Cooperation with National Systems
Bleich, Jeffrey L., Denver Journal of International Law and Policy
This report concerns the provisions of the International Law Committee (ILC) Draft Statute of the International Criminal Court (ICC) regarding cooperation between the ICC and national jurisdictions. The comments of the Working Group are intended to stimulate discussion of the relevant Draft provisions and are not intended to reflect any formal conclusion of the International Law Association (ILA) Working Group.
For purposes of evaluating the current ILC Draft, the term "cooperation between the court and national jurisdictions" has a limited meaning. Cooperation between the court and national jurisdictions is, of course, implicated by virtually every provision of the Draft ILC Statute. With respect to this report, and the report of the Preparatory Committee, consideration is limited only to affirmative acts of judicial assistance by States in furtherance of the Court's jurisdiction. Specifically, these acts of cooperation involve assistance by States in conducting ICC investigations, facilitating trial, and executing the Court's sentence.
The principal issues raised by the "cooperation" provisions of the ILC Draft are:
1. Whether the ICC should have authority to conduct independent investigations and compel the cooperation of States to assist in those investigations consistent with the principle of "complementarity?"
2. Whether the ICC should have authority to compel States to arrest, detain, and transfer suspected criminals notwithstanding that state's obligations under domestic law or with regard to extradition treaties?
3. To the extent that the ICC may override some traditional limitations on extradition, what bases, if any may, a State raise for not transferring a person subject to an ICC arrest warrant?
4. What "supervisory jurisdiction," if any, will the ICC have to assist States in matters where the ICC has concurrent jurisdiction, has deferred to the jurisdiction of the national courts, and has been called upon by that nation to assist?
5. What mechanism, if any, should be employed for effectuating an ICC request in cases in which the State from which assistance is sought does not have a functioning judicial system?
These issues are addressed below.
II. THE ILC DRAFT STATUTE
As explained below, cooperation by individual States in assisting the Court is implicated principally by Articles 26 (investigation of alleged crimes), 28 (arrest), 29 (pre-trial detention and release), 31 (persons made available for prosecution), 51 (cooperation and judicial assistance), 52 (provisional measures), 53 (transfer of an accused), 54 (obligation to extradite or prosecute), 55 (rule of specialty), 56 (cooperation with States not parties), 57 (communications and documentation), 58 (recognition of judgments), and 59 (enforcement of judgments).(1)
In general, the Draft was intended to promote flexibility -- not to require "complete reliance upon national law and practices."(2) Nevertheless, consistent with the principle of "complementarity," the Draft Statute seeks to maximize reliance upon voluntary cooperation with the Court by utilizing official government organs, and avoiding initiation of an investigation within a State's territory against that State's wishes.(3) Likewise, although the Draft provides the ICC with extensive powers to require States to assist in the arrest and transfer of suspected criminals, it limits the scope of this authority based upon whether the State party has accepted the Court's jurisdiction with respect to a specific crime.
Articles 26, 51, and 52 provide for cooperation between States and the prosecutor with respect to the investigation of alleged crimes. Article 26 provides that the prosecutor has the authority to detain and question suspects, victims, and witnesses (subsection (2)(a)), collect physical evidence (subsection 2(b)), conduct on-site investigations (sub-section 2(c)), protect individuals from intimidation (subsection 2(d)), and "as appropriate, seek the cooperation of any State or of the United Nations" (subsection 2(e)). …