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E'MA PROGRAM ON DEMOCRATIZATION AND HUMAN RIGHTS May 7th8th 2007

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Title: E'MA PROGRAM ON DEMOCRATIZATION AND HUMAN RIGHTS May 7th8th 2007


1
E.MA PROGRAM ON DEMOCRATIZATION AND HUMAN
RIGHTSMay 7th-8th 2007 
2
GLOBAL JUSTICE The International Criminal
Court Eulalia W. Petit de Gabriel eulalia_at_us.es
3
Curriculum Vitae
  • 1992, Licenciada, US
  • 1995, Diploma, Center for Studies and Research,
    Hague Academy of International Law
  • 1998, Diploma cum laude, Hague Academy of
    International Law
  • 1999, Ph.D., US

4
ICC cooperation regime
  • Obligation to render cooperation and judicial
    assistance
  • Monday May 7th 07
  • Arts. 86 to 102 ICC Statute ... And more
  • The agreement on privileges and immunities
  • Tuesday May 8th 07
  • 1946 v. 2002 Convention and more

5
Obligation to render cooperation and judicial
assistance
  • 1. Introduction   
  • 2. Cooperating with the Court nature and
    scope    
  • 3. Compliance with the obligation to cooperate
    and guarantees
  • 4. Forms and contents of cooperation
  •              

6
Obligation to render cooperation and judicial
assistance
  • Bibliography
  • Antonio Cassese, Paola Gaeta, John R.W.D. Jones
    (eds.), The Rome Statute of the International
    Criminal Court a commentary, Oxford, Oxford
    University Press, 2002
  • Chapter 39 to 42, pp. 1587-1747

7
INTRODUCTIONThe co-operation models
  • The voluntarist approach or cooperation in an
    horizontal model
  • Treaty based assistance
  • The duty to co-operate in a vertical model
  • The Ad Hoc Tribunals
  • SC Res. based assistance
  • The inter-mixed conception of co-operation
  • The ICC Statute, Part 9,
  • International cooperation and judicial assistance

8
Art. 29 ICTY Statute
  • States shall co-operate with the International
    Tribunal in the investigation and prosecution of
    persons accused of committing serious violations
    of international humanitarian law.
  • States shall comply whitout undue delay with any
    request for assistance or an order issued by a
    Trial Chamber, including, but not limited to
  • The identification and location of persons
  • The taking of testimony and the production of
    evidence
  • The service of documents
  • The arrest or detention of persons
  • The surrender or the transfer of the accused to
    the International Tribunal

9
Art. 86 ICC Statute
  • States parties shall, in accordance with the
    provisions of this Statute, cooperate fully with
    the Court in its investigation and prosecution of
    crimes within the jurisdiction of the Court

10
Just that co-operation?
  • Whose cooperation
  • can be eventually required?
  • States parties
  • States not-party
  • International Organizations
  • Individuals?

11
General source of obligation
  • States Parties
  • States not-party
  • International Organizations
  • Individuals?
  • Arts. 86 87.1 to 87.4
  • Art. 87.5
  • Art. 87.6
  • UN 2004 Negotiated Relationship Agreement, arts-
    15-20
  • ?

12
Specific source of obligation
  • Whose cooperation can be eventually required?
  • States parties
  • States not-party
  • International Organizations
  • Individuals?
  • On which legal base?
  • The Statute as a treaty
  • Declaration under Article 12 (3) accepting ICC
    jurisdiction
  • Ad hoc agreements
  • Other legal basis...such as a SC resolution?

13
May a State exclude anything?Limits of the
obligation
  • No exception for a request for arrest and
    surrender. Art. 89.1
  • Other forms of cooperation can be denied in 4
    cases 3 arise out of the Statute ...

14
  • Art. 93 (3), if the execution of that measure of
    cooperation is prohibited on the basis of an
    existing fundamental legal principle of general
    application and, after consultation with the
    Court, the matter cannot be resolved
  • Art. 72 Art. 93 (4), if the request concerns
    the production of documents or disclosure of
    evidence which relate to its national security
    interests

Art. 93 (1.1), with respect to a request by the
Court for a type of assistence which is not
specified under art. 93.1 a to K, the obligation
is limited to assistance which is not prohibited
by the law of the requested State
15
The 4th is just arrived ...
  • Art. 15.3, 2004 Negotiated Relationship
    Agreement.
  • 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 ...
    Appropriate measures of protection. In the
    absence of such measures ....

16
COMPLIANCE
  • Article 88 ICC St.
  • Availability of procedures under national law
  • States parties shall ensure that there are
    procedures available under their national law for
    all of the forms of cooperation which are
    specified under this part

17
  • And what happens when ...
  • The obligation to cooperate arises outside Part 9?

18
General rules on compliance through national law
  • Vienna Convention on the Law of Treaties, 1969
  • Article 27
  • Internal law and observance of treaties
  • A party may not invoke the provisions of its
    internal law as justification for its failure to
    perform a treaty. This rule is without prejudice
    to article 46

19
General rules on compliance through national law
  • ILCs Articles on State responsibility, 2001
  • Article 32
  • Irrelevance of internal law
  • The responsible State may not rely on its
    internal law as justification to comply with its
    obligation under this Part.

20
  • And what happens when ...
  • The obligation is upon a State not-party or an
    International Organization?
  • ?

21
  • And what happens when ...
  • The State party is not fully cooperating?
  • Non Compliance Regime
  • Art. 87.7 St. Is not a self contained regime.
  • It is a procedural provision

22
NON COMPLIANCE, Art. 87.7
  • Determination of non compliance
  • ICC makes a finding
  • Measures to be taken
  • Art.87.7 St.
  • Deferral to the Assembly of States parties
  • Deferral to the SC
  • General IL on Responsibility States not-party

23
Assembly of States Parties
  • Measures to be taken under general law on
    responsibility
  • Inmmediate cease of the wrongful act
  • Collective countermeasures?
  • Remedies for violation of multilateral treaty
    breaches?

24
Security Council
  • Whenever the matter was referred to the Court by
    the SC, Art. 87.7 St.
  • On matters under different jurisdictional bases,
    whenever the infringement amount to a breach of
    peace or a threat to peace, Art. 39 and fw. UN
    Charter

25
The States parties
  • Remedies for violation of multilateral treaty
    breaches?
  • Remedies for violation of erga omnes obligations?
  • Subsidiary action
  • Countermeasures?
  • ILCs Articles on State Responsibility

26
FORMS AND CONTENTS
  • Arrest and Surrender
  • Other forms of cooperation
  • Evidence
  • Enforcement of Sentences
  • Arts. 89-92 ICC St.
  • Art. 93 Arts. 15 and ff. 2004 Negotiated
    Relationship Agreem.
  • Part 10 Agreements

27
ARREST AND SURRENDER
  • Article 29.2 d) e) ICTY - Article 28.2 d) e)
    ITR
  • Nature of the obligation
  • SC Resolution binding force
  • Limits on extradition do not aply to
    surrender/transfer

28
Traditional limits on extradition
  • The existence of an extradition treaty
  • The double criminality requirement
  • The political and military offence exception
  • Non-extradition of nationals
  • Immunities
  • Protection of fundamental rights
  • Protection against death penalty
  • Non bis in idem

29
Arrest and Transfer Proceedingsin the ICTY
  • Rules of Procedure and Evidence (RPE)
  • The arrest of suspects
  • Rules 40-40 bis Rules 54 60
  • Failure to comply Rule 61

30
Arrest and Surrender Proceedingsin the ICC
  • The powers of the Court to order arrest and
    surrender Articles 58-60 (Part 5)
  • The obligations of States
  • Articles 87-92
  • Articles 101-102
  • But not only, see Article 59

31
Terminology
  • Surrender and extradition are two differnt
    categories for the ICC Estatute
  • Article 102
  • That means ...
  • Exclusion of extradition limits and restrictions

32
Surrender cannot be refused because
  • The non existence of an extradition treaty
  • The double criminality requirement
  • The political and military offence exception
  • Non-extradition of nationals
  • Immunities
  • Protection of fundamental rights
  • Protection against death penalty
  • Non bis in idem

33
Provisional arrest
  • Article 92
  • Urgent cases
  • Pending the presentation of the request for
    surrender and the documents that support it

34
Request for surrender, Art. 91(2)
  • It must include
  • The identification of the person sought
  • The copy of the warrant of arrest
  • The documents, statements or information
    necessary to meet the requirements for the
    surrender process in the requested State
  • (compromise between civil and common law
    traditions on extradition)

35
First Surrender 17 March 06
  • On 17 March 2006, in Kinshasa, Mr Thomas Lubanga
    Dyilo, a Congolese national and alleged founder
    and leader of the Union des Patriotes Congolais
    (UPC) was arrested and transferred to the
    International Criminal Court as part of the
    judicial proceedings under the Rome Statute (the
    Statute).

36
COMPETING REQUESTS Art. 90
  • Request for surrender to ICC
  • competing with
  • a request for extradition to a State

37
COMPETING REQUESTS Art. 90
  • Based on the same Conduct
  • Requested and requesting States are Parties
  • Requesting State being a non-party
  • Based on other Conduct

38
Competing requestbased on same conduct
  • Being the requested State and the requesting
    States parties to the Statute
  • Priority to be done to the request by the ICC in
    2 cases ... And 1 special situation

39
Priority of the ICC request
  • If the ICC has decided on admissibility taking
    into account the investigation conducted by the
    requesting State
  • If the ICC has been notified by the requested
    State and decides on admissibility afterwards
  • If a decission on admissibility is pending,the
    requested State can decide on extradition but not
    execute, until the ICC has decided on admissibiliy

40
Competing requestbased on same conduct
  • Being the requesting State not party no the
    Statute
  • If there is no international obligation to
    extradite, priority must be given to the Courts
    request if the case has been considered
    admissible
  • If there is an international obligation to
    extradite, the decision is up to the requested
    State taking into account the dates of the
    requests, interests of the requesting State, and
    possibilities of surrender between the
    reqquesting State and the ICC.

41
Competing requestbased on other conduct
  • If the requested State is not under an
    international obligation to extradite priority
    to be given to the Court
  • If the requested State is under an obligation to
    extradite the decision is on the requested
    State, on similar criteria than those seen.

42
OTHER FORMS OF COOPERATION
  • In Part 9
  • Evidence
  • Outside Part 9
  • Enforcement of judgements (Part 10)

43
Evidence
  • The ICC takes always evidence abroad when in
    States parties or in non State parties
  • No previous and common set of rules on the matter
    for international tribunals

44
General rules
  • Each State has exclusive power over all
    activities taking place within its territory
  • No State may perform an act in the territory of
    another State without the later States consent
  • Traditional method rogatory letters
  • Treaties on mutual legal assistance judicial
    officials operating in other States territory

45
ICTY ICTR approach
  • Adversarial approach the initial task is on the
    Prosecutor
  • No express rule on the power to conduct
    investigation in the territory of States
  • But, unconditionnal obligation to co-operate has
    been examined by the ICTY

46
ICC aproach
  • The Court must request assistance
  • The execution rely on national authorities
  • There is no closed-list of types of assistance
  • There are 3 grounds for refusal and postponement
    of execution requests (see slide 14)

47
Direct taking of evidence
  • Art. 54-57, exceptional case, authorizes the
    Prosecutor
  • where is necessary for the sucessful execution
    of the request
  • The request can be executed without any
    compulsory measures
  • Conditions in articles 99 (4)

48
Enforcement of Sentences
  • Part 10 enforcement relies on States, as for the
    ICTY sentences
  • First Agreement has been signed with Austria,
    27th October 2005, still not in force, pending
    approval of the Assembly os States Parties

49
Privileges and Immunities
  • What are they?
  • What for?
  • Whose privileges?

50
  • Antonio Cassese, Paola Gaeta, John R.W.D. Jones
    (eds.), The Rome Statute of the International
    Criminal Court a commentary, Oxford, Oxford
    University Press, 2002
  • Chapter 8, pp. 289-295
  • 1946 Convention V. 2002 Convention

51
What are they?
  • Protection
  • against legal pursuits inmunity
  • against misuse of information inviolability
  • Privileges taxes exemption, use of flag, emblem
    markings
  • Facilities commnications, free from currency
    restrictions, etc.

52
What are they for?
  • To preserve the independence and impartiality of
    the Court
  • To contribute to the speediness of the
    proceedings
  • To protect from pressure of governments or
    harassments by private litigators

53
Privileges and Immunities in Public International
Law
  • States customary rules and changes in the
    immunities law
  • International Organizations privileges and
    immunities are treaty based rights

54
Privileges and Immunities in Public International
Law
  • Representatives of States
  • Vienna Convention on Diplomatic Relations, 1961
  • Vienna Convention on Consular Relations, 1963
  • Convention of December 1969, on special missions

55
Privileges and Immunities in Public International
Law
  • Agents of an International Organization
  • Specific agreement with the State where the IO
    is established
  • Special agreement on privileges and immunites
  • - The 1946 UN Convention
  • - The 2002 ICC Convention

56
ICTY ICTR approach
  • Article 30
  • The status, privileges and immunities of the
    International Tribunal
  • 1. The Convention on the Privileges and
    Immunities of the United Nations of 13 February
    1946 shall apply to the International Tribunal,
    the judges, the Prosecutor and his staff, and the
    Registrar and his staff

57
  • 2. The judges, the Prosecutor and the Registrar
    shall enjoy the privileges and immunities,
    exemptions and facilities accorded to diplomatic
    envoys, in accordance with international law.
  • 3. The staff of the prosecutor and the Registrarr
    shall enjoy the prvileges and immunities,
    exemptions and facilities accorded to officials
    of the United Nations under articles V and VII of
    the Convention referred to in paragraph 1 of this
    article.
  • 4. Other persons, including the accused, required
    at the seat of the International Tribunal shall
    be accorded such treatment as is necessary for
    the proper functioning of the International
    Tribunal.

58
Art. 48 ICC Estatute
  • The Court shall enjoy in the territory of each
    State party such privileges and immunities as are
    necessary for the fulfilment of its purposes.

59
2002 Convention
  • Article 2 Legal status and juridical personality
    of the Court
  • Article 3 General provision
  • Article 4 Inviolability of the premises
  • Article 5 Flag, emblem and markings
  • Article 6 Immunity of the Court, its property,
    funds and assets
  • Article 7 Inviolability of archives and
    documents

60
2002 Convention
  • Article 8 Exemption from taxes, customs duties
    abd import or export restrictions
  • Article 9 Reimbursement of duties and/or taxes
  • Article 10 Funds and freedom from currency
    restrictions
  • Article 11 Facilities in respect of
    communications
  • Article 12 Exercise of the functions of the
    Court outside its headquarters

61
Art. 48 ICC Estatute
  • 2. The judges, the Prosecutor, the Deputy
    Prosecutors and the Registrar shall, when engaged
    on or with respect to the business of the Court,
    enjoy the same privileges and immunities as are
    accorded to heads of diplomatic missions and
    shall, after the expiry of their terms of office,
    continue to be accorded immunity from legal
    process of every kind in respect of words spoken
    or written and acts performed by them in their
    official capacity.

62
2002 Convention
  • Article 15 Judges, Prosecutor, Deputy
    Prosecutors and Registrar

63
Art. 48 ICC Estatute
  • 3. The Deputy Registrar, the staff of the Office
    of the Prosecutor and the staff of the Registry
    shall enjoy the privileges and immunities and
    facilities necessary for the performance of their
    functions, in accordance with the agreement on
    the privileges and immunities of the Court.

64
2002 Convention
  • Article 16 Deputy Registrar, staff of the Office
    of the Prosecutor and staff of the Registry

65
Art. 48 ICC Estatute
  • 4. Counsel, experts, witnesses or any other
    person required to be present at the seat of the
    Court shall be accorded such treatment as is
    necessary for the performance of their functions,
    in accordance with the agreement on the
    privileges and immunites of the Court.

66
2002 Convention
  • Article 18 Counsel and persons assisting defence
    counsel
  • Article 19 Witnesses
  • Article 20 Victims
  • Article 21 Other persons required to be present
    at the seat of the Court

67
ICC Estatute V. 2002 Convention
  • 2002 Convention adds 2 more provisions
  • Article 13 Representatives of States
    participating in the Assembly and its subsidiary
    organs and representatives of intergovernmental
    organizations
  • Article 14 Representatives of States
    participating in the proceedings of the Court

68
CONCLUSIONS
  • The Court is like
  • a giant without arms and legs
  • (CASSSESE, 1998)
  • The co-operation regime
  • is the cornerstone of the Statute

69
Thank you very muchfor your attention
  • eulalia_at_us.es
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