Introduction
The full and timely cooperation of states at every stage of the criminal process is critical to the success and integrity of the International Criminal Court. The Court, like any national court, must be able to compel the production of evidence, mandate that suspects be arrested and brought before it, and enforce judgments; yet it will be reliant on states to carry out these functions. Even if in all other respects the Court were to have full powers, its effectiveness in vindicating justice for the worst violations of human rights would be vitiated should its statute give license for states to deny compliance with its requests.
The experience of the ad hoc tribunals for Former Yugoslavia and Rwanda demonstrates the importance of the Court having full powers in the area of state cooperation to ensure that the Court's operation and existence are not rendered meaningless. The statutes, powers and practices of the ad hoc tribunals must be taken as the minimum baseline for framing cooperation duties with respect to the permanent Court. To the extent that the draft statute falls below that bare minimum, it must be strengthened so that the Court will not represent a step backward in the fight against impunity.
To ensure that the Court is capable of operating both effectively and independently, according to the highest standards of justice, the provisions of Part 9 must be framed by the following principles.
Cooperation must be defined as a matter of legal obligation that the Court may rely upon, rather than as an uncertain variable, subject to the will or circumstances of any particular state. The duty to fulfill the Court's requests should be clearly established by the treaty and freely assumed by state parties upon ratification or accession. To this end, Human Rights Watch believes it is essential that the formulation of this duty be in terms of compliance with Court requests, rather than in terms of "cooperation," which as a generic term may allow state parties to fall short of full compliance.
Moreover, the duty of the requested state to comply must entail timely action. Delay is capable of defeating justice, particularly in the context of criminal prosecutions where evidence, testimonial or other, may be destroyed, lost or itsvalue diminished over time. Provisional measures must be taken by the state pending the Court's adjudication of disputes over cooperation matters.
Of key importance is the principle of the primacy of international obligations over national law. Without shared recognition of this principle, numerous barriers would stand in the way of the Court's proper functions, even for states with every intention to be fully cooperative. National laws and rules, for example, should not be used to restrict the Court in questioning any and all witnesses privately, in accessing restricted areas for investigation, or in securing material evidence or assets necessary to enforce judgments. Nor should national laws be the yardstick for assessing the legality of the Court's requests; challenges should be referred to the Court itself for adjudication in light of the Court's own statute and international law. State claims that considerations such as national security prevail over full compliance must be subject to the Court's review and not allowed to constitute a unilaterally imposed escape clause.
To ensure that this fundamental principle is the bedrock for relations between the Court and state parties, the preamble of the draft statute should explicitly set out that state parties may not invoke domestic law as a justification for failing to give full effect to this treaty. This principle is a rule of customary international law.61 Although customary international law requires that state parties amend internal laws to comply with international law, the Court's statute should explicitly set forth the requirement of amending such laws that may obstruct cooperation, and promptly frame implementing legislation where necessary. Both the statute and its negotiating record should make clear that state parties shall not unilaterally decide the legitimacy of cooperation requests, but rather will ensure that such issues are referred to the Court and that the decisions of the Court are given the full force of law by national courts.
The Court's effectiveness might be similarly undercut were state parties to rely on other international agreements to avoid surrendering suspects to the Court orcooperating with its investigations pending resolution of the conflict of laws. It is a fundamental principle of international law that state parties may not normally amend their obligations flowing from multilateral treaties by concluding subsequent bilateral treaties. The Court's statute should deny legal effect to subsequent agreements that modify the obligations between two or more state parties under the treaty, such as subsequent bilateral extradition arrangements.
Finally, although many of the procedures outlined in this section of the draft statute have roots in the practice of extradition and mutual assistance, neither extradition nor mutual assistance agreements are an appropriate paradigm for cooperation with an international body, as opposed to cooperation between two sovereign states. The premise of the International Criminal Court is that it will administer justice according to the highest international, rather than national, standards, in cases of the most grave international crimes which carry universal jurisdiction. Traditional exceptions and allowances for refusal of cooperation in the context of extradition or mutual assistance, such as the concept of political offenses, nationality of the suspect, or procedural fairness concerns, should be inapplicable given the international nature of the Court, the strict and well-defined terms of its statutory jurisdiction, and its governance under international standards of justice.
Article 85[77]: Cooperation and judicial assistance
· Recommendation: Define the nature of the obligation as one of full compliance without undue delay. Amend Article 85[77](1) in line with Article 29 of the statute of the International Criminal Tribunal for Former Yugoslavia and Article 28 of the statute of the International Criminal Tribunal for Rwanda. As such, the statute should provide that state parties shall fully comply without undue delay with any request for assistance or order issued by the Court in connection with criminal investigations and proceedings under this statute.
Comment: As currently written, the draft provision calls into question whether the Court will even have the powers of the current ad hoc tribunals to ensure compliance with its requests and decisions. The statute must leave no doubt as to the nature of a state parties obligation to comply with the Court's requests, precisely because such compliance is essential for it to function at all. Human Rights Watch strongly urges the use of the term "comply" rather than "cooperate,"because the latter term may imply that actions short of full compliance are sufficient. Compliance must be understood as prompt action, taking into account the time limits pertinent to any given case. Finally, compliance must be "full" in nature, requiring the state to make reasonable use of all resources and means at its disposal in carrying out the request.
In our view, this provision is pivotal to the success of resolving disputes concerning cooperation request in a manner that does not frustrate the basic functioning of the Court. The vague duty of "cooperation" is open to the interpretation that a state must act in good faith but may not be `able' to satisfy the request, for example due to inconsistent national laws. The duty of compliance underscores the obligation on states to ensure that the request is satisfied, including giving the international treaty priority over domestic laws and regulations.
Moreover, in the interests of consistency, this general provision should be consistent with other provisions of the statute, and reflect the language of the sections dealing with the transfer of persons to the Court62 and other forms of cooperation,63 both of which express the obligation as one of compliance with requests.
DELETION OF GROUNDS FOR REFUSAL
Article 87[79] and 90[82](2): Grounds for refusal and denial of requests
· Recommendation: Consistent with the duty to comply, it should not be within the unilateral power of state parties to refuse requests from the Court, relating either to the transfer of persons or any other matter. The references to "grounds for refusal" and "a state party may deny a request..." in Articles 87[79](2) and 90[82](2) should therefore be deleted. If compliance would prejudice national security interests,64 a provision should be made in the statute for the state to petition the Court to set aside the request, under the terms of the proposed free-standing article onnational security.65 As it would ultimately be for the Court, in accordance with mechanisms set out in the freestanding article, to make the determination on the applicability or otherwise of the national security exception, this should not constitute grounds for refusal but rather for petition or challenge.
Comment: States are under an obligation to cooperate with the Court and must be clearly obliged to comply with its requests, as set out above. Such obligation will be rendered meaningless of the state is able to "refuse" to comply in particular circumstances. Provisions apparently allowing states unilaterally to "refuse" or "deny" requests could paralyze the Court.
Human Rights Watch recognizes that there are exceptional circumstances where a state party should not be obliged to cooperate under the statute, namely where compliance would constitute a threat to a state's national security interests. The statute should make provision for the state to petition the Court to set aside the request on that basis. Similarly, Article 87[79](3) provides for an "[a]pplication to the Court to set [requests] aside...." This article could be used as an acceptable framework for an alternative to the grounds for refusal provisions currently in the text.66 Following state petition, the Court should uphold the challenge where it finds the claim to be well founded, in accordance with the statute.
The current draft of Article 87[79] refers to states refusing to comply with a request on the basis that a case is inadmissible under Article 15[11]. It is, of course, for the Court to determine the admissibility of a case. This would be entirely inconsistent with, and undermine, other provisions of the statute. It would be disastrous for this cooperation provision to enable states to usurp the judicial function of the Court to determinations as to complementarity and admissibility.
EXCLUDING NATIONAL LAWS AS A BASIS FOR NON COMPLIANCE
Article 87[79]: national law governing transfer of an accused to the Court
· Recommendation: Article 87[79](2), which provides for the national law of a requested state to govern the conditions for complying with or denying a request for transfer, should be amended to clarify that national laws can never constitute an excuse for not complying with a request from the Court.
Comment: The obligation of the requested state to comply with the Court on this fundamental issue of transfer of the accused is an essential element of the statute, without which prosecution of serious criminals will not be possible. The statute must not, therefore, allow a state to avoid compliance with this obligation on the basis of its internal law. Rather, the fundamental principle of the supremacy of international law, and the duty of a state to change its internal law so far as necessary to accommodate its international obligations, applies.
Moreover, national laws vary greatly, creating vastly differential standards in the treatment of different cases. Such variable national laws should not control or limit the Court's ability to discharge its essential functions. Rather, the nature of a state's obligations should be governed by the statute and principles of international law.
Article 87(7): Proceedings in a requested state
· Recommendation: Delete Article 87(7), which contains provision regarding the right of provides for the person whose transfer is sought to challenge that transfer in domestic courts.
Comment: In line with the previous recommendation, the ICC should be governed by international law and general principles, not national laws and proceedings. Provisions regarding procedures that may exist on the national level have no place in the statute. The provision implies that national laws or the outcome of proceedings before domestic courts could constitute a legitimate reason for not complying with requests from the Court. Rather, as explained above, national laws must be brought into line with international obligations in the event of a divergence, and can never justify non-compliance by state parties. The provision should therefore be deleted.
THE POWER TO ORDER PROVISIONAL MEASURES
Article 87[79] and 90[82](2): No reference to provisional measures
· Recommendation: The Court should have the power to request that a state take provisional measures, in particular pending the resolution of a petition to set aside a request from the Court. In addition to the power to order provisional arrest,67 the statute should empower the Court to request other measures the Court may deem necessary for the effective discharge of its mandate.
Comment: Human Rights Watch is very concerned that the current draft does not contain an article relating to the Court's power to order provisional measures, pending a resolution of any dispute relating to cooperation. The provision which appeared in earlier drafts of the statute has been omitted from the latest text.68 Rather, the current draft of Article 87[79](3) simply provides that a state may `delay' complying with a request pending a determination of disputes relating to requests, without specific reference to the need for provisional measures. In certain circumstances, delay may prove catastrophic to the future possibility of bringing an individual to justice. Provisional arrest is clearly a key measure, and one which is explicitly addressed in the latest text. However, other measures short of provisional arrest, such as the provisional seizure of assets, measures for the protection of victims and witnesses and preservation of evidence, may likewise prove essential to ensure that justice can be done.
PRIORITY OF REQUESTS OF THE COURT OVER OTHER STATE PARTIES
Article 87[79](4): Parallel requests from the Court and states
· Recommendation: The text should clarify that states parties should always give priority to Court requests over requests from other state parties. The distinction between states that have accepted the jurisdiction of the Court and those that have not should be removed, in line with the recommendation in Section B of this commentary.
Comment: As currently written, Article 87[79](4) could apply to either extradition requests to state parties from other state parties, or to state parties from states that are not parties to the treaty. With regard to requests from state parties, the requests of the Court should always take priority. In accordance with our view that the jurisdiction of the Court be limited to core crimes, and that such jurisdiction be fully accepted by states upon ratification or accession to the treaty with no additional "opt-in" requirement, the distinction between state parties and non-state parties should be removed.
The reference in Article 87[79](4) to prioritizing "as far as possible" is ambiguous. It should be clarified that, regardless of whether it is possible to prioritize a request from the Court over requests from non-state parties, requests from the Court should always take precedence over requests from state parties.
RELATIONSHIP OF THE STATUTE TO OTHER INTERNATIONAL INSTRUMENTS
Article 87[79](4): Parallel requests from the Court and states
· Recommendation: The statute should state that compliance with the Court's requests will satisfy the requirements of preexisting treaties between state parties. It should further avoid the possibility of states seeking to rely on subsequent international agreements as a justification for non-compliance. To this end, the statute should be amended to explicitly provide that the obligations of the treaty--with respect to transfer and arrest of an accused or other matters of cooperation--may not be modified by subsequent distinct agreements entered into by state parties.
Comment: It should be expressed that compliance with the Court's statute will satisfy the requirements of preexisting treaties between state parties. This is, however, insufficient to ensure that subsequent treaties will not be interposed as obstacles to compliance in arrest and transfer and other cooperation matters. Under the Vienna Convention on the Law of Treaties, such bilateral modification of multilateral treaties is not allowed except by express provision of the multilateral treaty, or in the absence of a prohibition, where the modification will not affect the rights or obligations of other parties or does not imply derogation of a provision which would be incompatible with the effective execution of theobject and purpose of the treaty as a whole.69 As refusal to transfer an accused will of necessity defeat the purpose of bringing those accused of the most serious international crimes to justice in an international forum, the statute include an express prohibition of agreements that would modify obligations in this regard.
DELAY TO THE TRANSFER OF PERSONS SOUGHT
Article 87[79](6): Delayed transfer on ground of national proceedings or sentences
· Recommendation: Article 87[79](6), which deals with delay in surrendering a suspect on the basis that the person is being proceeded against on the national level or is serving a sentence "for a crime different from that for which surrender is sought," should be amended. The scope of this provision should be narrowed to situations where a suspect is being proceeded against for a crime that is within the jurisdiction of the Court, or of comparable gravity to the crimes within the Court's jurisdiction. In all other cases, the state party should agree to the temporary transfer. Finally, the requirement that the consent of the Court be obtained for any delay under the provisions of this article should be upheld.
Comment: Since the ICC's jurisdiction should be limited to the most serious international crimes, its prosecutions should not be delayed, and thus compromised, by ongoing state investigations or prosecutions for lesser offenses. It is reasonable that the state proceeding with a lesser offence wait for the completion of the international trial, and important to bar the dilatory tactic of interposing investigations for relatively unimportant crimes.
Different considerations pertain to the situation where a state party is proceeding against an accused for crimes equal in magnitude to the core crimes in the Court's statute. In those cases, it is reasonable for the state party to have the option toconclude its proceeding before transfer. This situation will mainly arise in the rare case where, for example, a state is trying an accused of crimes against humanity and the Court wishes to prosecute war crimes or genocide. Where a state party is trying an accused for the same offense for which he is sought by the Court, the state party will be able to challenge the admissibility of the case before the Court.
The fact that an accused is serving a sentence imposed by a state party should not serve as a barrier to transfer for the purpose of investigation or trial. In these circumstances, the accused will be kept in custody during the time required for these proceedings, which can be counted as time served towards the completion of either the state sentence or any potential sentence imposed by the Court.
Finally, it is essential that the decision of whether postponement is justified under this article be, as with all provisions of the statute, ultimately a matter for determination by the ICC itself. We therefore urge retention of the square bracketed references to consent of the Court being required to postpone the surrender of the person sought.
REQUESTS FOR OTHER FORMS OF COOPERATION
Article 90[82](1): Requests from the Court
· Recommendation: The list in Article 90[82] should be non-exhaustive as to the nature of the requests that may be made by the Court.
Comment: The ICC will, as stated above, be entirely reliant on states for the discharge of its functions. As such, it must have sufficiently broad powers to ensure that it can request all measures that prove necessary for this purpose. This entails having the flexibility to make requests beyond those that may be anticipated at the time of drawing up the statute. Human Rights Watch therefore underscores the importance of the list of cooperation measures being non-exhaustive, as provided in paragraph (m) of this provision. The statute should retain such a reference to "any other types of assistance."
INFORMATION PROVIDED FOR THE PURPOSE OF GENERATING EVIDENCE ONLY
Article 90[82](6)
· Recommendation: Article 90[82](6) provides that a state may transmit documents or information to the prosecutor on a confidential basis and the prosecutor can then use them solely for the purpose of generating new evidence, unless the state consents. The statute should vest in the Court the final authority to determine how to use information made available to it. A state's request for confidentiality should not preclude the Court from using evidence for purposes other than generating new evidence, should the interests of justice so demand. In such cases, Option 2 of Article 71[64] will still require the Court to pay due regard to the national security of the state and give the state adequate opportunity to make representations to the Court.
Comment: For the court to function fairly and effectively, it is extremely important that the prosecutor have access to the fullest information, and that states are encouraged to freely provide relevant information to the Court. At the same time, it is essential that the Court does not surrender ultimate authority to decide what the interests of justice demand in any particular case. For example, the Court must not be prevented from disclosing to the defense information critical to the preparation of a defense which the state has no legitimate interest in withholding.70
It should be noted that Article 90[82](6) imposes no restriction on the reasons why a state might wish evidence to be kept confidential. If national security interests are involve, then Option 2 of Article 71 would apply, requiring the Court to pay to the due regard to the state's claims of national security and granting the state an opportunity to make representations before the Court regarding its concerns. Genuine national security concerns of the state can be further addressed challenges to requests for cooperation, as outlined in the forgoing recommendations, or challenges to disclosure, set out below. Legitimate safety concerns may be addressed through applications to protect witnesses under Article 68[61] below. In each case, the Court must retain the authority to make the final determination on how the information is to be used.
The statute must guard against the situation wherein a state, by surrendering information or evidence under this article, can control the manner in which the information is used. This would clearly expose the Court to unacceptable politicalmanipulation.71 If a state could limit the Court's use of important information for any or no particular reason, this would entirely undermine the obligatory nature of full cooperation and compliance with the Court's requests, as provided for in this part of the statute.
NON APPLICABILITY OF THE RULE OF SPECIALITY
Article 92[84]: Rule of speciality
· Recommendation: The rule of speciality provides that an accused may only be prosecuted for the crime in consideration of which he or she was surrendered by a state, and that evidence provided by a state shall be used only for the purpose for which it was requested. In view of the extremely limited jurisdiction of the Court, the rule of speciality is appropriate and Article 92[84] should be deleted in its entirety.
Comment: Speciality has been viewed as an important source of protection of the rights of accused persons in the context of extradition, preventing requesting states from prosecuting surrendered individuals on charges totally unrelated to the request, that the surrendering state has not had the opportunity to evaluate. We believe that it is extremely unlikely the ICC will engage in abusive "fishing expeditions," and in view of the very limited scope of crimes we advocate placing under its jurisdiction, the danger of abusive prosecution is minimal.
This speciality provision could politicize the Court, by empowering a state to control or influence the way in which international prosecutions proceed. It would be unacceptable, for example, for a state to surrender evidence to be used in the prosecution of a national of state X, and yet bar the Court from using that evidence in the prosecution of a national of state Y, with which the surrendering state enjoys friendlier relations. The Court should not be fashioned with an inherent susceptibility to political manipulation.
Finally, the Court's jurisdiction should be limited to core crimes of the most serious character: crimes against humanity, genocide, and serious breaches of the laws and customs of war. In any given situation where such charges are likely,the abuses that would give rise to them are likely to share a common nexus of fact. The practice of the ad hoc tribunals has shown that after transfer, the tribunal is likely to have substantially more information than it had prior to the request. It serves little valid purpose to require the Court to prosecute a suspect on war crimes alone when subsequent information shows that he or she is also responsible for genocide or crimes against humanity.
64 This would only arise in the context of Article 90[82](2); an exception to the duty to transfer could not be justified by national security, while an exception related to the protection of information may be.
65 See recommendations in Section M.
66 Article 87[79](3), provides for "[a]pplication to the Court to set aside [surrender][transfer][extradition]." Clearly, the use of extradition terminology is, as explained in the introduction, inappropriate, given the very different nature of relations between state parties and the ICC and the relation between two equal sovereign states. The suggestion is that the principle of applying to set aside a request enshrined at this part of the statute may, however, prove useful. With regard to the terms of Article 87[79](3) concerning the states right to delay compliance pending resolution of the dispute before the Court, see comment below on the adoption of provisional measures.
68 Article 52 of the International Law Commission's original draft statute provided that, if need be, the Court may request that a state take necessary provisional measures, pending a formal request for assistance.
69 Article 41 of the Vienna Convention on the Law of Treaties provides that two or more parties to a multilateral treaty may conclude an agreement to modify the treaty only where the treaty so provides or the modification in question is not prohibited and "(I) does not affect the enjoyment by other Parties of their rights under the treaty or the performance of their obligations, or (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole." Without doubt, subsequently executed extradition or mutual assistance treaties that would obstruct the functioning of the International Criminal Court would violate such provisions.
71 It is noted that where the Court wishes to disclose information to the accused, pursuant to Article 58[51], the state has the right to challenge that disclosure and seek an order of non-disclosure, under Article 58[51] (f).
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