National Enforcement of International Humanitarian Law

Information kit

International Committee of the Red Cross Advisory Service on International Humanitarian Law 19 Avenue de la Paix 1202 Geneva, Switzerland T +41 22 734 6001 F +41 22 733 2057 ICRC E-mail: [email protected] Advisory Service

www.icrc.org 0839/002 01.2004 200 on International Humanitarian Law ICRC

ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ______

Obligations in terms of penal repression

International humanitarian law (IHL) is a set of rules designed to protect persons who are not, or no longer, participating in hostilities and to limit the methods and means of waging war. It also sets out mechanisms designed to ensure compliance with the rules of this branch of law. Of these, the prevention and, if necessary, repression of serious violations are particularly important. Under IHL, the perpetrators bear individual responsibility for the violations they commit, and those guilty of serious violations must be prosecuted and punished. The four of 1949 (GC I-IV), their Additional Protocol I of 1977 (AP I) and other treaties set forth the States Parties' explicit obligations regarding penal repression of serious violations of the rules they contain. The nature and extent of these obligations differ from one treaty to another, especially regarding the to prosecute or try offenders and the repression's material and personal field of application.

The Geneva Conventions of 1949 in accordance with the principle of The States must honour these and their Additional Protocols of . They must obligations both in peacetime and 1977 bring these persons before their own during armed conflict. In order to be courts, or hand them over for trial to effective, appropriate steps must be The States party to the Geneva another State which has made out a taken before there is any opportunity Conventions and Additional prima facie case (GC I, Art. 49; for "grave breaches" to occur. Protocols must prevent and halt acts GC II, Art. 50; GC II, Art. 129; contravening these instruments no GC IV, Art. 146 and AP I, Art. 85, Violations of Article 3 common to matter whether they are committed para. 1). For States party to the Geneva Conventions and of in an international or non- Additional Protocol I, this obligation Additional Protocol II (non- international armed conflict. The also covers "grave breaches" international armed conflicts) measures that States must take to resulting from a failure to act when this end may vary in nature and may under a duty to do so (Art. 86, para. While treaty law contains no include penal sanctions if 1). obligation to repress such violations, appropriate. authorizes States to In order to meet these obligations, prosecute the perpetrators of these The States Parties have further the States Parties must adopt the violations in accordance with the obligations relating to certain legislative measures needed to principle of universal jurisdiction. flagrant violations of IHL, the "grave punish persons responsible for These violations are included in the breaches". These are precise acts "grave breaches". They must in definition of war to be found listed in the Geneva Conventions particular: in Article 8 of the Statute of the and Additional Protocol I. They enact laws which prohibit and International Criminal Court, and include wilful killing, and repress "grave breaches" and they are increasingly being inhuman treatment, wilfully causing which apply to anyone, irrespective criminalized by national legislation. great suffering or serious injury to of his nationality, who has body or health, and certain committed or ordered the The 1954 Hague Convention for violations of the basic rules for the commission of such offences, and the protection of cultural property conduct of hostilities (GC I, Art. 50; ensure that these laws relate to acts in the event of armed conflict, and GC II, Art. 51; GC III, Art. 130; committed in national territory and the Second Protocol thereto of GC IV, Art. 47; AP I, Art. 11 and 85). elsewhere; 1999 "grave breaches" are regarded as endeavour to trace persons alleged war crimes (AP I, Art. 85, para. 5). to have committed "grave Violations of the Convention breaches", start legal proceedings Repressing «grave breaches» of against them, or extradite them so The Convention obliges the States the Geneva Conventions and that they may be tried in another Parties to take, within the framework Additional Protocol I State; of their criminal jurisdiction, all the instruct their commanders to steps needed to prosecute and The Geneva Conventions and prevent or put an end to "grave impose penal or disciplinary Additional Protocol I plainly stipulate breaches" and to take steps against sanctions on persons of whatever that "grave breaches" must be persons under their authority who nationality who have committed or punished. The States Parties must are guilty of such offences; ordered the commission of a breach search for persons accused of afford one another judicial of the Convention (Art. 28). having committed or having ordered assistance in any proceedings the commission of "grave breaches", related to" grave breaches". This obligation takes in violations regardless of the nationality of the committed in situations of perpetrator or the locus of the , international armed conflict and, as

far as provisions related to respect This ban applies in all The ban contained in this of cultural property are concerned, circumstances (Art. I). Convention on the development, also when perpetrated during a non- production, acquisition by other international armed conflict (Art. 19). The 1976 Convention on means, stockpiling, transfer or use environmental modification of chemical , or on the Violations of the Second Protocol techniques engaging in military preparations to use such weapons, applies in all States party to the 1954 Convention The States Parties are obliged to circumstances (Art. I). and its Second Protocol are obliged, take any measures they consider in the event of an international or necessary to prohibit and prevent The 1997 Ottawa Convention on non-international armed conflict: any activity in violation of the anti-personnel mines to establish as criminal offences Convention anywhere under their under their domestic law serious jurisdiction or control (Art. 4), that is The States Parties must take all violations of the Protocol, to say any military or other hostile appropriate legal, administrative and intentionally committed, in the form use of environmental modification other measures, including the of attacks against property under techniques having widespread, long- imposition of penal sanctions, to enhanced protection, or the lasting or severe effects, as the prevent and suppress any prohibited extensive destruction or means of causing destruction, activity by persons, or in territory appropriation of property, as damage or injury to any other State under their jurisdiction or control specified in Article 15, paragraph 1 party (Art. 1). (Art. 9). The prohibition on the use, of the Protocol (Art. 15, para. 2); development, production, acquisition to adopt such legislative, Amended Protocol II (on mines, by any other means, stockpiling, administrative or disciplinary booby-traps and other devices) to retention or transfer of anti- measures as may be necessary to the 1980 Convention on certain personnel mines applies in all suppress other prohibited conduct, conventional weapons circumstances (Art. 1). in particular that defined in Article 21 of the Protocol; The States Parties must take all The Statute of the International to prohibit and prevent, in occupied appropriate steps, including Criminal Court (ICC) territory, the conduct defined in legislative measures, to prevent and Article 9, paragraph 1 of the suppress violations of the Protocol The ICC Statute gives the Court Protocol. by persons, or in territory, under jurisdiction over the crime of their jurisdiction or control (Art. 14, , , When adopting legislation para. 1). war crimes committed during an criminalizing the violations referred international or non-international to in Article 15, paragraph 1 of the The States Parties have the further armed conflict, as defined in the Protocol, the States must establish obligation to impose penal sanctions Statute, and the the jurisdiction of their courts as against persons who, in connection once a definition thereof has been follows: with an armed conflict and contrary adopted (Articles 5 to 9). The for the violations defined in to the provisions of the Protocol, jurisdiction of the ICC is Article 15, paragraph 1 (d) and (e), wilfully kill or cause serious injury to complementary to that of States: it on the basis of territoriality and civilians (Art. 14, para. 2). This may be exercised solely when a nationality; obligation applies in respect of State is unable genuinely to carry for the violations defined in persons or territory under the out the investigation or prosecution Article 15, paragraph 1 (a), (b) and jurisdiction or control of the State in of alleged criminals under its (c), also on the basis of the mere question, regardless of whether the jurisdiction, or is unwilling to do so presence of the alleged offender in violation has been committed in an (Art. 17). If they wish to avail the territory of the State in question armed conflict of international themselves of their own courts' (Art. 16, para. 1). character or not (Art. 1, para. 2). jurisdiction, the States Parties must have suitable legislation enabling In addition, the States Parties have The 1993 Convention on chemical them to bring these persons to trial an obligation, similar to that weapons in accordance with the requirements regarding "grave breaches" of the of the Statute. GC and AP I, to bring to trial or The States Parties must take the extradite persons who have measures needed to implement their The States Parties are also obliged allegedly committed the violations obligations under the Convention. to cooperate fully with the ICC in its referred to in Article 15, paragraph 1 They must, in particular, enact penal investigation and prosecution of of the Protocol (Art. 17). legislation so as to punish violations crimes within its jurisdiction (Art. 86). of the Convention by natural or legal In addition, they must repress The 1972 Convention on persons anywhere in their territory offences against the administration biological weapons or in any other place under their of justice by the ICC which have jurisdiction or control, or by their been committed in their territory or The States Parties are obliged to nationals in any place whatsoever by one of their nationals (Art. 70, take any measures needed to (Art. VII, para. 1). para. 4). prohibit and prevent, in their territory, or in any other place under The States Parties are also obliged their control or jurisdiction, the to cooperate with each other by development, production, affording mutual legal assistance to stockpiling, acquisition or retention facilitate the implementation of of agents, toxins or biological obligations for repression (Art. VII, weapons, or the equipment for and para. 2). 01/2004 means of delivering them (Art. IV).

ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ______

Method of incorporating punishment into

From a legislative point of view, incorporating punishments into domestic law for violations of international humanitarian law involves two problems: the definition of the criminal offence (the method of criminalization) and the form and the place in which it is to be introduced into the legal system.

Method of criminalizing violations law do not always correspond to the special conditions encountered in of international humanitarian law the requirements of international situations of armed conflict. humanitarian law, nor are the The legislator has a number of penalties appropriate to the Criminalization in domestic law by options for translating serious context of armed conflicts or to a generic provision violations of international the seriousness of the crimes in humanitarian law into national penal question. Grave breaches and other violations legislation and for making the criminal of international humanitarian law may acts constituting them subject to If a State, which follows this option is be criminalized in domestic law by domestic law: to comply fully with its treaty containing a reference to the relevant obligations, a detailed examination of provisions of international Application of the existing military its criminal law must yield affirmative humanitarian law, to or ordinary national criminal law answers to the following questions: in general, or to the laws and customs of war (customary law) and specifying This option takes the view that • are grave breaches of the a range of penalties. domestic criminal law provides Geneva Conventions of 1949 and adequate punishment for serious Additional Protocol I of 1977 Advantages: violations of international covered fully and with sufficient • this option is simple and humanitarian law and that it would be clarity? economical. All breaches of superfluous, therefore, to make them • in establishing guilt and international humanitarian law are a specific offence. On the assumption determining sentences, is due made punishable by simple that the precedence of international account taken of lawful conduct in reference to the relevant law over national law is recognized, combat, such as killing an enemy instruments and, where domestic legislation must be soldier fighting within the applicable, to customary law; interpreted in accordance with the framework of an international • no new national legislation is provisions of international law by armed conflict? needed when the treaties are which the State is bound and any • do the laws in force allow special amended or new obligations arise gaps in the law must be closed. circumstances provided for by for a State which becomes party

international humanitarian law to a new treaty. Advantage: regarding general principles of • modern penal codes provide for criminal law to be taken into Disadvantages: the punishment of a number of account (in particular, the form in • criminalization by a generic different types of conduct, which individuals commit or take provision may prove insufficient in including serious violations of part in the offence, the view of the principle of legality, such fundamental human inadmissibility of certain particularly as this method does as the rights to life, health, mental defences, the responsibility of not permit any differentiation of and physical integrity, personal superiors, etc.)? the penalty in accordance with liberty, and property. • from the point of view of the the gravity of the act, unless this accused, does this option, which is left to be decided by the judge Disadvantages: requires the judge to interpret the law in the light of international in application of strict criteria laid • offences introduced under law, in other words broadly, down by law; domestic criminal law often satisfy the requirements of the • it requires the judge of the correspond only roughly to principle of nullum crimen et nulla national court to clarify and criminal offences normally poena sine lege? interpret the law in the light of the associated with the conduct of provisions of international law, hostilities; In some cases, these questions were leaving him with considerable • the procedures and conditions resolved by including aggravating room for manoeuvre. His task is whereby offenders may be circumstances in already existing not made any easier by the fact punished under domestic criminal offences so as to take into account that the definitions of war crimes

contained in the international criminalization of certain serious the trend in certain countries to instruments may not correspond offences. concentrate provisions of criminal law exactly to the type of formulation as far as possible into a single body of with which he is generally On the whole, the generic provision is law. confronted. residual in the sense that it concerns facts which are not specifically The option of incorporation into Specific criminalization of types of criminalized and subjected to sanction existing legislation, apart from obliging conduct (in accordance with the principle lex the legislator to determine the form of specialis derogat lege generali). The incorporation (specific section or This method consists in criminalizing combination of general and specific chapter, complements to existing in national law the types of conduct criminalization may also be crimes and so on), also poses the treated as crimes in international complemented by the subsidiary problem of where the punishable treaties. This can be achieved in application of other provisions of the offence is to be placed and especially various ways. In particular: common criminal law. whether it is to be placed in ordinary criminal law or military criminal law. • by transcribing the whole list of Advantage: Because the persons responsible for offences into national law with the • under the various forms which it violations of international identical wording of the treaties may take, this method permits humanitarian law may be either and laying down the penalties treaty obligations with regard to military personnel or civilians, some applying to them, whether the repression of breaches of States have placed the relevant individually or by category; international humanitarian law to • provisions in both ordinary criminal by separately redefining or be carried out fully and with due law and military criminal law, or they rewriting in national law the differentiation. have extended one of these bodies of description of the types of law so that it covers both military conduct constituting the offences. Disadvantage: personnel and civilians. Advantages: • this method requires that the judge be able to interpret As the criminal legislative system and • when these offences are simultaneously the provisions of the relationship between ordinary separately defined in national both domestic and international criminal law and military criminal law criminal law, the independence of law. vary so much from country to country, the definition from international it is difficult to favour either variant in law means that repression of a the abstract. The important thing is to treaty violation can take place Form and place of criminalization ensure that the choice does not result even if the treaty in question has in a vacuum of jurisdiction in not been ratified by the Civil-law countries personam. prosecuting State;

• as far as the accused is Methods Common-law countries concerned, specific criminalization better respects the The various methods of making violations of international In common-law countries, where the principle of legality, since it lays legal system is not based on codes, down clearly and predictably humanitarian law punishable – especially the options of serious violations of international which types of conduct are humanitarian law are sanctioned by considered criminal and thus criminalization through a generic provision and/or specific primary legislation transposing and subject to punishment; executing the treaty in the domestic • it facilitates the task of those criminalization – mainly take the form of: legal system (in a Geneva charged with applying the law by Conventions Act, for example). This partly relieving them of the often • a special stand-alone law kind of legislation generally defines tedious burden of research and both the material scope of the interpretation in the field of separate from penal codes; • offences and the jurisdiction to which international law. an insertion into the existing criminal legislation (ordinary they are subject.

Disadvantages: penal codes and/or the military penal code). * * * • specific criminalization is a major Though penal sanctions are task for the legislator, requiring Evaluation of the two methods indispensable to ensure respect for considerable effort in research international humanitarian law, they The combination in one and the same and drafting. It may entail an are insufficient in themselves to put piece of legislation of both extensive review of existing penal an end to acts contrary to the criminalization and the formal and legislation; provisions of this body of law. In all • material principles of criminal law, in cases, the provisions of criminal law if the criminalization is too accordance with the specific detailed and specific, it may lack need to be placed within a suitable requirements of international criminal regulatory framework allowing the flexibility needed to law, certainly facilitates the work of incorporate related developments persons amenable to the jurisdiction legal practitioners in those States in of a country's courts, whether they be in international law at a later which such a legislative method can stage. military personnel or civilians, to know be used. However, the adoption by a the rules of conduct and their legal State of a special stand-alone law Combining options responsibility in the event of armed separate from the penal codes does conflict. not always fit readily into the structure A mixed approach involves combining of the legislative system in criminal 12/2003 criminalization by a generic provision matters. Moreover, it runs counter to with the explicit and specific

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Universal jurisdiction over war crimes

The repression of war crimes is essential to ensuring respect for international humanitarian law. The incorporation into that body of law of the principle of universal jurisdiction, which entitles a State to prosecute offenders even in the absence of any link between the crime committed and the forum, is one means of facilitating and securing the repression of war crimes.

State jurisdiction States is justified, or required, as a Convention (Arts 49, 50, 129 and 146, matter of international public policy. respectively), States are required to A State may exercise jurisdiction within search for alleged offenders “regardless its own territory. Such jurisdiction A distinction can be made between the of their nationality,” and either bring includes the power to make law offences that States are obliged to them before their own courts or hand (legislative jurisdiction), the power to investigate in application of universal them over for trial by another State interpret or apply law (adjudicative jurisdiction (mandatory universal Party which has made out a prima facie jurisdiction) and the power to take action jurisdiction) and those with respect to case (principle of aut dedere aut to enforce law (enforcement which they may choose to do so judicare). While the Conventions do not jurisdiction). However, while the (permissive universal jurisdiction). expressly state that jurisdiction is to be assertion of enforcement jurisdiction is Universal jurisdiction may be provided asserted regardless of the place of the generally limited to national territory, for by a rule of customary or treaty- offence, they have been generally international law recognizes that in based international law. In cases where interpreted as providing for universal certain circumstances a State may it is established by treaty, it is generally jurisdiction. As such they are among the legislate for, or adjudicate on, events mandatory. earliest examples of universal arising outside its territory jurisdiction in treaty law. (extraterritorial jurisdiction). The exercise of universal jurisdiction may either take the form of the The Geneva Conventions provide for In relation to criminal law, a number of enactment of national law (legislative mandatory universal jurisdiction, since principles have been invoked as the universal jurisdiction) or the they oblige States to try those who have basis for such extraterritorial jurisdiction. investigation and trial of alleged allegedly committed grave breaches or These include jurisdiction over acts: offenders (adjudicative universal institute the necessary procedures to jurisdiction). The former is far more extradite such persons. States may • committed by persons having the common in State practice and is institute legal enquiries or proceedings nationality of the forum (nationality generally a necessary basis for even against persons outside their or active personality principle); investigation and trial. It is however territory. Given that to • committed against nationals of the feasible, at least in principle, for a court another State may not be an option, forum (passive personality principle) to base its jurisdiction directly on States must in any event have in place or international law and to exercise penal legislation enabling them to try • affecting the security of the State adjudicative universal jurisdiction alleged offenders, regardless of their (the protective principle). without any reference to national nationality or the place of the offence. legislation. While these principles enjoy varying Protocol I of 1977 additional to the levels of support in practice and opinion, Geneva Conventions of 1949 extends they all require some form of link Universal jurisdiction over war the principle of universal jurisdiction to between the act committed and the crimes grave breaches of the rules relating to State asserting jurisdiction. However the conduct of hostilities. It also qualifies universality, a further basis for asserting The basis for the assertion of universal all grave breaches as war crimes (Art. extraterritorial jurisdiction, requires no jurisdiction over war crimes is to be 85). such link. found in both treaty law and in customary international law. Other instruments relevant to international humanitarian law, such as Universal jurisdiction Treaty law Convention of 1954 for the protection of cultural property in the Universal jurisdiction refers to the The treaty basis for the assertion of event of armed conflict, and its Second assertion of jurisdiction over offences universal jurisdiction was introduced by Protocol, provide for a similar obligation regardless of the place where they were the four Geneva Conventions of 1949 for States Parties to repress serious committed or the nationality of the for the protection of war victims in violations of these instruments on the perpetrator. It is held to apply to a range relation to those violations of the basis of the principle of universal of offences whose repression by all Conventions defined as grave breaches. jurisdiction. Under the relevant article of each

Customary international law also be laid down in criminal procedural prosecuted must also be an offence in law or in a law on the organization of the the place where it occurred, is While the relevant treaty law provisions courts. Some States have granted their incompatible with the requirements of are restricted to grave breaches, courts universal jurisdiction with regard international humanitarian law. universal jurisdiction in customary to certain offences by means of a international law may be regarded as special stand-alone law. The prosecution and trial of offences extending to all violations of the laws occurring abroad imposes particular and customs of war which constitute In countries without code-based problems in relation to the gathering of war crimes. This would include certain systems – generally those with a evidence, respect for the defendant's serious violations of applicable law, in common-law system – it is the usual rights, and protection of witnesses and particular Article 3 common to the practice to provide for universal victims. Appropriate procedures for Geneva Conventions and Additional jurisdiction in primary legislation defining prosecutions and trials under universal Protocol II of 1977, committed in non- both the jurisdictional and material jurisdiction must address these issues international armed conflict. scope of the offence. by means of suitable provisions to facilitate investigations as well as the In contrast with treaty law, there do not gathering and evaluation of evidence. In appear to be any grounds for concluding Legislative issues this respect, arrangements for that customary international law international judicial cooperation are requires States to exercise jurisdiction. Whatever the method adopted, a essential and may in some cases Thus in relation to war crimes which do number of issues need to be addressed require reinforcing. not constitute grave breaches of in providing for universal jurisdiction in international humanitarian law, States national law: may choose whether to exercise Universal jurisdiction of national universal jurisdiction. • In order to prevent impunity, all war courts and of the International crimes, whether committed in Criminal Court connection with international or Legislative methods non-international armed conflict, The right, or in some cases the should be subject to universal obligation, to prosecute war crimes States have adopted a range of jurisdiction. under universal jurisdiction existed methods to provide for universal • It is important to make clear that before the adoption of the 1998 Rome jurisdiction under their national law. jurisdiction extends to all persons Statute of the International Criminal directly or indirectly responsible for Court (ICC). In its preamble, the Statute Constitutional provisions are of central committing the offences concerned, affirms that national courts have primary importance in determining the status of whatever their nationality and responsibility for trying such crimes. The customary or treaty law in the domestic regardless of whether the offence ICC's jurisdiction over war crimes is thus legal system. It is conceivable that was committed within the State's considered to be complementary: the courts might rely directly on such territory or abroad. ICC will exercise its jurisdiction only provisions or on international law to • The criteria for opening criminal when a State is unwilling or unable exercise universal jurisdiction where proceedings, or for justifying a genuinely to carry out the investigation permitted or required. However, refusal to do so, must be set forth in or prosecution (ICC Statute, Art. because the relevant provisions of clear and precise manner. 17.1(a)). international law are not self-executing, • Given that the jurisdiction of States it is preferable to specify in national law may be concurrent, the exercise of It is important, therefore, that States the jurisdiction applicable to war crimes. jurisdiction by any one State may have appropriate legislation, which be subject to certain conditions, meets the requirements of international A number of States with a (code-based) such as respecting the principle of humanitarian law and the ICC Statute civil-law system provide for universal ne bis in idem, and taking into and allows them to undertake jurisdiction within their ordinary and/or account penalties already imposed investigations and criminal prosecutions military penal code. This code may abroad, previous exercise of and to bring to trial anyone accused of a define the jurisdictional and material jurisdiction by another State or by . scope of the offence in the same an international tribunal, and the section. More frequently however, the defendant’s presence – even provisions on universal jurisdiction are temporary – in the territory of the included in the general section of the prosecuting State. code and refer to substantive offences 12/2003 defined elsewhere in the same The condition of double criminal liability, instrument. Universal jurisdiction may however, according to which the offence

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Time-barring

Time-barring, or the application of a statutory limitation on legal action in the event of an offence, may relate to either of two aspects of legal proceedings. On the one hand, the time bar may apply to prosecution. If a certain time has elapsed since a breach was committed, this would mean no public action could be taken, and that no verdict could be reached. On the other hand, the limitation may apply only to the application of the sentence itself. In this case the fact that a certain amount of time had elapsed would mean the criminal sentence could not be applied. Because the repression of serious violations of international humanitarian law is essential to ensuring respect for this branch of law, the issue of a time bar for these violations must be raised. This is all the more important in view of the gravity of certain violations, qualified as war crimes, that run counter to the interests of the international community as a whole.

Time-barring in national criminal On 26 November 1968, the United customs of war existing at that law systems Nations General Assembly adopted time, which are not grave the Convention on the Non- breaches of the Geneva Most legal systems make Applicability of Statutory Limitations Conventions, allowances for a time bar for minor to War Crimes and Crimes Against offences. But for serious crimes, Humanity. The convention applies to “when the specific violation under several legal systems, and in both prosecution and the application consideration is of a particularly particular those based on common of sentences, and covers war crimes grave character by reason either of law, do not permit a time bar for – in particular, grave breaches of the its factual and intentional elements prosecution. Legislatures in Geneva Conventions – and crimes or of the extent of its foreseeable countries where civil law prevails against humanity, including consequences.” have either established time bars for and genocide, committed serious crimes that are much longer in times of war and of peace. It is The convention may also, by than those for misdemeanours, or retroactively effective, insofar as it declaration of a contracting State, excluded this type of crime abolishes time bars that had be extended to any other violation of altogether from the effect of previously been established international law which the statutory time limitations. pursuant to laws or to other contracting State concerned enactments. considers as being of a comparable The time-barring of the application nature to the crimes against of criminal penalties is less At the regional level, the European humanity and war crimes specified prevalent in the various legal Convention on the Non-Applicability in the convention. systems. This type of statutory of Statutory Limitations to Crimes limitation does not exist at all in against Humanity and War Crimes The and Council of common law, and indeed it is of 25 January 1974 deserves to be Europe conventions do not directly extremely restricted in the other mentioned. The convention, which make the absence of statutory systems. Where it does exist, the entered into force on 27 June 2003, limitations effective in the legal time limitations are generally very covers both prosecution and the systems of the States party to them. long for the most serious offences. application of sentences, but applies The States have to take the Generally, the only to crimes against humanity appropriate legislative measures does not apply for certain types of “specified in the Convention on the within their domestic legal systems. offence or in cases involving Prevention and Punishment of the dangerous or repeat offenders. Crime of Genocide” of 9 December The 1998 Rome Statute of the 1948. International Criminal Court (ICC) states that “[t]he crimes within the The lack of statutory limitation for As for war crimes, the convention jurisdiction of the Court shall not be war crimes in international law establishes the non-applicability of subject to any statute of limitations” statutory limitations to: (Art. 29). In this case, then, the non- Treaty law applicability of statutory limitations • grave breaches of the Geneva concerns war crimes, crimes against The Geneva Conventions of 1949 Conventions, or humanity, genocide and the crime of and their Additional Protocols of • any comparable violations of aggression. 1977 say nothing on the subject of the laws of war having effect at time bars for war crimes. the time of the convention’s States desiring to maintain entry into force and of the jurisdiction over the crimes defined in the Statute as within the

jurisdiction of the ICC, and thus to applicability of statutory limitations to • the growing number of States take advantage of the principle of them: party to the United Nations and complementary relationship on Council of Europe conventions. which the ICC is based, must • the growing number of States abolish time bars for these crimes in having stipulated the non- their national legislation. applicability of statutory limitations to these crimes in Customary international law their penal legislation; • the codification of this concept Several factors have contributed to in Article 29 of the ICC Statute, 12/2003 bring to the fore the customary which its drafters considered nature of war crimes and crimes crucial to preventing impunity against humanity and the non- for these crimes;

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Command responsibility and failure to act

International humanitarian law provides a system for repressing violations of its rules based on the individual criminal responsibility of those responsible. The violations can also result from a failure to act. In armed conflict situations, armed forces or groups are generally placed under a command that is responsible for the conduct of subordinates. It is reasonable, then, in order to make the repression system effective, that the hierarchical superiors should be held individually responsible when they fail to take proper measures to prevent their subordinates from committing serious violations of international humanitarian law.

Perpetrator responsibility for failing committing a violation of international Additional Protocol I of 1977 to act humanitarian law. Principles that came out of the trials The system established in the The trials held after the Second held after the Second World War were Geneva Conventions of 1949 for World War incorporated in Article 86.2 of repressing grave breaches targets Additional Protocol I: persons who have committed or The problem of command ordered the commission of such a responsibility became a burning issue “The fact that a breach of the breach. Persons who by failing to act during the Second World War. Conventions or of this Protocol was have allowed a grave breach to Although the Charter of the Nürnberg committed by a subordinate does not happen can also be held criminally International Military Tribunal contains absolve his superiors from penal or liable. Just as it is possible to kill no rules on this subject, the trials held disciplinary responsibility, as the case someone by withholding food or after the war laid down broad outlines. may be, if they knew, or had proper care, the grave breach of information which should have depriving a prisoner of war of his right Without reviving the controversy to enabled them to conclude in the to a fair and regular trial can be and which those decisions inevitably gave circumstances at the time, that he usually is committed simply by failing rise, the mechanism of command was committing or was going to to take action. responsibility may be summarized as commit such a breach and if they did follows: not take all feasible measures within Additional Protocol I of 1977 is more their power to prevent or repress the explicit; Article 86.1 specifies that: • it involves a superior, i.e. a breach.” person having authority over a “The High Contracting Parties and the subordinate; Article 87 of Additional Protocol I Parties to the conflict shall repress • the superior knew or should have spells out the duties and obligations of grave breaches, and take measures known that the crime was being military commanders with respect to necessary to suppress all other or was going to be committed; their subordinates. The superiors breaches, of the Conventions or of • the superior had the ability to must prevent and, where necessary, this Protocol which result from a prevent the criminal conduct or suppress and report to competent failure to act when under a duty to put a stop to it; and authorities grave breaches committed do so”. • the superior failed to take all by their subordinates. Only in the necessary and reasonable event that he failed in these duties The grave breaches referred to in measures within his power to does a commander risk being held Article 85 of Additional Protocol I also prevent the criminal conduct or criminally responsible for taking no include those generally committed by put a stop to it. action. a failure to act, such as the unjustified delay in repatriating prisoners of war The Geneva Conventions of 1949 A “superior” is understood as or civilians. someone personally responsible for The Geneva Conventions are silent the acts committed by subordinates on this point and it is for national placed under his control. for failing legislation to regulate the matter by to act express provision or by application of The issue of how much knowledge the general rules of criminal law. the superior should have of the acts At issue is the responsibility of a or intentions of his subordinates is superior who fails in his duty by doing difficult to resolve. It should be borne nothing to prevent a subordinate from in mind in this connection that the superior who fails to keep himself

informed is also liable to be held Command responsibility according Responsibility for failing to act responsible. to the Statute of the International during a non-international armed Criminal Court (ICC) conflict The superior’s duty to act consists in initiating “such steps as are The Statute of the International The Geneva Conventions and 1977 necessary” to prevent or suppress the Criminal Court distinguishes two kinds Protocol II additional thereto make no crimes of his subordinates. Only those of hierarchical responsibility. explicit mention of any criminal steps that are within his power are responsibility on the part of required; it is not a matter of making Responsibility of military hierarchical superiors for breaches every superior a judge. commanders committed by their subordinates during a non-international armed A superior’s failure to act Article 28 of the Statute lays down conflict. It should be noted, however, considered as a grave breach that a military commander or a person that the principle of responsible “effectively” acting as a military command within armed groups is one The limits to criminal responsibility for commander is criminally responsible of the terms of application of failing to act are not clearly specified for crimes within the jurisdiction of the Additional Protocol II. In addition, in criminal law. In international ICC committed by forces or persons national criminal legislation in an humanitarian law, a further difficulty under his effective command and increasing number of States provides stems from the fact that failure to act control, or effective authority and for holding superiors criminally on the part of a superior is not control, where: responsible for all war crimes, expressly qualified as a grave breach, regardless of whether the armed whereas the obligation of States to • he either knew, or owing to the conflict in which they are committed is repress offences or extradite persons circumstances, should have international or non-international. in the exercise of universal jurisdiction known that the forces or persons concerns grave breaches only. were committing or about to The Statutes of the International commit such crimes; and Criminal Tribunal for the former In the system of repression • he failed to take all necessary Yugoslavia (Art. 7.3), the International established by international and reasonable measures within Criminal Tribunal for (Art. humanitarian law the superior's his power to prevent or repress 6.3), the Special Court for Sierra criminal liability is considered as a their commission or to submit the Leone (Art. 6.3), and the ICC (Art. 28) form of participation in the matter to the competent expressly state that superiors bear commission of the crime. A superior authorities for investigation and responsibility, in particular if they fail held responsible for one of his prosecution. to take action, for crimes committed subordinates committing a grave by their subordinates in a non- breach should himself be charged Responsibility of civilian superiors international armed conflict. That form with committing a grave breach. of responsibility applies to all the States have a duty to punish the Similarly, a hierarchical superior in a crimes submitted to the jurisdiction of superior or extradite him, regardless non-military relationship with those tribunals. Article 4 of the Statute of his nationality or the place where subordinates is criminally responsible of the International Criminal Tribunal the offence occurred. for crimes within the jurisdiction of the for Rwanda expressly asserts the ICC committed by subordinates under Tribunal’s power to prosecute grave his effective authority and control, breaches of Article 3 common to the Case law of the ad hoc where: Geneva Conventions and of international criminal tribunals Additional Protocol II, which apply to • he knew, or consciously non-international armed conflict. The The case law of the ad hoc disregarded information which same power is claimed by the Special international criminal tribunals has clearly indicated, that the Court for Sierra Leone in Articles 3 clarified the conditions under subordinates were committing or and 4 of its Statute; in addition, the international humanitarian law for about to commit such crimes; Court has jurisdiction in respect of holding superiors responsible for • the crimes concerned activities other specified serious violations of offences committed by their that were within his effective international humanitarian law subordinates. In particular, it responsibility and control; and committed within the country. Article establishes that it is not necessary to • he failed to take all necessary 8.2(c) and (e) of the ICC Statute be the hierarchical superior de jure of and reasonable measures within asserts the ICC’s jurisdiction in the direct perpetrator of a crime to be his power to prevent or repress respect of serious violations of held criminally responsible for his their commission or to submit the Article 3 common to the Geneva actions; it is sufficient to exercise matter to the competent Conventions and of other serious authority over such a person de facto. authorities for investigation and violations of the laws and customs The same case law has also made it prosecution. applicable in armed conflicts not of an clear that belonging to the military is international character, for which a not a necessary condition, as a hierarchical superior can therefore be civilian hierarchical superior can also held responsible. be held responsible for war crimes committed by subordinates. Finally, the case law has confirmed that there need be no direct causal relationship 12/2003 between a superior failing to take action and a subordinate committing a crime for the superior to be held responsible.

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Criminal procedure

The repression of war crimes, crimes against humanity, and genocide, whatever the nationality of the offender and the place where they are committed, is crucial to ensuring respect for international law and to the interests of justice. The chief responsibility for this repression lies with States. The substantive and procedural criminal law and the judicial system of each State must enable it to prosecute and bring to trial persons allegedly responsible for these crimes. States must also be able to offer the assistance required from them when procedures to that end are undertaken abroad or by an international jurisdiction. International law, especially in view of the very nature of these crimes, lays down certain conditions that prosecution and sentencing by national courts must meet. Persons accused of committing these crimes must benefit from a whole series of procedural safeguards. To the extent that these are respected, States are free to decide their own rules in this matter.

Prosecution of war crimes: a classic international humanitarian law, such as impartial and regularly constituted court, criminal procedure for specific grave breaches of the four Geneva the assignment of competence to crimes Conventions of 1949 and their military or civilian jurisdiction is left to Additional Protocol I of 1977, for which the discretion of the States. It is by no In State practice there is generally no universal jurisdiction must be provided means easy to declare a priori or as a procedure relating specifically to the in legislation. general rule that one solution is repression of offences under preferable to another. With a view to the international law. The prosecution and Then it must be decided whether repression of war crimes, national sentencing of these offences generally prosecutions must be brought; the main legislators will nevertheless bear in mind follow the usual procedure in the courts factor in such a decision should be the the following considerations: of jurisdiction, whether they be military quality of the evidence gathered and the or ordinary. However, the nature of the probability of obtaining a conviction. • war crimes can be committed by crimes to be prosecuted and the specific civilians as well as by military characteristics of the system of When the defendant is a member of the personnel; repression provided for must be taken armed forces, it must be decided • they can be prosecuted in time of into account, with regard to: whether military or ordinary law is peace as well as in time of war, applicable and by what court he will be especially where the principle of • initiating prosecution; tried. universal jurisdiction is applied; • choice of competent court; • they involve carrying out • taking / evaluation of evidence; The independence of the body charged investigations abroad or having • judicial guarantees; with implementing public action is of recourse to international judicial • cooperation and international legal crucial importance in ensuring an cooperation in cases where assistance. effective system for the repression of universal jurisdiction is applied or war crimes. In certain countries, for where judgment is passed on the example, the bringing of a criminal State’s own troops sent abroad. Initiating prosecution prosecution for war crimes is subject to the approval of an executive authority. Possible solutions depend on the War crimes may be committed by To overcome possible inactivity on the relationship between military and members of armed forces or by part of the government, for example for ordinary law and between military and civilians, on the national territory or reasons of political expediency, the civilian power within the organization of abroad, in the course of an international criteria to which the bringing of criminal the State. or non-international armed conflict. action is subject, or the justification of a Authorities desiring to prosecute a refusal to do so, should be set out in a person allegedly responsible for such clear and strict manner in national Taking / evaluation of evidence crimes must give prior consideration to legislation. Finally, it is important that a certain number of questions. the victims of war crimes be given easy Trials of offences committed abroad and direct access to justice. pose particular problems relating to the First, it must be determined whether the taking of evidence and to the right of the alleged act constitutes a criminal defence to review it. It is important to offence under the national criminal law, Choice of competent court look into these issues and, if necessary, and whether the national courts are to make provision for suitable competent to hear such cases. The International law takes no clear stand on procedures such as taking evidence by question of competent jurisdiction is the choice of competent court. While at video or executing letters rogatory particularly important for crimes the national level the establishment of abroad, and to bolster international committed outside the national territory, exceptional tribunals is generally in judicial cooperation agreements. especially serious violations of conflict with the requirement for an

To establish the defendant’s guilt in war (ICTY) and that of the International • the right of the accused to have the crimes cases, it must be demonstrated, Criminal Tribunal for Rwanda (ICTR) judgment pronounced publicly (Art. among other things, that the act in extend these guarantees to all persons 75.4(i), P I; Art. 76.4, ICC Statute); question occurred in the course of an brought before those courts (Arts 10, 20 • the right of the accused to be armed conflict or in connection with it. and 21, ICTY Statute; Arts 9, 19 and 20, informed of his rights of appeal (Art. National legislation should therefore ICTR Statute). The Statute of the 106, GC III; Art. 73, GC IV; Art. specify which authority is empowered to Special Court for Sierra Leone does the 75.4(j), P I; Art. 6.3, P II). qualify a given situation as an armed same for all persons prosecuted in that conflict. court (Arts 9 and 17). The Statute of the International Criminal Court (ICC) Cooperation, international legal In addition, victims should be allowed to clarifies and develops these guarantees assistance and extradition participate actively in the procedure. (Arts 20, 22, 23, 25, 66, 67, 76.4 and Like the accused and the witnesses, 81, and Rules of Procedure and Cooperation between States and with they should also benefit from protection Evidence). international is essential to if needed. Situations where resentment the smooth running of the system of and the risk of revenge are increasing These legal safeguards roughly repression of war crimes. Various forms would justify such a measure. correspond to those offered by of assistance may be required, from the instruments of law. taking of evidence abroad to the The need to protect military secrets Together with the procedural principles enforcement of foreign judgments. must also be taken into account in provided for by international criminal procedure, but confidentiality humanitarian law, they must be applied The need for mutual assistance is must not be invoked with the sole aim of without exception. The strictness of their especially evident in the case of preventing prosecution. In camera application must be recognized by offences where those allegedly proceedings may be held if necessary. national law. The main principles and responsible must be brought to trial or judicial guarantees are the following: extradited by States. Article 88 of Additional Protocol I provides for the Judicial guarantees laid down in • the principle of individual criminal broadest possible mutual legal international humanitarian law responsibility (Art. 75.4(b), P I; Art. assistance among States Parties in all 6.2(b), P II; Art. 25, ICC Statute); proceedings brought in respect of grave Persons accused of serious violations of • the principle of nullum crimen et breaches of the Geneva Conventions or any of the four Geneva Conventions (Art. 99.1, GC their Additional Protocols, and the (GC I-IV) or of Additional Protocol I (P I) III; Art. 75.4(c), P I; Art. 6.2(c), P II; specific obligation to cooperate in the are entitled to benefit from minimum Arts 22.1 and 23, ICC Statute); matter of extradition. Similarly, Articles legal safeguards laid down in these • the principle of non bis in idem (Art. 18 and 19 of the Second Protocol to the treaties (Art. 49, GC I; Art. 50, GC II; Art. 86, GC III; Art. 117.3, GC IV; Art. Hague Convention of 1954 for the 129, GC III; Art. 146, GC IV). Article 75 75.4(h), P I; Art. 6.2(a), P II; Art. 20, Protection of Cultural Property in the of Additional Protocol I contains a list of ICC Statute); Event of Armed Conflict concern guarantees benefiting persons protected • the right of the accused to be extradition and judicial cooperation. by these treaties and also persons judged by an independent and accused of war crimes. These impartial court and without undue The Statute of the ICTY and that of the guarantees are minimal requirements delay (Art. 84.2, GC III; Art. 75.4, P ICTR also contain provisions on that do not in any way prevent a more I; Art. 6.2, P II; Art. 67.1 and cooperation and legal assistance that favourable treatment from being granted 67.1(c), ICC Statute); States must offer at all stages of in accordance with other provisions of • the right of the accused to be proceedings brought by these tribunals the Geneva Conventions and of informed of the offence he is (Art. 29, ICTY Statute; Art. 28, ICTR Additional Protocol I. charged with (Art. 104.2, GC III; Art. Statute). Many States have passed 71.2, GC IV; Art. 75.4(a), P I; Art. legislation for this purpose. International humanitarian law 6.2(a), P II; Art. 67.1(a), ICC applicable to non-international armed Statute; The ICC’s effectiveness depends in conflicts prohibits the passing of • the rights and means of defence, large part on the cooperation of States. sentences and the carrying out of for example the right to be assisted The States party to the ICC Statute executions in violation of “judicial by a qualified lawyer freely chosen have a general obligation to cooperate guarantees which are recognized as and by a competent interpreter (Art. 86) and must ensure that there are indispensable” and which it specifies (Arts 99 and 105, GC III; Arts 72 procedures available under their (Art. 3 common to the Geneva and 74, GC IV; Art. 75.4(a) and (g), national law for all of the forms of Conventions). Additional Protocol II of P I; Art. 6.2(a), P II; Art 67.1(b), (d), cooperation specified in the Statute 1977 (P II) stipulates, concerning (e) and (f), ICC Statute); (Art. 88). offences committed in connection with • the presumption of innocence (Art. an armed conflict, that no sentence may 75.4(d), P I; Art. 6.2(d), P II; Art. 66, be passed and no penalty executed in ICC Statute); the absence of a conviction previously • the right of the accused to be pronounced by a court offering the present at his trial (Art. 75.4(e), P I; essential guarantees of independence Art. 6.2(e), P II; Art. 67.1(d), ICC and impartiality. In addition, it spells out Statute); the procedural safeguards that must be • the right of the accused not to respected (Art. 6). testify against himself or to confess

guilt (Art. 75.4(f), P I; Art. 6.2(e), P The Statute of the International Criminal II; Art. 67.1(g), ICC Statute); 12/2003 Tribunal for the former Yugoslavia

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Cooperation with extradition and judicial assistance in criminal matters

In order to ensure full respect for international humanitarian law, it is important that violations are punished. The repression of these violations often requires the cooperation of different States or instances, not only because the persons involved in the trials (the accused, the victims, the witnesses, etc.) may be of different nationalities, or in different countries, but also because the most serious violations of international humanitarian law, such as war crimes, are considered to be attacks on the international community as a whole. From this standpoint, international law provides for cooperation procedures in matters of extradition, international judicial cooperation, and cooperation with the ad hoc international criminal tribunals and the International Criminal Court.

Extradition requested, exceptions connected with conducted abroad and the execution the political nature of the crime, of foreign criminal sentences. The obligation of the States to statute of limitations or other cooperate in extradition matters is conditions to which extradition is A system of repression such as that inherent in the aut dedere aut subject under domestic law (e.g. the laid down by international judicare obligation of the repression existence of a bilateral or multilateral humanitarian law for war crimes, mechanism laid down in the Geneva extradition treaty). Additional Protocol which is based on the principle of Conventions of 1949 for serious I did not help to close this gap, universal competence with regard to violations of the treaties. The although Article 78 of the draft treaty the prosecution and judgement of possibility of handing over accused precluded the exception of political criminal acts and is, in consequence, persons for trial by another crime as an obstacle to extradition in of a cross-border nature, will owe Contracting Party wishing to the case of grave violations. much of its effectiveness to the quality prosecute them is an opportunity of the cooperation and mutual judicial offered to the State on whose territory This question needs to be settled by assistance between the prosecuting or in whose power such persons may appropriate national legislation which, authorities of the different States. be to fulfil its treaty obligations. in the case of grave breaches of international humanitarian law, would In the context of incorporating This option is further confirmed by the rule out the political motives or aims punishments for breaches of wording of Art. 88.2 of Additional of an offence as a justification for international humanitarian law into Protocol I, which explicitly establishes refusing extradition. national law, States will have to that the High Contracting Parties have evaluate the legislation in force in a duty to cooperate in extradition matters of extradition and judicial matters. This duty includes the Judicial assistance in criminal cooperation and, if necessary, adapt it obligation to examine favourably any matters so as to fulfil the obligations imposed request for extradition from a country by international humanitarian law. with a proven legal interest in Cooperation in judicial assistance is prosecution, provided that the specifically considered in Article 88. 1 Finally, it should be noted that other conditions laid down by the law of the of Additional Protocol I, which treaties relevant for the protection of State requested are satisfied. stipulates that "the High Contracting persons and certain types of property Parties shall afford one another the in the event of armed conflict provide Though the Geneva Conventions greatest measure of assistance in for the possibility of extradition and provide for the possibility of connection with criminal proceedings impose the obligation to cooperate in extradition, they are silent on the brought in respect of grave breaches the prosecution of serious violations question of the application of the of the Conventions or of this of those instruments’ provisions. This exceptions traditionally provided for Protocol." The parties to the Protocol is the case, for example, in the under national law, which may prove must help each other in the most Second Protocol to the Hague an obstacle in certain circumstances. complete manner possible in any Convention of 1954 for the protection In this context, we might mention procedure relating to a grave breach. of cultural property in the event of examples such as the nationality of Such assistance covers both mutual armed conflict (Arts 18 and 19). the person whose extradition is assistance for criminal proceedings

Cooperation with the ad hoc • the examination of places or international criminal tribunals Article 86 of the Statute stipulates that sites, including the exhumation the States Parties must cooperate and examination of grave sites; The United Nations set up fully with the ICC in its investigation • the execution of searches and international criminal tribunals to try and prosecution of crimes within its seizures; crimes committed in the former jurisdiction, namely genocide, crimes • the provision of records and Yugoslavia (International Criminal against humanity, war crimes and the documents; Tribunal for the former Yugoslavia – crime of aggression (once a provision • the protection of victims and ICTY) and in Rwanda (International is adopted defining that crime). The witnesses and the preservation of Criminal Tribunal for Rwanda – ICTR). ICC may also invite any State not evidence; These tribunals have primacy over party to its Statute to provide • the identification, tracing and national courts: at any stage of the assistance on the basis of an ad hoc freezing or seizure of proceeds, procedure, they may formally request arrangement, an agreement or on any property and assets and national courts to defer to their other appropriate basis (Art. 87.5(a), instrumentalities of crimes for the competence (Art. 9.2, ICTY Statute; ICC Statute). purpose of eventual forfeiture, Art. 8.2, ICTR Statute). Articles 29 without prejudice to the rights of and 28 of the ICTY and ICTR The ICC may thus transmit a request bona fide third parties; and Statutes, respectively, oblige States to for the arrest and surrender to the ICC • any other type of assistance cooperate with these tribunals in the of a person to any State on the which is not prohibited by the law investigation and prosecution of territory of which that person may be of the requested State, with a persons accused of committing found, and must request the view to facilitating the serious violations of international cooperation of that State in the arrest investigation and prosecution of humanitarian law. States must comply and surrender of such a person (Art. crimes within the jurisdiction of without delay with any request for 89, ICC Statute). It may also request the ICC (Art. 93.1, ICC Statute). assistance issued by a trial chamber, the provisional arrest of the person including in particular: sought, pending presentation of the According to Article 88 of the Statute, request for surrender and the States Parties must ensure that there • the identification and location of documents supporting the request as are procedures available under their persons; specified in Article 91 (Art. 92, ICC national law for all of these forms of • the taking of testimony and the Statute). cooperation. production of evidence; • the service of documents; In addition, States must comply with Conversely, upon the request of a • the arrest or detention of requests for assistance concerning: State party to the Statute, the ICC persons; may provide assistance to that State • • the surrender or the transfer of the identification and in an investigation into or a trial in the accused to the tribunal in whereabouts of persons or the respect of conduct which constitutes a question. location of items; crime within the jurisdiction of the ICC • the taking of evidence, including or which constitutes a serious crime testimony under oath, and the under the national law of the Cooperation with the International production of evidence, including requesting State. The ICC may also Criminal Court (ICC) expert opinions and reports grant a request for assistance from a necessary to the ICC; State which is not party to the ICC The ICC’s jurisdiction is • the questioning of any person Statute (Art. 93.10, ICC Statute). complementary to that of States: the being investigated or prosecuted; ICC will exercise its jurisdiction only • the service of documents, Finally, the ICC may also ask any when a State is unwilling or unable including judicial documents; intergovernmental organization to genuinely to carry out the • facilitating the voluntary provide information, documents, or investigation or prosecution (Art. appearance of persons as other forms of assistance (Art. 87.6, 17.1(a), 1998 Rome Statute of the witnesses or experts before the ICC Statute). ICC). The ICC’s effectiveness will ICC; depend to a large extent on the • the temporary transfer of persons cooperation of States, the terms and as provided in Article 93, conditions for which are laid down in paragraph 7; 12/2003 Part 9 of the ICC Statute.