zealand, it would be suggested to talk to New Zealand about encouraging Niue to join.1 • Niue is not a UN Member State. Like Cook Islands (which became a State Party to the RS thanks to the leadership initiative of a PGA Member who served in 2008 as co-chair of the ACP-EU Joint Parliamentary Assembly), Niue decided not to become a UN Member States, as it would have entailed a renunciation of NZ (as explained by Helen Clark). • PGA will continue to use the ACP-EU Joint Parliamentary Assembly as a forum in which to push for the implementation of Art. 11.7 of the revised Cotonou Agreement via inter-parliamentary dialogue to be carried out by PGA Members of the European Parliament and PGA Members from National delegations from Parliament of Africa, the Caribbean and/or the Pacific.

1 The same applies to citizens of Cook Islands

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D. Palau

Government type: Constitutional government in free association with the United States PGA Members: 0 Objective: Accession to the Rome Statute

Status • Rome Statute: Not signed or acceded • APIC: Not signed or acceded • Amendments to the RS: None • BNSA with the United States: according to AMICC and Human Rights Watch, the reporting signing date of the agreement was 3 September 2002

Background During the ICC Pacific Outreach roundtable (2012), Ms. Ernestine Rengiil, Attorney General, indicated that while accession to the Rome Statute was not at the top of the administration’s agenda, it was hoped that it would become a priority and she hoped that Roundtable participants will be able to provide assistance if she needs help in this regard. She said that in an election year it was realistic to think that she might be able to open some doors but nothing further could be promised at this stage.

During the 24th UPR process (January 2016), Palau noted recommendations to accede to the Rome Statute and to APIC.

Since January 2017, there is a new Administration in Palau. Although the incumbent president narrowly won re-election over his principal challenger, also his brother-in-law, a new parliamentary composition may offer renewed opportunity to engage on the ICC.

Potential Obstacles As with Micronesia, the strong relationship with the US may present an impediment to further progress.

PGA Activities In 2004, Hon. William Ngiraikelau participated in the third session of PGA’s Consultative Assembly of Parliamentarians for the ICC and the Rule of Law held in Wellington.

7 In November 2016, PGA delivered a complete technical assistance package on accession to the Rome Statute, along with a draft Cabinet Memorandum, to the Permanent Representative of Palau to the UN, who promised to renew its quest to the central Government to accede to the RS. Palau is a staunch military ally of the US, and PGA will try to ensure that there is a correct perception of the ICC Dossier by relevant authorities in 2017. The informed PGA that there was going to be a change of Government and that he would have pursued the project of RS accession with the new Administration, which however appears to focusing on climate change as main priority.

Recommendations • Engage in activities to increase of the level of knowledge on the work of the ICC • Follow up with the newly appointed Ambassador of Palau to the UN in New York regarding the technical assistance provided by PGA to his predecessor and existing obstacles • Address Palau’s representative in Brussels in the framework of the revised Cotonou Agreement (ACP-EU)

E. Papua New Guinea

Government type: Parliamentary Constitutional Papua New Guinea is a member of the PGA Members: 1 Objective: Accession to the Rome Statute

Status • Rome Statute: Not signed or acceded • APIC: Not signed or acceded • Amendments to the RS: None • BNSA: Signed with the U.S. on 30 September 2004. This is an executive agreement and was not adopted by Parliament.

Background In August 2008, in advance of an ICRC seminar on the ICC, Dr. Allan Marat, then Papua New Guinea's Attorney General and Minister for Justice, was quoted in the media as supporting the ICC.

8 In Sydney, in July 2011, ICC President Song met bilaterally with PNG Secretary of the Department of Justice Lawrence Kalino on the margins of the Commonwealth Meeting of Law Ministers. Justice Kalinoe indicated his willingness to prioritize the Rome Statute.

On 28 October 2011, President Song met with UN Ambassador Robert Guba in New York. This contact led to the transmission of the Commonwealth Model Law, which could have potentially moved the dossier of the ICC forward. The Ambassador was very positive about prospects for accession and said he would contact the Legal Secretary to get the process moving.

During the ICC Pacific Outreach Roundtable (2012), the representative of PNG indicated that the Government was committed to strengthening the law relating to human rights and has already invested significant resources in strengthening its international crime cooperation laws, a key step toward becoming a State Party to the Rome Statute. Given these policy commitments, the recognition that PNG is part of the international community, and the importance attached to international cooperation, the view was expressed that accession to the Rome Statute would fit within the broad spectrum of the Government’s policies.

Potential Obstacles Resource constraints were identified as a key factor delaying PNG’s accession. The receipt of technical assistance in this context would be necessary.

Prior to 2012, it was indicated that the existence of historic amnesties had been an issue of concern, but as a result of discussions at the UNSW Justice For All Conference, it was now understood that the Court generally operated on a principle of non- retroactivity.

PGA Activities

In 2014, in the margins of the Workshop for the Universality of the Rome Statute of the ICC and the Kampala Amendments on the Crime of Aggression in the Pacific Region organized by Liechtenstein, New Zealand, and the Global Institute for the Prevention of Aggression, the PNG government expressed the need for technical support. Upon this request, PGA's President and Secretary-General met with a representative of the Government and described how to address, step by step, the requested technical assistance.

Recommendations • Provide technical assistance

9 • Organize activities aimed at raising awareness of the ICC system • Identify partners that may offer financial support and offset the small costs for accession and the limited contribution to ICC budget (which would be consequential to accession)

F. The Solomon Islands

Government Type: Parliamentary Monarchy The Solomon Islands is a member of the Commonwealth of Nations PGA Members: 1 Objective: Ratification of the Rome Statute

Status • Rome Statute: Signed the Rome Statute on 03 December 1998 • APIC: Not signed or acceded • Amendments to the RS: None • BNSA: Signed on 19 September 2003

Background The ICC presidency reported to PGA in 2007 receiving requests of technical assistance from the government of Solomon Islands to proceed with accession. The Solomon Islands was last reviewed during the 24th session of the UPR in 2016. It noted all recommendations to ratify and implement the RS as well to accede to APIC (in 2011, this process led to Ecuador’s signature and ratification of the Rome Statute).

The Solomon Islands had initiated a constitutional reform process. It was reported that the Constitutional Reform Unit was at the final stage of consultations in January 2016.2 However, the timeline for when the new federal constitution would come before Parliament was not clear.

Potential Obstacles PGA received indications that the Government is committed to ratify, but bilateral problems between Australia and Solomon Islands and between New Zealand and Solomon Islands might have negatively impacted the progress of the ICC dossier.

2 Compilation prepared by the Office of the High for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/265/20/PDF/G1526520.pdf?OpenElement, p. 3

10 PGA Activities PGA has offered to provide technical assistance to Solomon Islands’ legislators.

Recommendations • Follow-up (and, as necessary, repeat) the previous offer of technical assistance • Monitor the ongoing constitutional reform process for potential opportunities • Remind on the recommendations received and agreed to during the 2016 UPR

G. Tonga

Government type: Tonga is a member of the Commonwealth of Nations PGA Members: 4 Objective: Accession to the Rome Statute

Status • Rome Statute: Not signed or acceded • APIC: Not signed or acceded • Amendments to the RS: None • BNSA: Signed on 21 March 2003; entered into force 24 March 2004

Background At the 2008 UPR Tonga rejected a recommendation from to accede to the Statute answering that “The death penalty remains the ultimate criminal sanction lawfully available to the State and has only been imposed in the most heinous of cases some 26 years ago. The current determination for constitutional and political reform and the consideration of other international human rights instruments may offer further opportunities for discussion and debate on this issue.”

As reported confidentially by the ICC Presidency, at a bilateral meeting held between ICC President Song and Tonga’s Solicitor General Aminiasi Kefu in Sydney in July 2011, in the margins of the Commonwealth Meeting of Law Ministers, Mr. Kefu indicated the importance of US relations with Tonga, but said that the ICC could be promoted as part of a wider review of criminal law. Following that meeting, Tonga’s Solicitor-General prepared a cabinet submission, resulting in a Cabinet decision in November 2011 directing the Law Office to provide a policy paper on becoming a party to the Rome Statute and adopting implementing legislation.

11 On 16 February 2012, an ICC Pacific Outreach Roundtable was convened in Sydney by the Government of Australia, the Government of New Zealand, and the , to discuss issues relating to the accession of Pacific States to the Rome Statute and the implementation of the Statute into domestic law. At the meeting, the representative of Tonga, Mr. Sione Sisifa, noted the government’s intention to become a State Party to the Rome Statute and reported that a RS accession bill based on the policy paper being developed subsequent to the 2011 Commonwealth meeting had been filed for deliberation and approval by the Parliament.

On the issue of technical and other forms of assistance, Tonga suggested that it be channelled through one or two fora (e.g. Pacific Islands Forum, New Zealand, or the Commonwealth) in order for small island states such as theirs to engage with ICC matters in a more streamlined manner. The AG also asked about the possibility of ICC fees being waived for smaller island states, which would serve as an incentive to prioritizing the ICC especially to those who do not have particular reservations with signing or acceding to the Rome Statute and Kampala Amendments.

An accession bill had been ready for submission to Parliament, but following a vote of no confidence in the Parliament in August 2012, the process was put on hold.

During the 15th session of the UPR in January 2013, Tonga accepted five recommendations to accede to the Rome Statute (made by Costa Rica and France); and fully align its national legislation with the Rome Statute (made by Latvia); and to accede to the APIC (made by Estonia and Slovakia).

Tonga was among the beneficiaries of the PIFS-EU Ratification and Implementation of Human Rights Treaties Project (2012-2015), funded by the EU through the Pacific Islands Forum Secretariat (PIFS). The project facilitated assistance to small Pacific island countries that have a limited human capacity and financial resources to ratify and report on international norms and standard, including accession to the Rome Statute.

Potential Obstacles In March 2014, at a workshop held in New Zealand, entitled “Workshop for the Universality of the Rome Statute of the ICC and the Kampala Amendments on the Crime of Aggression in the Pacific Region,” the Attorney General of Tonga shared that there are two obstacles it faces with regards to signing the Rome Statute. Firstly, there is issue of no immunity for Heads of State; and secondly, the BNSA signed with the US. State authorities stated that the Foreign Affairs department of Tonga needs clarification and assurance from the US that moving forward with the ICC will not be an issue.

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Thirdly, the required absence of death penalty in the Rome Statute and the national prerogative to apply it might be a source of confusion and opposition to the Statute.

PGA Activities In March 2008, Hon. Havea Tu’iha’ateiho, MP attended PGA’s Workshop in Apia, Samoa, on “Enhancing and the Rule of Law in the Pacific Islands- The Role of Parliamentarians” where a panel was devoted to the ICC. Hon. Tu’iha’ateiho demonstrated general support for RS accession.

In 2012, The Speaker of the Tongan Parliament and the Chair of the Committee of the Whole of Parliament attended the 7th CAP ICC organized by PGA in the Italian Parliament. He demonstrated great interest during the visit, through which his delegation had the opportunity to meet with the Presidents of the ICC and ASP. During the meeting, the Tongan representatives confirmed to PGA officers that the Government is working towards accession to the RS.

In 2013, Hon. Pohiva, MP, a PGA Member (opposition), pledged for accession to the RS at the PGA Annual Forum in Colombia3 and promised to follow up on past declarations of the Government of Tonga in support of accession and to report on progress to PGA.

In October 2015, PGA delivered a complete technical assistance package on accession of the amended Rome Statute to the then new Prime Minister Tohiva at his visit to PGA HQ in New York. Since then, Hon. Tohiva did not react to follow up enquiries made by the PGA team. At the moment, there is no information on the PM ever moving forward on this.

In September 2016, a PGA Member from Tonga (Member of the Legislative Committee) met with the Secretariat in New York and promised to follow-up on the accession instruments provided for by PGA to the PM in 2015, which were resubmitted to this MP.

Recommendations • Follow-up on Tonga’s statement at the February 2012 ICC Pacific Outreach Roundtable that accession legislation had been drafted, and obtain an update on the status of the Cabinet’s consideration of accession • Remind Tonga on all its commitments at several PGA meetings

3 In February 2017, the Tongan Parliament rejected the Motion for a vote of no confidence in the Prime Minister Hon. 'Akilisi Pohiva.

13 • Request a timeline for accession • Inform/remind Tonga authorities of the EU grant to the Pacific Islands Forum Secretariat and the related possibility of receiving capacity building/technical assistance to facilitate progress towards accession • Encourage accession to the APIC • Clarify the perceived incompatibility of national legislation with the penalties regime of the Statute, potentially through a memorandum on the death penalty and the ICC (PGA can assist in the preparation of the memo) • Provide information to clarify eventual concerns with respect to immunities of the . The reference to immunities included in national legislation has lead several States to evaluate their national provisions on immunity, and the effects of such provisions before the ICC given the incompatibility of these provisions with the Rome Statute. Other constitutional (e.g. Belgium, Denmark, , The Netherlands, and Norway) have found various ways to overcome this issue either through a reinterpretation of the constitution or through amendment. The experiences of these countries may be informative • Follow-up on the Prime Minister` s commitments to Rome Statute accession (PGA can help to arrange this meeting if needed) • Inform that the US BNSA was repealed in 20084

H. Tuvalu

Government Type: Parliamentary Democracy Tuvalu is a member of the Commonwealth of Nations

PGA Members: 2 Objective: Deposit of the instrument of accession to the Rome Statute at the UN

Status • Rome Statute: Not signed or acceded • APIC: Not signed or acceded • Amendments to the RS: None • BNSA: Entered into force on 03 February 2003

4 In addition, in March 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” which had previously allowed for cuts in Economic Support Funding (ESF). With the repeal of the ASPA prohibition and the non-renewal of the Nethercutt provision, no anti-ICC sanctions are still in effect.

14 Background In February 2012, the EU signed a grant contract agreement of $2.3M with the Pacific Islands Forum Secretariat to assist small Pacific island countries that have a limited human capacity and financial resources to ratify and report on international norms and standard, including accession to the Rome Statute.

At the 2012, ICC Pacific Outreach Roundtable in Sydney the representative of Tuvalu noted lacunae in the government’s experience in relation to the Rome Statute system, she iterated the government’s viewpoint that becoming a State Party was an objective, and reported that a RS accession bill had been filed for deliberation and approval by the Parliament.

At the 16th session of the Universal Periodic Review (22 April - 3 May 2013), Tuvalu accepted two recommendations: to accede to the Rome Statute (made by Australia and Uruguay) and one recommendation to accede to the Rome Statute and the APIC (Estonia). However, during the presentation by the State under review, the delegation reiterated that “the Government had already endorsed accession to the Rome Statute of the International Criminal Court.”

Tuvalu has completed its domestic process with the Cabinet already having endorsed the accession. The only remaining step is for the government to deposit the instrument at the UN.

Potential Obstacles • The BNSA with the US could be an issue, however, this might not be the case given that in practice, all that is outstanding is the deposit of the instrument of accession. • It is possibly not high on the country`s agenda • Financial reasons

PGA Activities In July 2011, during the Commonwealth Law Ministers meeting, then Prime Minister Willy Telavi said he would be happy to consider technical assistance from the Commonwealth, and asked the President of the ICC to write to him setting out the key points.

PGA Members in New Zealand have been pushing for Tuvalu’s accession to the Rome Statute since years. They hold a number of bilateral meetings with MPs and the AG.

15 In February 2014, a high official in the government informed PGA that the RS accession bill was sent to Parliament, upon which PGA mobilized its members, but it appears that Parliament failed to take the necessary action for its treatment and adoption.

Recommendations • Inquire about the current status of its Rome Statute accession process; Tuvaluan authorities should be encouraged to deposit the instrument of accession with the UN, without delay • Offer capacity-building/technical assistance to facilitate progress towards accession and inquire as to what specific activities or forms of assistance would be most important to set the accession procedures in motion • Follow-up on Tuvalu’s statement at the February 2012 ICC Pacific Outreach Roundtable that accession legislation had been drafted • Inform/remind Tuvaluan authorities of the EU grant to the Pacific Islands Forum Secretariat and the related possibility of receiving capacity-building/technical assistance to facilitate progress towards accession • Encourage accession to the APIC • Address any concerns related to the position of the US towards the ICC • Address national implementation

III. States Parties to the Rome Statute

I. Australia

Government type: Parliamentary democracy (Federal Parliament) under a constitutional monarchy; a

PGA Members: 10 Objectives: • Ratification of Kampala Amendments • Accession to APIC • Signature of Voluntary Agreements on cooperation with the ICC

Status • Rome Statute: Ratified on 01 July 2002 • APIC: Not signed or acceded

16 • BNSA: None • Amendments to the RS: None • Voluntary Agreements with the ICC: None (according to information available to PGA)

Australia implemented the Rome Statute through the International Criminal Court Act 2002 (Act No. 41 of 2002 as amended) which includes substantial provisions on cooperation with the ICC, as well as the International Criminal Court (Consequential Amendments) Act 2002 (No. 42, 2002), which implements Rome Statute crimes into domestic legislation.

Status of Implementation of the Rome Statute • Complementarity: Enacted (International Criminal Court Consequential Amendments) Act 2002 (No. 42, 2002) +War Crimes Act 1945, War Crimes Amendments Act 1988, + Division 268 of the Criminal Code Act 1995 Vol 2; o Missing provisions: Art. 27 (Irrelevance of official capacity) Art. 29 (Non-applicability of Statute of limitations) Non-applicability of amnesties • Cooperation: Enacted (the International Criminal Court Act 2002 (Act No. 41 of 2002 as amended) o Central authority: Attorney-General

Activities by PGA members In November 2015, members of PGA’s Australian National Group, led by the Chair of the PGA National Group, Hon. Melissa Parke, MP, met with experts to discuss the important role of the ICC in Australia, and the country’s leadership role in securing stability and peace in the region, and in the promotion of the fight against impunity, democracy and good governance under the Rule of Law. During the meeting, Hon. Parke also touched on the important role Australia has to play in the Asia Pacific region as an example for effective ratification and implementation of the Rome Statute.

Potential obstacles towards the ratification of the Kampala Amendments

As noted below in the section on Nauru, Australia might face analysis of potential crimes against humanity regarding the plight of refugees and migrant workers in Australian detention centers on Nauru. In February 2017, the Global Legal Action Network and the Stanford International Human Rights Clinic submitted a 108-page dossier to the ICC calling for an investigation into possible “crimes against humanity committed by individual and corporate actors.” The fact that Australia might face these accusations could reduce the

17 political willingness to take further action towards the ratification of the Kampala Amendments, regarding which the Australian Permanent Mission to UN has made significant contributions to the debates within the framework of the ASP.

Recommendations • Encourage the leadership role of Australia to further promote the fight against impunity in the Asia-Pacific Region • Inquire about the political will to ratify the Kampala Amendments and signature of voluntary agreements on cooperation with the ICC • Encourage ratification of APIC

J. The Cook Islands (a State in free association with New Zealand)

Government type: Self-governing under Constitution, in free association with New Zealand: Cook Islands is responsible for internal affairs; New Zealand has responsibility for external affairs, in consultation with the Cook Islands PGA members: 3 Objectives: • Implementation of the Rome Statute • Ratification of Kampala Amendments • Accession to APIC • Signing of Voluntary agreements on cooperation with the ICC

Status • Rome Statute: Ratified on 18 July 2008 • APIC: Not signed or acceded • BNSA: None • Amendments to the RS: None • Voluntary Agreements with the ICC: None

Status of Implementation of the Rome Statute None.

On the basis of the Commonwealth Secretariat’s Model Law, the Cook Islands has developed an ICC Bill with the help of the Commonwealth Secretariat.

18 The International Committee of the Cross (ICRC) has provided comment on the Bill in an attempt to make it a better fit for the situation of the Cook Islands. However, no development has been known.

Background PGA Member Mr. Wilkie Rasmussen, MP, former Minister of Foreign Affairs, as the then co-President of the ACP-EU parliamentary Assembly, concretized the ratification of the ICC within 3 months after attending the 15th session of the Africa-Caribbean-Pacific— European Union Joint Parliamentary Assembly on the ICC organized in Slovenia on 17 March 2008. The session on the ICC was initiated by the PGA member from the European Parliament, Mr. Jo Leinen, MEP. The ICC-OTP and PGA addressed the session.

Potential obstacles towards full implementation of the RS During the ICC Pacific Outreach Roundtable (held in Sydney, Australia, in 2012), it was concluded that the Cook Islands’ difficultly was the absence of a legislative drafter, although the New Zealand Parliamentary Counsel’s Office has dedicated one of their staff to the Cook Islands, Niue and for three years.

In her capacity as Acting Solicitor-General, Ms Catherine Evans, identified 30 draft bills and has attempted to have government prioritise and finalise them for submission to Cabinet. The challenge in that period was to have priority accorded to the ICC Bill, as it was one of many waiting for the legislature’s consideration. The assessment in 2012 was that this process might move forward in the year or two that followed. Furthermore, the absence of the legislative programme in the Cook Islands has proved to pose a difficulty to be precise with timing- e.g. in 2010, there were only eight sitting days in parliament. Sitting days have not been notified in advance.

PGA Activities PGA has been actively engaged in promoting political will in The Cook Islands to accede to the Rome Statute of the ICC. The organization held a Regional Workshop on Good Governance and the Rule of Law in Samoa in March 2008 which included a specific panel on ICC Implementation in the Pacific Island States and challenges currently being faced. The then Speaker of the Parliament of the Cook Island, Mr. Mapu Taia participated in this PGA Regional Seminar.

Recommendations • Inquire about the current status of the RS implementation process • Encourage ratification of Kampala Amendments

19 • Offer capacity-building/technical assistance to facilitate progress towards implementation and inquire as to what specific activities or forms of assistance would be most important to set the implementation procedures in motion • Encourage accession to the APIC

K. Fiji

Government type: PGA members: 18 Objectives: • Implementation of the Rome Statute provisions on cooperation with the ICC • Ratification of Kampala Amendments • Signing of Voluntary agreements on cooperation with the ICC

Status • Rome Statute: Ratified on 29 November 1999 • APIC: Not signed or acceded • BNSA: Executive Agreement; Signed and entered into force 17 December 2003 • Amendments to the RS: None

Status of Implementation of the Rome Statute • Complementarity: Enacted, but incomplete (Crimes Decree 44/2009) It incorporates the crimes of genocide and crimes against humanity into Fijian law. It empowers the Fijian to try any person in Fiji who is accused of such crimes, whether or not such crimes were committed in Fiji or had any effect in Fiji. o Missing provisions: War crimes (partially covered by the Geneva Conventions Promulgation of 2007, amended in 2009) and general principles

• Cooperation: None

Background ASP During the most recent statement during the 9th ASP session, the representative of Fiji, highlighted the importance of the outcome of the Review Conference in Kampala and called upon need for action on the declarations made, saying that “the momentum gained in Kampala gives hope to the positive development of international criminal law in combating impunity aid attaining justice and peace.”. He continues by stating that it was “essential to

20 fully implement the commitments regarding cooperation, complementarity and concern for the suffering of the victims and affected communities”.

UPR During the 2nd cycle of UPR review in 2014 (20th UPR sessions), Fiji accepted recommendations to fully align its national legislation with the Rome Statute of the International Criminal Court and ratify the Agreement on Privileges and Immunities of the Court.

Potential obstacles towards full implementation of the Rome Statute and ratification of the Kampala Amendments The Executive Agreement on non-surrender concluded with the US could be a hindrance towards further implementation of provisions on cooperation with the ICC and ratification of the Kampala Amendments.

Recommendations • Inquire about the current status of the implementation process on cooperation with the ICC and propose further amendments to criminal code to fully align its domestic legislation with the RS (all crimes and general principles) • Offer capacity-building/technical assistance to facilitate progress towards implementation and inquire as to what specific activities or forms of assistance would be most important to set the implementation procedures in motion. • Inquire about the political willingness to ratify the Kampala Amendments and signature of voluntary agreements on cooperation with the ICC • Encourage accession to the APIC

L. The Marshall Islands

Government type: Presidential republic in free association with the US PGA members: 0 Objectives: • Implementation of the Rome Statute provisions • Ratification of Kampala Amendments • Accession to APIC • Signing of Voluntary agreements on cooperation with the ICC

21 Status • Rome Statute: Ratified on 07 December 2000 • BNSA: Signed 10 September 2002; entered into force 26 June 2003 • APIC: Not signed or acceded • Amendments to the RS: None

Status of Implementation of the Rome Statute None.

Background During the 22nd UPR session (May 2015), Marshall Islands accepted the recommendation to “take steps to ratify the amendments to article 8 of the Rome Statute of the International Criminal Court”.

Potential obstacles towards full implementation of the Rome Statute During the ICC Pacific Outreach Roundtable, the Marshall Islands indicated that constraints in the form of a lack of funding and human resources have prevented the development of domestic legislation to date. It is customary for the Marshall Islands to ratify treaties without developing implementing legislation for this reason.

The representative of the Marshall Islands has been tasked to review the Marshall Islands’ commitment to all conventions ratified to date in order to advise the Government what has been done, what needs to be done and what should be done. There was a possibility of commencing the drafting process. However, due to lack of human resources, Marshall Islands would need assistance to address this gap.

Recommendations • Inquire about the current status of the implementation process • Offer capacity-building/technical assistance to facilitate progress towards implementation and inquire as to what specific activities or forms of assistance would be most important to set the implementation procedures in motion. • Inquire about the political willingness to ratify the Kampala Amendments and sign voluntary agreements on cooperation with the ICC

M. Nauru

Government type: Parliamentary republic PGA members: 0

22 Objectives: • Implementation of the Rome Statute • Ratification of Kampala Amendments • Accession to APIC • Signing of Voluntary agreements on cooperation with the ICC

Status • Rome Statute: Ratified on 12 November 2001 • APIC: Not signed or acceded • BNSA: Signed on 26 February 2003. Entered into force on 4 December 2003 • Amendments to the RS: None • Voluntary Agreements with the ICC: None

Status of Implementation of the Rome Statute None.

Potential obstacles towards implementation of the Rome Statute and ratification of Kampala Amendments Rather than a lack of political will, the fundamental impediment towards ratification of the Kampala Amendments or full implementation of the RS appears to be a lack of capacity.

Another political issue that has begun to surface as a potential crime against humanity is the controversy regarding the plight of refugees and migrant workers in Australian detention centers on Nauru.

In February 2017, the Global Legal Action Network and the Stanford International Human Rights Clinic submitted a 108-page dossier to the ICC calling for an investigation into possible “crimes against humanity committed by individual and corporate actors.”

The primary target of this investigation would more likely fall on Australian nationals; however, given Nauru’s dependence on Australia and the quid pro quo status of the detention center vis-a-vis aid, Nauru is likely to oppose such an action Nauru nationals may fall into the category of complicit or accessory perpetrators. All of these circumstances could jeopardize further action on the RS system, such as ratification of the Kampala Amendments.

23 Background

As noted above regarding lack of human resources being one the obstacles towards further action, the main barrier was identified the onerous reporting requirement — unsurprising for a country of approximately 10.300 inhabitants5. To address these issues, the UN and other IGOs/NGOs have led several capacity building workshops throughout the region (Nauru, Solomon Islands, etc). However, as helpful as these may be, workshops alone cannot compensate for a dearth of human resources to keep up with international commitments.

Recommendations • Inquire about the current status of the implementation process • Offer capacity-building/technical assistance to facilitate progress towards implementation and inquire as to what specific activities or forms of assistance would be most important to set the implementation procedures in motion. • Inquire about the political willingness to ratify the Kampala Amendments and signature of voluntary agreements on cooperation with the ICC

N. New Zealand

Government type: Parliamentary democracy PGA members: 11 Potential objectives • Ratification of Kampala Amendments • Signing of Voluntary agreements on cooperation with the ICC

Status • Rome Statute: Ratified on 07 September 2000 • APIC: Ratified on 14 April 2004 • BNSA: None • Amendments to the RS: None • Voluntary Agreements with the ICC: None

Status of Implementation of the Rome Statute • Complementarity: Enacted (ICC Act - 01 October 2000)

5 http://www.worldometers.info/world-population/nauru-population/

24 o The Act incorporates the crimes contained in the Rome Statute (referring to the Rome Statute for the definition of the crimes). Request from A-G required to proceed with prosecutions. o The ICC Act establishes universal jurisdiction over the core crimes contained in the Rome Statute, with the effect that proceedings may be brought in relation to conduct regardless of the location of the crime or the nationality of the offender. The person need not even be present in New Zealand when proceedings are initiated (although in absentia trials are not permitted under New Zealand law). Territorial and nationality jurisdiction are retained only for offences against the administration of justice. o It includes provision which enable the ICC to sit in New Zealand for the purpose of performing its functions under the Statute and under the Rules for the purpose of (a) taking evidence; or (b) conducting or continuing a proceeding; or (c) giving judgment in a proceeding; or (d) reviewing a sentence.

• Cooperation: Enacted (ICC Act - 01 October 2000) o Central authority: Minister of Justice (for arrests and surrenders) or Attorney General (Art. 24 of the ICC Act and following) o The ICC Act creates a sui generis regime to govern cooperation with the ICC, rather than opting to rely on existing procedures. Whilst the ICC Act expressly states that the official capacity of a person is no bar to cooperation with the ICC, there is no similar provision to extend this to domestic proceedings. The fair trial standards found in the Rome Statute are not transferred into the ICC Act. The legislation explicitly allows for the facilitation of requests from defendants appearing before the ICC.

Activities of PGA Members PGA Member Dr Kennedy Graham, MP submitted a Private Member’s Bill on 26 June 2012 on International Non-Aggression and the Lawful Use of Force (Implementation of Amendment to the Statute of Rome) to ratify Kampala Amendments. The bill has been under ballot as of 20 December 2012. A 2013 Foreign Affairs, Defence and select committee report recommended the government give priority to New Zealand becoming one of the 30 founding states needed to implement it. However, no further development has been made in this regard.

25 Recommendations • Encourage ratification of Kampala Amendments. The following steps are required in the treaty making process before New Zealand becomes bound by the amendments to the Rome Statute.6 o Obtaining Cabinet approval o Parliamentary treaty examination o The making of implementing legislation or regulations o Submitting an instrument of ratification notifying completion of domestic requirements for entry into force o Any requirements for the ratification/accession of a minimum number of states and vote on activation of jurisdiction on the crime of aggression before the amendments enter into force. • Engage the authorities of New Zealand to initiate accession process of the Asia Pacific countries, in particular Niue since all Niue’s citizens are automatically citizens of New Zealand • Initiate negotiations on signing voluntary agreements on cooperation with the ICC

O. Samoa

Government type: Parliamentary republic PGA Members: 2 Objectives: • Implementation of Kampala Amendments into domestic legal framework • Signing voluntary agreements on cooperation with the ICC

Status • Rome Statute: Ratified on 16 September 2002 • APIC: Acceded on 08 April 2016 • BNSA: Publicly rejected BNSA Agreement with the USA • Amendments to the RS: Ratified both Kampala Amendments on 25 September 2012 • Voluntary Agreements with the ICC: None

Status of Implementation of the Rome Statute • Complementarity– Enacted (International Criminal Court Act No. 26 of 2007 and ICC Amendments Act of 2014)

6The Ministry of Foreign Affairs and Trade, http://www.treaties.mfat.govt.nz/search/details/p/60/2250

26 o Implements crimes (referring to the Rome Statute for the definition of the crimes) and principles, including the irrelevance of official capacity and rejection of the superior orders defense and lays out penalties for crimes against the administration of justice. Attorney General’s consent is required for prosecutions of the core Rome Statute crimes. o The ICC Act does not include all forms of individual criminal responsibility for crimes, covering only individual direct commission of the crimes. The cooperation regime is extensively developed, often referring to the ICC Rules of Procedure and Evidence as support, although every request requires approval by the Minister of Justice. The ICC Act contains detailed provisions to cover the eventuality of the ICC sitting in Samoa and provisions regulating the repatriation of ICC prisoners who have served their sentence in Samoa.7

• Cooperation– Enacted (International Criminal Court Act No. 26 of 2007) o Central authority: Minister of Justice

Background Samoa became one of the first States Parties to the Rome Statute, ratifying in September 2002 and took a leading role in the negotiations in Rome and the subsequent negotiations leading to the adoption of the Kampala Amendments. Samoan national was a at the ICC from 2003 to 2006. Samoa has also been an active participant in the work of the Assembly of States Parties, serving on the Bureau continuously since 2005.8

On 17 and 18 March 2008, PGA organised a Regional Workshop in Apia, Samoa, on "Enhancing Good Governance and the Rule of Law in the Pacific Islands- The Role of Parliamentarians". The event was attended by 18 legislators from the Cook Islands, the Federated States of Micronesia, Kiribati, Niue, Samoa, Tonga, Tuvalu, in addition to MPs from New Zealand and Sweden as well as other international personalities. Different participants offered their views on the ICC and the assistance needed to enable ratification/implementation generally of the Rome Statute in the countries of the region.

7 Extracted from Cooperation and Judicial Assistance Database, available at: https://cjad.nottingham.ac.uk/en/state/114/ 8 “Samoa ratifies amendments on the crime of aggression and article 8”, ICC website, 27 September 2012, available at: https://www.icc-cpi.int/Pages/item.aspx?name=pr838

27 The government representative who attended the February 2012 ICC Pacific Outreach Roundtable in Sydney, Australia, stated that implementing the Kampala amendments into domestic legislation was one of Samoa’s priorities.

Samoa is the only Pacific Island Country to have both ratified the Rome Statute and fully adopted implementing legislation. During the 2012 Roundtable in Sydney, the representative of Samoa indicated that his country is able to assist Pacific colleagues with implementing legislation if assistance is needed. It was noted that Samoa has one of the largest drafting teams in the region (a team of 14).

ASP The most recent ASP statement by Samoa was delivered during the 14th ASP in 2015, in which the representative of Samoa: • Referred to an event Samoa co-hosted in September 2015 in the margins of the 70th Session of the UN General Assembly on the Kampala Amendments to the RS. The representative of Samoa commended Liechtenstein for its leadership role in striving to reach the required number of States Parties for the activation of the ICC`s jurisdiction on the Crime of Aggression in 2017. • Encouraged the ICC and the ASP President to consider conducting outreach activities in the Asia-Pacific region which might lead to: 1. Fostering of a better understanding and appreciation amongst the small island developing nations of the pertinent role of the ICC; 2. Assistance in the form of capacity building to help countries in domesticating the RS into their national laws; and 3. Promoting the importance of the universality of the RS in the region.

Bilateral relations with the US: According to the information available in 2006, the of Samoa, Mr. Tuilaepa Lupesoliai Neioti Aiono Sailele Malielegaoi (who is also the Prime Minister of Samoa and has been at the Office been since 1998) reportedly announced that Samoa would not sign a BNSA with the US. On 1 July 2003, Samoa was declared by the US State Dept. ineligible to receive military assistance.

Recommendations • Follow up on the statement made during the 2012 ICC Pacific Outreach Roundtable and 14th ASP session and inquire about the status of implementation of Kampala Amendments and offer technical assistance with drafting the relevant legislation • Initiate negotiations on signing voluntary agreements on cooperation with the ICC

28 • Encourage Samoa to take a leadership role in promoting implementation in the Asia Pacific region and share its experience to contribute to overcoming obstacles that other countries might encounter. For instance, Samoa had indicated that the most difficult issue encountered was the immunity from prosecution enjoyed by Samoa’s . The solution, developed in consultation with the Head of State, was to remove the immunity in relation to the Rome Statute crimes only. This could serve as an inspiration for drafting processed in other States in the region.

P. Vanuatu

Government type: Parliamentary republic PGA Members: 1 Objectives: • Implementation of the Rome Statute • Accession to APIC • Ratification of Kampala Amendments

Status Rome Statute: Acceded on 02 Dec 2011 APIC: Not signed or acceded BNSA: None Amendments to RS: None Voluntary Agreements with the ICC: None

Status of Implementation of the Rome Statute None.

Background At the Pacific Outreach Round Table in Sydney, on 16 February 2012, Ms Jenny Tevi (Senior Desk Officer, Treaties and Conventions Division, Department of Foreign Affairs, Vanuatu) indicated that its legislative drafting process would start by the preparation of a policy paper seeking approval from the Council of Ministers to commence the preparation of implementing legislation. The Legal Drafting Unit would then be provided with drafting instructions and would commence work on draft legislation. She further stated that Vanuatu would appreciate assistance with the drafting process.

29 ASP Vanuatu attended the ASP for the first time in 2016. The Minister of Justice and Community Services, Ronald K Wasal, delivered a statement in which he expressed the support for the ICC and encouraged extension of the ICC`s outreach to the Asia-Pacific Islands, in particular to those that are not yet State parties to the RS.

N.B.: It must be noted that the Vanuatu’s accession process was triggered by a PGA Member who attended the April 2011 Regional Seminar on universality and effectiveness of the RS system that PGA organized in the Parliament of , with the key-note speech of ICC President Judge Song. This PGA Member was identified by the PGA NZ Group Members who are part of the Green Parties’ International. The Green Party was in Government in Vanuatu during 2011.

Potential obstacles towards full implementation of the Rome Statute and ratification of the Kampala Amendments As identified in the other Pacific Islands States, the fundamental impediment towards full implementation of the RS or ratification of the Kampala Amendments might be a lack of capacity to draft the legislation. Vanuatu has expressed on several occasion its eagerness to further the process of implementation of the RS, but explicitly asked for assistance with the drafting process.

Recommendations • Stress the importance of the implementation process and working towards a fixed timeline to achieve Vanuatu’s full and effective implementation of the provisions of the Rome Statute into national legislation. • Offer capacity-building/technical assistance to facilitate progress towards full implementation of the RS • Inquire about political willingness to ratify the Kampala Amendments as well as accede to APIC

This document has been prepared by the PGA ILHR Team. For more information on PGA’s work in the Asia-Pacific Islands please contact the PGA Senior Programme Officer, Ms. Leyla Nikjou, at [email protected]

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