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Negotiated Relationship Agreement between the International Criminal Court and the United Nations, 4th October 2004 (2283 UNTS 195), OXIO 55

International Criminal Court [ICC]; United Nations [UN]

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 19 December 2018

Core Issues

1. How the relationship between the UN and the ICC would be institutionalised.

2. The scope of cooperation on matters of mutual interest between the UN and ICC.

This headnote pertains to: Negotiated Relationship Agreement between the International Criminal Court and the United Nations, a treaty to which an international organization is a party. Jump to full text

Background

The Act under review is the Negotiated Relationship Agreement (Agreement) between the International Criminal Court (ICC) and the United Nations (UN). The Agreement defines and regulates the nature of the relationship between the organizations and establishes the legal foundation for their cooperation within their respective mandates. Cooperation between the organizations pertains to functional matters as well as matters germane to the nature of the ICC as a judicial institution. Other aspects of the relationship between these organizations are dealt with in the Rome Statute of the International Criminal Court (Rome Statute).

The development of a structural link between these organizations was foreseen by Article 2 of the Rome Statute which, although not obligatory, envisioned that the ICC be brought into relationship with the UN through an agreement to be approved by the Assembly of State Parties (State Parties), and thereafter concluded by the President of the ICC on its behalf. The nature of the envisioned relationship being undefined, issues arose as to whether the ICC would constitute a judicial organ of the UN or an independent judicial institution within the UN system.

Prior to the entry into force of the Rome Statute, the Rome Diplomatic Conference appointed a Preparatory Commission (Commission) which tasked the UN Secretariat with the preparation of an initial draft. The Commission discussed the draft Agreement at its sixth, seventh, and eight sessions, finally adopting the draft Agreement by consensus at its eighth session on 5 October 2001. Following the entry into force of the Rome Statute on 1 July 2002, the State Parties approved the draft Agreement at its first session on 9 September 2002.

The draft Agreement served as the basis for negotiations held on 26–27 February 2004 and 20–21 May 2004. The heads of delegation of the ICC and UN initialled a final draft of the Agreement on 7 June 2004 in The Hague. The Agreement was then approved by the State Parties in The Hague on 7 September 2004—who authorized the provisional entry into force of the Agreement—, and by UN General Assembly (GA) at the close of its fifty-eighth session on 13 September 2004.

Summary

The final Agreement consisted of a preamble and twenty-three articles divided into four sections entitled General Provisions (Articles 1–3), Institutional Relations (Articles 4–14), Cooperation and Judicial Assistance (Articles 15–20), and Final Provisions (Articles 21–23).

Preference that the ICC exist independently of the UN is evidenced in the Agreement. Despite this, the ICC is part of an international system where the UN is at the centre and therefore some coordination is necessary. Whilst the Agreement establishes a structural link between the ICC and UN, the ICC—as established by a multilateral treaty—remains an independent judicial institution. [Arts 1–2] Consequently, no hierarchical relationship is established. In providing for reciprocal representation, the right of the UN to attend public hearings of the ICC is affirmed. Comparatively, rights are granted to the ICC to participate in the GA as an observer whenever matter matters of interest to the ICC are under discussion. [Art 4]

Pursuant to the Agreement, the ICC and UN recognised each other’s mandates and agreed to cooperate on matters of mutual interest. [ref 1] Matters of mutual interest include those functional in nature as well as those germane to the nature of the ICC as a judicial institution. [Arts 15–20] The Agreement established a framework for cooperation between the UN and ICC Prosecutor and authorised entry into necessary supplementary agreements to facilitate such cooperation. [Art 18] Furthermore, the Agreement formalised the process by which Security Council (SC) referrals and requests for deferral are transmitted to the ICC and conversely the manner in which the ICC may inform the SC of the failure of states to cooperate with its requests. [Art 17] In addition, the Agreement institutes a mechanism by which confidentiality obligations may be waived to facilitate the giving of testimony by officials of the UN as well as appointment by the UN of a representative to ‘assist any official of the UN who appears as a witness before the Court’. [Art 16] Provisions on functional matters include, inter alia, the exchange of representatives, information, and documentation, the possibility of the ICC to propose agenda points for the GA, administrative cooperation, provision of facilities, and the use of the UN laissez passer as a valid travel document by some ICC officials.

Analysis

With respect to the two core issues addressed by the Agreement, the Agreement clarifies the nature of the institutional relations between the ICC and UN as being one of cooperation in respect to judicial matters germane to the role of the ICC and other ancillary functional matters between both international organizations. However, as regards scope of cooperation on matters of mutual interest, the practical operation of provisions pertaining to judicial assistance of the UN with activities of the ICC remain vague—such as the provision of assistance by a representative of the UN to a UN official testifying before the ICC—, and are subject to further elaboration through subsequent agreement. In particular, the relationship between the UN and the Prosecutor of the ICC is subject to further elaboration through agreement.

Impact

Pursuant to Article 4 (2) and 4 (3) of the Agreement, the ICC has participated as an observer and Presidents of the ICC have addressed the SC.

As a result of the referrals under United Nations Security Council Resolution 1593 (2005) on referring the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court, and United Nations Security Council Resolution 1970 (2011) on the establishment of a Security Council Committee to monitor implementation of the arms embargo against the Libyan Arab Jamahiriya, there have been twenty-two referrals and ten reports to the UN SC on the situation in Darfur, Sudan, and Libya respectively, pursuant to Article 17 (1) of the Agreement. With respect to Article 17 (3), the ICC has referred Sudan’s non-cooperation to the UN SC. As per Article 6, the ICC has submitted annual reports of its activities to the UN GA.

Reporter(s): Amy Dunne

Source text

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Preamble

The International Criminal Court and the United Nations,

Bearing in mind the Purposes and Principles of the Charter of the United Nations,

Recalling that the Rome Statute of the International Criminal Court reaffirms the Purposes and Principles of the Charter of the United Nations,

Noting the important role assigned to the International Criminal Court in dealing with the most serious crimes of concern to the international community as a whole, as referred to in the Rome Statute, and which threaten the peace, security and well-being of the world,

Bearing in mind that, in accordance with the Rome Statute, the International Criminal Court is established as an independent permanent institution in relationship with the United Nations system,

Recalling also that, in accordance with article 2 of the Rome Statute, the International Criminal Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of the States Parties to the Rome Statute and thereafter concluded by the President of the Court on its behalf,

Recalling further General Assembly resolution 58/79 of 9 December 2003 calling for the conclusion of a relationship agreement between the United Nations and the International Criminal Court,

Noting the responsibilities of the Secretary-General of the United Nations under the provisions of the Rome Statute of the International Criminal Court,

Desiring to make provision for a mutually beneficial relationship whereby the discharge of respective responsibilities of the United Nations and the International Criminal Court may be facilitated,

Taking into account for this purpose the provisions of the Charter of the United Nations and the provisions of the Rome Statute of the International Criminal Court,

Have agreed as follows:

I.  General provisions

Article 1  Purpose of the Agreement

1.  The present Agreement, which is entered into by the United Nations and the International Criminal Court (“the Court”), pursuant to the provisions of the Charter of the United Nations (“the Charter”) and the Rome Statute of the International Criminal Court (“the Statute”), respectively, defines the terms on which the United Nations and the Court shall be brought into relationship.

2.  For the purposes of this Agreement, “the Court” shall also include the Secretariat of the Assembly of States Parties.

Article 2 Principles 

1.  The United Nations recognizes the Court as an independent permanent judicial institution which, in accordance with articles 1 and 4 of the Statute, has international legal personality and such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.

2.  The Court recognizes the responsibilities of the United Nations under the Charter.

3.  The United Nations and the Court respect each other’s status and mandate.

Article 3  Obligation of cooperation and coordination

The United Nations and the Court agree that, with a view to facilitating the effective discharge of their respective responsibilities, they shall cooperate closely, whenever appropriate, with each other and consult each other on matters of mutual interest pursuant to the provisions of the present Agreement and in conformity with the respective provisions of the Charter and the Statute.

II.  Institutional relations

Article 4  Reciprocal representation

1.  Subject to the applicable provisions of the Rules of Procedure and Evidence of the Court (“the Rules of Procedure and Evidence”), the Secretary-General of the United Nations (“the Secretary-General”) or his/her representative shall have a standing invitation to attend public hearings of the Chambers of the Court that relate to cases of interest to the United Nations and any public meetings of the Court.

2.  The Court may attend and participate in the work of the General Assembly of the United Nations in the capacity of observer. The United Nations shall, subject to the rules and practice of the bodies concerned, invite the Court to attend meetings and conferences convened under the auspices of the United Nations where observers are allowed and whenever matters of interest to the Court are under discussion.

3.  Whenever the Security Council considers matters related to the activities of the Court, the President of the Court (“the President”) or the Prosecutor of the Court (“the Prosecutor”) may address the Council, at its invitation, in order to give assistance with regard to matters within the jurisdiction of the Court.

Article 5  Exchange of information

1.  Without prejudice to other provisions of the present Agreement concerning the submission of documents and information concerning particular cases before the Court, the United Nations and the Court shall, to the fullest extent possible and practicable, arrange for the exchange of information and documents of mutual interest. In particular:

  1. (a)  The Secretary-General shall:

    1. (i)  Transmit to the Court information on developments related to the Statute which are relevant to the work of the Court, including information on communications received by the Secretary-General in the capacity of depositary of the Statute or depositary of any other agreements which relate to the exercise by the Court of its jurisdiction;

    2. (ii)  Keep the Court informed regarding the implementation of article 123, paragraphs 1 and 2, of the Statute relating to the convening by the Secretary-General of review conferences;

    3. (iii)  In addition to the requirement provided in article 121, paragraph 7, of the Statute, circulate to all States Members of the United Nations or members of specialized agencies or of the International Atomic Energy Agency which are not parties to the Statute the text of any amendment adopted pursuant to article 121 of the Statute;

  2. (b)  The Registrar of the Court (“the Registrar”) shall:

    1. (i)  In accordance with the Statute and the Rules of Procedure and Evidence, provide information and documentation relating to pleadings, oral proceedings, judgements and orders of the Court in cases which may be of interest to the United Nations generally, and particularly in those cases which involve crimes committed against the personnel of the United Nations or that involve the improper use of the flag, insignia or uniform of the United Nations resulting in death or serious personal injury as well as any cases involving the circumstances referred to under article 16, 17, or 18, paragraph 1 or 2, of the present Agreement;

    2. (ii)  Furnish to the United Nations, with the concurrence of the Court and subject to its Statute and rules, any information relating to the work of the Court requested by the International Court of Justice in accordance with its Statute;

2.  The United Nations and the Court shall make every effort to achieve maximum cooperation with a view to avoiding undesirable duplication in the collection, analysis, publication and dissemination of information relating to matters of mutual interest. They shall strive, where appropriate, to combine their efforts to secure the greatest possible usefulness and utilization of such information.

Article 6  Reports to the United Nations

The Court may, if it deems it appropriate, submit reports on its activities to the United Nations through the Secretary-General.

Article 7  Agenda items

The Court may propose items for consideration by the United Nations. In such cases, the Court shall notify the Secretary-General of its proposal and provide any relevant information. The Secretary-General shall, in accordance with his/her authority, bring such item or items to the attention of the General Assembly or the Security Council, and also to any other United Nations organ concerned, including organs of United Nations programmes and funds.

Article 8  Personnel arrangements

1.  The United Nations and the Court agree to consult and cooperate as far as practicable regarding personnel standards, methods and arrangements.

2.  The United Nations and the Court agree to:

  1. (a)  Periodically consult on matters of mutual interest relating to the employment of their officers and staff, including conditions of service, the duration of appointments, classification, salary scale and allowances, retirement and pension rights and staff regulations and rules;

  2. (b)  Cooperate in the temporary interchange of personnel, where appropriate, making due provision for the retention of seniority and pension rights;

  3. (c)  Strive for maximum cooperation in order to achieve the most efficient use of specialized personnel, systems and services.

Article 9  Administrative cooperation

The United Nations and the Court shall consult, from time to time, concerning the most efficient use of facilities, staff and services with a view to avoiding the establishment and operation of overlapping facilities and services. They shall also consult to explore the possibility of establishing common facilities or services in specific areas, with due regard for cost savings.

Article 10  Services and facilities

1.  The United Nations agrees that, upon the request of the Court, it shall, subject to availability, provide on a reimbursable basis, or as otherwise agreed, for the purposes of the Court such facilities and services as may be required, including for the meetings of the Assembly of States Parties (“the Assembly”), its Bureau or subsidiary bodies, including translation and interpretation services, documentation and conference services. When the United Nations is unable to meet the request of the Court, it shall notify the Court accordingly, giving reasonable notice.

2.  The terms and conditions on which any such facilities or services of the United Nations may be provided shall, as appropriate, be the subject of supplementary arrangements.

Article 11  Access to United Nations Headquarters

The United Nations and the Court shall endeavour, subject to their respective rules, to facilitate access by the representatives of all States Parties to the Statute, representatives of the Court and observers in the Assembly, as provided for in article 112, paragraph 1, of the Statute, to United Nations Headquarters when a meeting of the Assembly is to be held. This shall also apply, as appropriate, to meetings of the Bureau or subsidiary bodies.

Article 12  Laissez-passer

The judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the staff/officials of the Office of the Prosecutor and the Registry shall be entitled, in accordance with such special arrangements as may be concluded between the Secretary-General and the Court, to use the laissez-passer of the United Nations as a valid travel document where such use is recognized by States in agreements defining the privileges and immunities of the Court. Staff of “the Registry” includes staff of the Presidency and of the Chambers, pursuant to article 44 of the Statute, and staff of the Secretariat of the Assembly of States Parties, pursuant to paragraph 3 of the Annex of Resolution ICC-ASP/2/Res.3.

Article 13  Financial matters

1.  The United Nations and the Court agree that the conditions under which any funds may be provided to the Court by a decision of the General Assembly of the United Nations pursuant to article 115 of the Statute shall be subject to separate arrangements. The Registrar shall inform the Assembly of the making of such arrangements.

2.  The United Nations and the Court further agree that the costs and expenses resulting from cooperation or the provision of services pursuant to the present Agreement shall be subject to separate arrangements between the United Nations and the Court. The Registrar shall inform the Assembly of the making of such arrangements.

3.  The United Nations may, upon request of the Court and subject to paragraph 2 of this article, provide advice on financial and fiscal questions of interest to the Court.

Article 14  Other agreements concluded by the Court

The United Nations and the Court shall consult, when appropriate, on the registration or filing and recording with the United Nations of agreements concluded by the Court with States or international organizations.

III.  Cooperation and judicial assistance

Article 15  General provisions regarding cooperation between the United Nations and the Court

1.  With due regard to its responsibilities and competence under the Charter and subject to its rules as defined under the applicable international law, the United Nations undertakes to cooperate with the Court and to provide to the Court such information or documents as the Court may request pursuant to article 87, paragraph 6, of the Statute.

2.  The United Nations or its programmes, funds and offices concerned may agree to provide to the Court other forms of cooperation and assistance compatible with the provisions of the Charter and the Statute.

3.  In the event that the disclosure of information or documents or the provision of other forms of cooperation would endanger the safety or security of current or former personnel of the United Nations or otherwise prejudice the security or proper conduct of any operation or activity of the United Nations, the Court may order, particularly at the request of the United Nations, appropriate measures of protection. In the absence of such measures, the United Nations shall endeavour to disclose the information or documents or to provide the requested cooperation, while reserving the right to take its own measures of protection, which may include withholding of some information or documents or their submission in an appropriate form, including the introduction of redactions.

Article 16  Testimony of the officials of the United Nations

1.  If the Court requests the testimony of an official of the United Nations or one of its programmes, funds or offices, the United Nations undertakes to cooperate with the Court and, if necessary and with due regard to its responsibilities and competence under the Charter and the Convention on the Privileges and Immunities of the United Nations and subject to its rules, shall waive that person’s obligation of confidentiality.

2.  The Secretary-General shall be authorized by the Court to appoint a representative of the United Nations to assist any official of the United Nations who appears as a witness before the Court.

Article 17  Cooperation between the Security Council of the United Nations and the Court

1.  When the Security Council, acting under Chapter VII of the Charter of the United Nations, decides to refer to the Prosecutor pursuant to article 13, paragraph (b), of the Statute, a situation in which one or more of the crimes referred to in article 5 of the Statute appears to have been committed, the Secretary-General shall immediately transmit the written decision of the Security Council to the Prosecutor together with documents and other materials that may be pertinent to the decision of the Council. The Court undertakes to keep the Security Council informed in this regard in accordance with the Statute and the Rules of Procedure and Evidence. Such information shall be transmitted through the Secretary-General.

2.  When the Security Council adopts under Chapter VII of the Charter a resolution requesting the Court, pursuant to article 16 of the Statute, not to commence or proceed with an investigation or prosecution, this request shall immediately be transmitted by the Secretary-General to the President of the Court and the Prosecutor. The Court shall inform the Security Council through the Secretary-General of its receipt of the above request and, as appropriate, inform the Security Council through the Secretary-General of actions, if any, taken by the Court in this regard.

3.  Where a matter has been referred to the Court by the Security Council and the Court makes a finding, pursuant to article 87, paragraph 5 (b) or paragraph 7, of the Statute, of a failure by a State to cooperate with the Court, the Court shall inform the Security Council or refer the matter to it, as the case may be, and the Registrar shall convey to the Security Council through the Secretary-General the decision of the Court, together with relevant information in the case. The Security Council, through the Secretary-General, shall inform the Court through the Registrar of action, if any, taken by it under the circumstances.

Article 18  Cooperation between the United Nations and the Prosecutor

1.  With due regard to its responsibilities and competence under the Charter of the United Nations and subject to its rules, the United Nations undertakes to cooperate with the Prosecutor and to enter with the Prosecutor into such arrangements or, as appropriate, agreements as may be necessary to facilitate such cooperation, in particular when the Prosecutor exercises, under article 54 of the Statute, his or her duties and powers with respect to investigation and seeks the cooperation of the United Nations in accordance with that article.

2.  Subject to the rules of the organ concerned, the United Nations undertakes to cooperate in relation to requests from the Prosecutor in providing such additional information as he or she may seek, in accordance with article 15, paragraph 2, of the Statute, from organs of the United Nations in connection with investigations initiated proprio motu by the Prosecutor pursuant to that article. The Prosecutor shall address a request for such information to the Secretary-General, who shall convey it to the presiding officer or other appropriate officer of the organ concerned.

3.  The United Nations and the Prosecutor may agree that the United Nations provide documents or information to the Prosecutor on condition of confidentiality and solely for the purpose of generating new evidence and that such documents or information shall not be disclosed to other organs of the Court or to third parties, at any stage of the proceedings or thereafter, without the consent of the United Nations.

4.  The Prosecutor and the United Nations or its programmes, funds and offices concerned may enter into such arrangements as may be necessary to facilitate their cooperation for the implementation of this article, in particular in order to ensure the confidentiality of information, the protection of any person, including former or current United Nations personnel, and the security or proper conduct of any operation or activity of the United Nations.

Article 19  Rules concerning United Nations privileges and immunities

If the Court seeks to exercise its jurisdiction over a person who is alleged to be criminally responsible for a crime within the jurisdiction of the Court and if, in the circumstances, such person enjoys, according to the Convention on the Privileges and Immunities of the United Nations and the relevant rules of international law, any privileges and immunities as are necessary for the independent exercise of his or her work for the United Nations, the United Nations undertakes to cooperate fully with the Court and to take all necessary measures to allow the Court to exercise its jurisdiction, in particular by waiving any such privileges and immunities in accordance with the Convention on the Privileges and Immunities of the United Nations and the relevant rules of international law.

Article 20  Protection of confidentiality

If the United Nations is requested by the Court to provide information or documentation in its custody, possession or control which was disclosed to it in confidence by a State or an intergovernmental, international or non-governmental organization or an individual, the United Nations shall seek the consent of the originator to disclose that information or documentation or, where appropriate, will inform the Court that it may seek the consent of the originator for the United Nations to disclose that information or documentation. If the originator is a State Party to the Statute and the United Nations fails to obtain its consent to disclosure within a reasonable period of time, the United Nations shall inform the Court accordingly, and the issue of disclosure shall be resolved between the State Party concerned and the Court in accordance with the Statute. If the originator is not a State Party to the Statute and refuses to consent to disclosure, the United Nations shall inform the Court that it is unable to provide the requested information or documentation because of a pre-existing obligation of confidentiality to the originator.

IV.  Final provisions

Article 21  Supplementary arrangements for the implementation of the present Agreement

The Secretary- General and the Court may, for the purpose of implementing the present Agreement, make such supplementary arrangements as may be found appropriate.

Article 22  Amendments

The present Agreement may be amended by agreement between the United Nations and the Court. Any such amendment shall be approved by the General Assembly of the United Nations and by the Assembly in accordance with article 2 of the Statute. The United Nations and the Court shall notify each other in writing of the date of such approval, and the Agreement shall enter into force on the date of the later of the said approvals.

Article 23  Entry into force

The present Agreement shall be approved by the General Assembly of the United Nations and by the Assembly in accordance with article 2 of the Statute. The United Nations and the Court shall notify each other in writing of the date of such approval. The Agreement shall thereafter enter into force upon signature.

In witness thereof, the undersigned have signed the present Agreement.

Signed this _______ day of ___________ at United Nations Headquarters in New York in two copies in all the official languages of the United Nations and the Court, of which the English and French texts shall be authentic.