The host state. Headquarters Agreement

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1 The host state As the host state for the ICC, the Netherlands is intensively involved in the effective establishment of the Court. It has, for example, facilitated the meetings of the Bureau of the Preparatory Commission in the Netherlands, organized an intersessional experts meeting, supported the work of the Advance Team, and organized together with the ICC and the President of the ASP the Inaugural Ceremony for the first judges of the ICC. At the moment, the host state s activities focus on the negotiation of the Headquarters Agreement between the host state and the Court, the provision of the Court s temporary and permanent premises and the support of third states in respect of ratification and implementation of the Statute. The Task Force on the International Criminal Court (TF-ICC) of the Dutch Ministry of Foreign Affairs is in charge of co-ordinating all the Dutch Government s activities in relation to the Court s establishment in The Hague. It is headed by a Director-General (DG ICC) who is directly responsible to the Minister of Foreign Affairs. The Netherlands is well aware of its special responsibilities as the host state for the ICC and is firmly committed to fulfil its responsibilities in an effective and legitimate manner. Headquarters Agreement Like other international organizations based in the Netherlands, the International Criminal Court must conclude a Headquarters Agreement with the host country. The Agreement will lay down the many rules for relations between the Court and the Netherlands, to safeguard its independence and to enable it to do its work properly. Many of the rules are identical in each Headquarters Agreement: these include the rules stating that the organization s premises are inviolable and that the authorities of the host country may not enter them without the express consent of the organization s most senior officials. Other rules relate to the specific duties of the organization concerned. For instance, the Headquarters Agreement concluded for the Yugoslavia Tribunal (ICTY) requires the Netherlands to grant visas to witnesses and experts that are to appear before the Tribunal. More in general, a Headquarters Agreement usually lays down what rules apply on the organization s premises. This does not mean that these premises are no longer Dutch territory, but it does restrict the Netherlands jurisdiction. The Agreement also defines the privileges and immunities of the organization s staff. Pending the entry into force of the permanent Headquarters Agreement, it has been agreed that the provisions of the Headquarters Agreement with the Yugoslavia Tribunal will apply, mutatis mutandis, to the ICC. Now that the Statute of the ICC has entered into effect and the Court s first employees have arrived in The Hague, a legal basis for the ICC s operations must be created as soon as possible. The interim Headquarters Agreement, which was agreed by an exchange of Notes on 19 November 2002, initially applied for six months, and has been extended for twelve months in May Since the exchange of Notes, the Ministry of Foreign Affairs and the ICC have held talks on the permanent Headquarters Agreement. Premises The Netherlands is making premises available to the Court free of charge for a period of ten years (that has started on 1 July 2002). For the time being, the Court will be housed in De Arc on Maanweg in The Hague, until its permanent offices are ready for occupation. The Netherlands has agreed to finance the installation of 100 workspaces in the Court s first year. The permanent premises of the ICC will be located on the grounds of the Alexander barracks in The Hague. Construction work will commence after the land becomes available on 1 January A competition will be held to select the best design for the building, after which the chosen architect will produce detailed plans. According to the current timetable, the premises are

2 expected to be ready by the end of Implementation legislation The Netherlands signed the Rome Statute on 18 July 1998 and ratified it on 17 July In order to fulfil its obligations as a State Party, the Netherlands has implemented the Statute through national legislation. The International Criminal Court (Implementation) Act and the accompanying Amendment Act were both enacted for this purpose. The two Acts were passed on 20 June The Implementation Act entered into force on 1 July 2002, giving the Dutch Government a statutory basis for transferring suspects to the ICC, protecting and guarding them and transporting them to the Court. The Act also makes it possible to furnish the ICC with legal assistance. The ICC Amendment Act entered in force on 8 August Since war crimes and genocide have for many years been defined as criminal offences under Dutch law, persons accused of these crimes could in any case stand trial in the Netherlands. To make it possible to also try persons accused of crimes against humanity in the Netherlands the International Crimes Act was introduced. The adoption of the International Crimes Act on 19 June 2003 brings Dutch criminal law into line with the Statute s requirements, wholly in accordance with the principle of complementarity. The International Crimes Act entered into force on 1 October In respect of the International Crimes Act, a sounding board of external experts, mainly scholars, was created with whom to discuss the legislative intentions. Throughout the entire drafting process, these experts were regularly consulted, sometimes in meetings of the entire group and other times individually on specific aspects within their expertise. A number of individual experts, from among the members of the sounding board and interested organizations, were approached for consultation with regard to the first draft of the Act. Among the organizations consulted were the Netherlands Association for the Administration of Justice, the Public Prosecution Service, the Netherlands Bar, the Netherlands Red Cross, Amnesty International, the Dutch section of the International Committee of Jurists, and the Netherlands International Law Association. Both the Implementation Act and the International Crimes Act have been translated in English. Together with short introductions to both Acts, they are available at the website of the Ministry of Foreign Affairs: (English > Background information > Dutch implementation legislation) Agreement on the Privileges and Immunities (APIC) On 11 September 2003, the Netherlands became the 35th country to sign, in New York, the Agreement on the Privileges and Immunities of the International Criminal Court. The agreement was adopted on 9 September 2002, at the first session of the Assembly of States Parties to the ICC s Rome Statute. It has now been signed by nearly 40 states, including almost all the member states of the European Union. Two states have already ratified the agreement, which will enter into force when it has been ratified by 10 countries.

3 H.E. Mr. Dirk-Jan van den Berg, Permanent Representative of the Netherlands to the UN, signs the Agreement The privileges and immunities agreement is distinct from the headquarters agreement which is currently being negotiated between the Netherlands and the ICC. This bilateral headquarters agreement will include more detailed provisions on matters of particular relevance to the relations between the host country and the ICC. It will not enter into force until negotiations are complete and both the Dutch parliament and the ASP have approved the resulting text. Mr. Harry Verweij (Deputy Head of the ICC Task Force), Mr. Carl Peersman (6 th Committee Representative), H.E. Mr. Dirk- Jan van den Berg, Mr. Edmond Wellenstein (Director General and Head of the ICC Task Force) and Ms Mascha Matthews. Support of third states In the past, the Netherlands has supported numerous initiatives to promote the ratification and implementation of the Statute of the International Criminal Court. Although the Statute has been signed by 139 countries, and ratified by 92 countries, there are still many states that have not ratified it, mainly in Southeast Asia, Africa, the Middle East and Central America. What is more, most of the countries that have ratified the Statute have not yet introduced national implementing legislation.

4 As universal acceptance is of crucial importance to the legitimacy of the Court, the Netherlands believes that a long-term campaign to achieve ratification and implementation of the Statute by as many countries as possible remains needed. In accordance with Dutch Government policy, the EU Common Position and the EU Action Plan, the Netherlands will continue its efforts to achieve the widest possible ratification, acceptance, approval or accession to the Statute, as well as the broadest possible implementation of its provisions. In addition, the Netherlands has stepped up these efforts in Objectives Dutch objectives with regard to ICC support policy are threefold: First, the Netherlands wants to see the number of States Parties grow to over 100 in To be effective, the ICC has to have universal acceptance. Although the Statute has been ratified by a substantial number of countries, many others are either still in the process of ratification or have not even begun. Second, the Netherlands is directing its efforts towards achieving the rapid implementation of the Statute by the largest possible number of States Parties. What ultimately matters is the implementation of the Statute s provisions in national legislation. Only then can the principle of complementarity have any significance. The third objective is to make the ICC effective. This general objective complements the first two, which refer specifically to the process of ratification and implementation by third countries. As host country, the Netherlands bears a special responsibility for the effective functioning of the Court. Much preparatory work has already been done, but there are still many issues that have to be settled. Strategy Although support policy with regard to the ICC is multidimensional and its constituent parts cannot be seen in isolation, three broad components may be distinguished. Financial support The financial support in question is given to states and non-governmental organizations (NGOs). In practice this kind of support will largely consist of support for activities organized by NGOs in this area. Financial support will where possible be accompanied by technical and political support. Technical support Technical support takes the form of a transfer of knowledge effected by experts in the field of ratification and implementation of the Statute, either on the spot (in the relevant country or region), or in the Netherlands. It will largely be concerned with the institutionalisation of specific knowledge about the ICC at national level in order to increase participation by third countries in the ICC process. Technical assistance too will often be accompanied by financial and political support. The Netherlands has actively contributed to legislative work for the ratification and implementation of the Statute in third countries. Representatives of the ministries of Foreign Affairs and Justice have assisted, inter alia, Jordan (seminar), Andorra (written advice on the framework of the Andorran transposition law for the ICC), Laos, Turkey and Japan (exploratory talks). The Netherlands has also been supportive of regional initiatives in this regard, such as the Follow Up Experts Meeting on the ICC held in Cambodia and the Regional Conference on implementation held in Romania. Two recent examples of activities organized by the Netherlands are a seminar in Amman, held on 29 and 30 June 2003, and a round table discussion in Santiago de Chile, held on 10 July The bilateral expert meeting on the ICC in Amman was organized in co-operation with the Embassy of the Hashemite Kingdom of Jordan in The Hague. The seminar was opened by the Minister of Foreign Affairs of Jordan, H.E. Dr. Marwan Muasher and the Netherlands ambassador to Jordan, H.E. Dr. Marjanne de Kwaasteniet. The Dutch delegation consisted of members of the ICC Task Force of the Netherlands, an expert from the Netherlands Ministry of Justice and a

5 former parliamentarian. The meetings were attended by some 50 Jordanian officials from the Ministry of Foreign Affairs, Justice, the Interior and Defense, judges, lawyers, professors and NGO's. Among the topics on the agenda were complementarity, the definition of crimes of the Statute, State Cooperation with the ICC, and the implementation of the Rome Statute in national legislation. The Netherlands Embassy in Santiago de Chile, in close co-operation with the ICC Task Force of the Netherlands Ministry of Foreign Affairs, organized a round table discussion on the International Criminal Court in Santiago de Chile. Among the participants were the Presidents of both the Chamber of Deputies and the Senate, the Presidents of the Parliamentarian Committees for Foreign Affairs and Justice, and several deputies, senators, senior government officials as well as high ranked military officials. Among the speakers delegated by the Netherlands were H.E. Mrs Harding Clark (ICC Judge), Mrs Fernandez de Gurmendi (Chief of Cabinet in the Office of the ICC Prosecutor and Head of the Complementarity Unit), Mr Bos (former Legal Counsel to the Dutch Minister of Foreign Affairs and former Chair of the Ad Hoc Committee and Preparatory Committee for the ICC) and Lieutenant-Colonel Van Gorp (military judge). Topics discussed included complementarity (the role of national courts vis-à-vis the ICC), the position of the UN Security Council, the role of victims and the rights of defendants, and, notably, the position of Chile towards the ICC (the judgement of the Chilean Constitutional Court). The delegation also had meetings with the Vice President of Chile and the President of the Constitutional Court. Political support This is support to states and the ICC through political dialogue in the context of the EU, through bilateral demarches and statements, and through interventions in the UN and other multilateral fora. The support is intended to help states with the ratification and implementation process and to prevent the Court s effectiveness from being eroded or the Statute s integrity being undermined. In this connection, the Dutch Government, the EU Presidency or third countries will make demarches based on considerations established in the EU working group of ICC experts. As a State Party, the Netherlands, together with its EU partners, has been very active in carrying out demarches in respect of the US proposed bilateral non surrender agreements. In addition, the Netherlands, fully concurring with the EU declaration, made a statement on the proposed renewal of UNSC resolution 1422 (now 1487). Criteria Activities must contribute in policy terms to achieving the objectives of Dutch support policy. The main criteria state that the activity or organization must: - specifically target parties and/or actions directly related to the ratification process; - make a specific and targeted contribution to the implementation of the ICC Statute by the States Parties; - contribute in more general terms to the effective functioning of the ICC and the universal acceptance of the principles set out in the Statute. Co-ordination The Netherlands is not the only country working towards the effective establishment of the ICC and the ratification/implementation of the Statute by third countries. The Netherlands will maintain contact with EU and other partners and work closely with them on this issue to prevent overlapping and to promote synergy. In practice, most initiatives will be developed by NGOs and similar organizations. The Netherlands will therefore maintain ongoing contact with the NGO community as a major partner in achieving policy objectives. The Netherlands will remain prepared to support NGO initiatives. For further information, please contact the Task Force ICC of the Ministry of Foreign Affairs: icc-tf@minbuza.nl Website:

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