ICC-02/04-14-US-Exp-Anxa 23-06-2005 1/312 UM ICC-02/04

ICC-02/04-14-AnxA 13-02-2007 1/312 SL PT ICC-02/04-14-US-Exp-AnxA 23-06-2005 1/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

Exhibit A ICC-02/04-14-AnxA 13-02-2007 2/312 SL PT ICC-02/04-14-US-Exp-AnxA 23-06-2005 2/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

TABLE OF AUTHORITIES

1. Materials related to Interpretation of Statutory Provisions in Light of Object and Purpose.

a. Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, Art. 31 General rule of interpretation and Art. 32 Supplementary means of interpretation.

b. Tfie Corfu Channel Case, Judgment, 9 April 1949,1.CJ Reports 1947 - 1949 (relevant portion: page 24, lîrst paragraph, 4th line till end of the paragraph).

c. Reparation for Injuries suffered in the service of the United Nations, Advisory Opinion, 11 April 1949,1.C.J Reports 1947 - 1949 (relevant portion: page 182 final paragraph, the two last sentences of the paragraph).

2. Drafting History of Rule 176

a. Frederik Harhoff and Phakiso Mochochoko, "International Cooperation and Judicial Assistance" in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Roy S. Lee et al. eds., 2001 ) pp v, 637 - 643 (relevant portion: IIA, IIA1).

b. Proposal submitted by Australia: Draft Rules of Procedure and Evidence of the International Criminal Court (26 January 1999) - PCINCC/1999/DP.l. pp l - 8, 62 - 65.

c. Proposal submitted by Italy concerning Part 9 of the Rome Statute of the International Criminal Tribunal, on international cooperation and judicial assistance (23 August 1999) - PCNICC/1999/WGRPE(9)/DP.l pp l - 5 (relevant portion: page 3-4 Rule 9.3, 9.5).

d. Proposal submitted by France concerning part 9 of the Rome Statute of the International Criminal Court on international cooperation and judicial assistance (19 November 1999) - PCN1CC/1999/WGRPE(9)/DP.2 pp l - 7 (relevant portion: page 2 Rule 9.1).

e. Discussion paper submitted by the Coordinator concerning Part IX of the Rome Statute of the International Criminal Court on international cooperation and judicial assistance (7 December 1999) - PCNICC/1999/WGRPE(9)/RT.l pp l - 2 (relevant portion: page 1 Rule 9.1).

f. Report of the Preparatory Commission for the International Criminal Court: Addendum - Part I: Finalized draft text of the Rules of Procedure and Evidence (2 November 2000) - PCNICC/2000/l/Add.l pp 1- 11, 84 (relevant portion: page 84 Rule 176). ICC-02/04-14-AnxA 13-02-2007 3/312 SL PT ICC-02/04-14-US-Exp-AnxA 23-06-2005 3/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

3. Drafting History of Articles 87 and 89

a. Report of the International Law Commission on the work of its forty-sixth session (2 May - 22 July 1994) [1 September 1994] - A/49/10, pp 129 - 138 (relevant portion: page 131 Article 53).

b. Report of the Preparatory Committee on the Establishment of the International Criminal Court: Volume 1 (Proceedings of the Preparatory Committee during March-April and August 1996) [13 September 1996] -A/51/22 (Supplement 22), pp 66 - 73 (relevant portion: pages 67 - 68 paragraph '323' and page 71 paragraph '341').

c. Report of the Preparatory Committee on the Establishment of an International Criminal Court: Volume II (Compilation of Proposals) [13 September 1996] - A/51/22 (Supplement 22A), pp viii, 128-138, 263-286 (relevant portion: page 131 paragraph '2', page 132 paragraph '(a)' to '(c)', page 133 paragraph commencing "The Prosecutor shall transmit..." and paragraph 'D', page 136 paragraph '2', page 137 paragraph '2', page 138 paragraph '3 bis', page 246 paragraph 'B.2' and footnote 81, page 247 paragraph 'C.3', page 251 paragraph '2', page 252 paragraph 'B.2' and footnote 91, page 253 paragraph commencing "Scope of assistance...", page 263 paragraph ' 1 ', page 264 paragraph 'II A', page 282 paragraph '2', page 283 paragraph '4(a)').

d. Revised Abbreviated Compilation - Article 28: Arrest, Preparatory Committee on the Establishment of an International Criminal Court 4-15 August 1997, Working Group on Procedural Matters (8 September 1997) - A/AC.249/1997/WG.4/CRP.10 pp 1 - 4 (relevant portion: page 2 paragraph '1 bis').

e. Abbreviated Compilation of Proposals on International Cooperation and Judicial Assistance (ILC Draft Statute Part 7) and Enforcement (ILC Draft Statute Part 8), Preparatory Committee on the Establishment of an International Criminal Court 1-12 December 1997, Working Group on International Cooperation and Judicial Assistance (25 November 1997) - A/AC.249/1997/WG.5/CRP.1. pp l - 4 (relevant portion: page 2 Article 51 and footnotes 1 and 4, page 3 Article 52(1)).

f. Abbreviated Compilation of Proposals on International Cooperation and Judicial Assistance (ILC Draft Statute Part 7) and Enforcement (ILC Draft Statute Part 8): Addendum, Preparatory Committee on the Establishment of an International Criminal Court 1-12 December 1997, Working Group on International Cooperation and Judicial Assistance (25 November 1997) - A/AC.249/1997/WG.5/CRP.l.Addl pp l - 9 (relevant portion: pages 1 - 2 paragraph 'l(a)' and footnote 26). ICC-02/04-14-AnxA 13-02-2007 4/312 SL PT ICC-02/04-14-US-Exp-AnxA 23-06-2005 4/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

g. Draft Revised Abbreviated Compilation - Article 28: Arrest, Preparatory Committee on the Establishment of an International Criminal Court 1-12 December 1997, Working Group on International Cooperation and Judicial Assistance (26 November 1997) - A/AC.249/1997/WG.4/DP.1 pp l - 3 (relevant portion: page 3 paragraph '5').

h. Report of the Working Group on Procedural Matters, Preparatory Committee on the Establishment of an International Criminal Court 1-12 December 1997, Working Group on Procedural Matters (11 December 1997) - A/AC.249/1997/WG.4/CRP. 11, pp l - 4 (relevant portion: page 3 paragraph '2(b)' and '4').

i. Report of the Working Group on Procedural Matters: Revised Abbreviated Compilation Article 28: Arrest, Preparatory Committee on the Establishment of an International Criminal Court 1-12 December 1997, Working Group on Procedural Matters (12 December 1997) - A/AC.249/1997/WG.4/CRP. 11/Corr.l pp 1 - 2 (relevant portion: page 1 paragraph '6').

j. Decisions taken by the Preparatory Committee at its session held from 1 to 12 December 1997, Preparatory Committee on the Establishment of an International Criminal Court 1-12 December 1997 (18 December 1997)- A/AC.249/1997/L.9/Rev. 1, pp 23-24, 40 - 59 (relevant portion: page 24 Article 28(4) and footnote 10, page 41 Article 51 and footnote 2, and page 43 Article 53 and footnote 13).

k. Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands, Preparatory Committee on the Establishment of an International Criminal Court 16 March - 3 April 1998 (4 February 1998) - A/AC.249/1998/L.13,pp 1, 99-103, 141 - 145 (relevant portion: page 101 Article 52(4) and footnote 173, page 103 Article 54(1), page 141 Article 77, 78(1) and footnote 269, and page 144 Article 79(1)).

1. Report of the Preparatory Committee on the Establishment of an International Criminal Court Addendum, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, Italy 16 June- 17 July 1998 (14 April 1998)-A/CONF.183/2/Add.l, pp l -8, 86-88, 131 - 139 (relevant portions: page 88 Article 59(4) and footnote 17, page 131 Article 85 and footnote 2).

4. Commentary on Requests for Cooperation and Requests for Arrest and Surrender

a. Goran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligation of States, Intersentia 2002, Chapter 4, Sections 2.2-3.1, 4.1- 4.3 (relevant portion: section 2.2. second paragraph, section 3, 3.1.2 first paragraph and final two paragraphs, section 3.1.3. first two paragraphs). ICC-02/04-14-AnxA 13-02-2007 5/312 SL PT ICC-02/04-14-US-Exp-AnxA 23-06-2005 5/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

b. Informal expert paper: Fact-finding and investigative functions of the office of the Prosecutor, including international cooperation, ICC-OTP 2003 (relevant portion: paragraphs 54, 82).

5. Orders and Warrants of Arrest of the International Criminal Tribunal for the Former Yugoslavia

a. Prosecutor v Ljubomir Borovcanin, Order Confirming Indictment Pursuant to Article 19, Order Concerning Non-Disclosure, and Order Issuing Arrest Warrant, ICTY, 6 September 2002, IT-02-64-I (relevant portion: page 1).

b. Prosecutor v Gojko Jankovic, Warrant of Arrest & Order for Surrender; Order for Transmission of Warrant of Arrest & Order for Surrender, ICTY, 6 September 2002, IT-96-23/2-I (relevant portion: page 3).

c. Prosecutor v Mitar Rasevic, Warrant of Arrest & Order for Surrender; Order for Transmission of Warrant of Arrest & Order for Surrender, ICTY, 6 September 2002, ΓΤ-97-25-Ι (relevant portion: page 3).

d. Prosecutor v Savo Todovic, Warrant of Arrest & Order for Surrender; Order for Transmission of Warrant of Arrest & Order for Surrender, ICTY, 6 September 2002, IT-97-25-I (relevant portion: page 3).

e. Prosecutor v Janko Bobetko, Warrant of Arrest & Order for Surrender, ICTY, 20 September 2002, IT-02-62-I (relevant portion: page 2).

f. Prosecutor v Ratko Mladic, Order Granting Leave to File an Amended Indictment and Confirming the Amended Indictment, ICTY, 8 November 2002, IT-95-5/18-I (relevant portion: paragraph 30).

g. Prosecutor v Fatmir Limaj aka Celiku, Haradin Bala aka Shala, Isak Musliu aka Qerqiz, Agim Murtezi aka Murrizi (Confidential), Confirmation of Indictment, ICTY, 27 January 2003, IT-03-66-I (relevant portion: page 2).

6. Statute of the International Criminal Tribunal for the Former Yugoslavia, Articles 24-29 (relevant portion: Article 29).

7. Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, Rules 55-61. ICC-02/04-14-AnxA 13-02-2007 6/312 SL PT ICC-02/04-14-US-Exp-AnxA 23-06-2005 6/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

INTERNATIONAL COURT OF JUSTICE

YEAR 1949:rry . Apri. l 9th. General List April 9th, 1949. No. i. THE CORFU CHANNEL CASE (MERITS)

International responsibility for explosion of mines in territorial waters.—Connivance with another State ; 'evidence.—Minelaying by persons unknown.—Knowledge of minelaying by State party.to proceedings : control of territory as ground for responsibility ; its influence on the choice of means of proof ; indirect evidence, concordant inferences of fact.—Breach of obligations resulting from knowledge of minelaying, grounds for responsibility.—Court's jurisdiction to assess amount of compensation ; interpretation of Special Agreement ; subsequent attitude of Parties.

Right of passage of warships in time of. peace through straits connecting two parts of the high seas.—International custom.—Straits in which right of passage exists.—North Corfu Channel.—Innocent passage ; purpose of passage and manner of its execution.—Production of documents at Court's request ; refusal to produce ; Article 49 of Statute of Court and Article 54 of Rules.—Mine sweeping undertaken in territorial waters contrary to wish of territorial State ; justification derived from theory of intervention and notion of self-help.—-Violation of territorial sovereignty ; international responsibility ; satisfaction in form of a declaration by the Court of violation of right.

JUDGMENT Present : A cling President GUERRERO ; President BASDEVANT ; Judges ALVAREZ, FABELA, HACKWORTH, WINIARSKI, ZoRiéié, DE VISSCHER, Sir Arnold McNAiR, KLAESTAD, BADAWI PASHA, KRYLOV, READ, Hsu Mo, AZEVEDO ; M. EÊER, Judge ad hoc. ICC-02/04-14-AnxA 13-02-2007 7/312 SL PT ICC-02/04-14-US-Exp-AnxA 23-06-2005 7/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 5

In the Corfu Channel case, between the Government of the United Kingdom of Great Britain and Northern Ireland, represented by : Sir Eric Beckett, K.C.M.G., K.C., Legal Adviser to the Foreign Office, as Agent and Counsel, assisted by The Right Honourable Sir Hartley Shawcross, K.C., M.P., Attorney-General, replaced on November i5tn, 1948, by Sir Frank Soskice, K.C., M.P., Solicitor-General ; Mr. C. H. M. Waldock, Professor of international law in the University of Oxford, Mr. R. O. Wilberforce, Mr. J. Mervyn Jones, and Mr. M. E. Reed (of the Attorney-General's Office), members of the English Bar, as Counsel, atid the Government of the People's Republic of Albania, represented by : M. Kahreman Ylli, Envoy Extraordinary arid Minister Plenipotentiary of Albania in Pa'ris, as Agent, replaced on February I4th, 1949, by M. Behar Shtylla, Envoy Extraordinary and Minister Pleni- potentiary of Albania in Paris, assisted by M. Pierre Cot, Professeur agrégé of the Faculties of Law of France, and Maître Joe Nordmann, of the Paris Bar, as Counsel ; and

Maître Marc Jacquier, of the Paris Bar, and Maître Paul Villard, of the Paris Bar, as Advocates.

THE COURT, composed as above, delivers the following judgment : By a Judgment delivered on March 25th, 1948 (I.C. J. Reports 1947- 1948, p. 15), in the Corfu Channel case, in proceedings instituted on May 22nd, 1947, by an application of the Government of the United Kingdom of Great Britain and Northern Ireland against the Govern- ment of the People's Republic of Albania, the Court gave its decision 5 ICC-02/04-14-AnxA 13-02-2007 8/312 SL PT ICC-02/04-14-US-Exp-AnxA 23-06-2005 8/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS)· 6 on the Preliminary Objection filed on December gih, 1947, by the latter Government. The Court rejected the Objection and decided that proceedings on the merits should continue, and fixed the time-limits for the filing of subsequent pleadings as follows : for the Counter-Memorial of Albania : June I5th, 1948 ; for the Reply of the United Kingdom : August 2nd, 1048 ; for the Rejoinder of Albania : September 20th, 1948. Immediately after the delivery of the judgment, the Court was notified by the Agents of the Parties of a Special Agreement, which is as follows : "The Government of the People's Republic of Albania, represented by their Agent Mr. Kahreman Ylli, Envoy Extraordinary and Minister Plenipotentiary of Albania at Paris ; and the Government of the United Kingdom of Great Britain and Northern Ireland, represented by their Agent, Mr. W. E. Beckett, C.M.G., K.C., Legal Adviser to the Foreign Office ; Have accepted the present Special Agreement, which has been drawn up as a result of the Resolution of the Security Council of the 9th April, 1947, for the purpose of submitting to the Inter- national Court of Justice for decision the following questions :— (1) Is Albania responsible under international law for the explosions which occurred on the 22nd October 1946 in Albanian waters and for the damage and loss of human life which resulted from them and is there any 'duty to pay compensation ? (2) Has the United Kingdom under international law violated the sovereignty of the Albanian People's Republic by reason of the acts of the Royal Navy in Albanian waters on the 22nd October and on the I2th and ißth November 1946 and is there any duty to give satisfaction ? The Parties agree that the present Special Agreement shall be notified to the International Court of Justice immediately after the delivery on the 25th March of its judgment on the question of jurisdiction. The Parties request the Court, having regard to the present Special Agreement, to make such orders with regard to procedure, in conformity with the Statute and the Rules of the Court, as the Court may deem fit, after having consulted the Agents of the Parties. In witness whereof the above-mentioned Agents, being duly authorized by their Governments to this effect, have signed the present Special Agreement. Done this 25th day of March, 1948, at midday, at The Hague, in English and French, both texts being equally authentic, in a single copy which shall be deposited with the International Court of Justice.'' On March 2&th, 1948 (I.C.J. Reports 1947-1948, p. 53), the Court made an Order in which it placed on record that the Special 6 ICC-02/04-14-AnxA 13-02-2007 9/312 SL PT ICC-02/04-14-US-Exp-AnxA 23-06-2005 9/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 7 Agreement now formed the basis of further proceedings before the Court, and stated the questions submitted to it for decision. The Court noted that the United Kingdom Government on October ist, 1947, that is within the time-limit fixed by the Court, had filed a Memorial with statements and submissions relating to the incident that occured on October 22nd 1046. It further noted that the Agents, having been consulted, declared that they agreed in requesting that the order and time-limits for the filing of the subsequent pleadings as fixed by the Judgment of March 25th, 1948, be maintained. The Court confirmed this order and these time-limits. The Counter-Memorial, Reply and Rejoinder were filed within these limits. The case was thus ready for hearing on September 20th, 1948, and the commencement of the oral proceedings was then fixed for November 5th, 1948. As the Court did not include upon the Bench a judge of Albanian nationality, the Albanian Government availed itself during the proceedings on the Preliminary Objection of the right provided by Article 31, paragraph 2, of the Statute, and chose M. Igor Daxner, Doctor of Law, President of a Chamber of the Supreme Court of Czechoslovakia, as Judge ad hoc. On October 28th, 1948, the Registrar was informed that Judge Daxner was prevented by reasons of health from sitting on the date fixed. The Court decided on November 2nd, 1948, to fix a time-limit expiring on November 7th, within which the Albanian Government might notify the name of the. person whom it wished to choose as Judge ad hoc in place of Dr. Daxner, and to postpone the opening of the hearing until November gth. Within the time fixed the Albanian Government designated M. Bohuslav E<5er, Doctor of Law and Professor in the Faculty of Law at Brno, and delegate of the Czechoslovak Govern- ment to the International Military Tribunal at Nuremberg. Public sittings were held by the Court on the following dates : November, 1948, gth to I2th, isth to igth, aznd to 26th, 28th and agth ; December, 1948, ist to 4th, 6th to nth, ißth, I4th and I7th ; January, 1949, I7th to 22nd. In the course of the sittings from November gth to igth, 1948, and from January i7th to 22nd, 1949, the Court heard arguments by Sir Hartley Shawcross, K.C., Counsel, Sir Eric Beckett, K.C., Agent and Counsel, and Sir Frank Soskice, K.C., Counsel, on behalf of the United Kingdom ; and by M. Kahreman Ylli, Agent, and MM. J. Nordmann and Pierre Cot, Counsel, on behalf of Albania. In the course of the sittings from November 22nd to December I4th, 1948, the Court heard the evidence of the witnesses and experts called by each of the Parties in reply to questions put to them in examination and cross-examination on behalf of the Parties, and by the President on behalf of the Court or by a Member of the Court. The following persons gave evidence : ICC-02/04-14-AnxA 13-02-2007 10/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 10/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 8 Called by the United Kingdom : Commander E. R. D. Sworder, O.B.E., D.S.C., Royal Naval Volunteer Reserve, as witness and expert ; Karel Kovacic, former Lieutenant-Commander in the Yugoslav Navy, as witness ; Captain W. H. Selby, D.S.C., Royal Navy, as witness ; Commander R. T. Paul, C.B.E., Royal Navy, as witness ; Lieutenant-Commander P. K. Lankester, Royal Navy, as witness and expert ; Commander R. Mestre, French Navy, as-witness; Commander Q. P. Whitford, O.B.E., Royal Navy, as witness and expert ; Called by Albania : Captain Ali Shtino, Albanian Army, as witness ; First Captain Aquile Polena, Albanian Army, as witness ; Xhavit Muco, former Vice-Président of the Executive Committee of Saranda, as witness ; Captain B. I. Ormanov, Bulgarian Navy, as expert ; Rear-Admiral Raymond Moullec, French Navy, as expert.

Documents, including maps, photographs and sketches, were filed by both Parties, and on one occasion by the Parties jointly, both as annexes to the pleadings, and after the close of the written proceedings. On one occasion during the sittings when a photostat of an extract from a document was submitted, the Court, on No- vember 24th, 1948, made a decision in which it reminded both Parties of the provisions of Article 48 and Article 43, paragraph i, of the Rules of Court ; held that the document in question could be received only if it were presented in an original and complete form ; ordered that all documents which the Parties intended to use should previously be filed in the Registry ; and reserved the right to inform the Parties later which of these documents should be presented in an original, and which in certified true copy, form. Another decision as to the production of a series of new documents was given by the Court on December loth, 1948. This decision noted that the Parties were agreed as to the production of certain of these documents and that certain others were withdrawn ; authorized the production of certain other documents ; lastly, in the case of one of these documents, the examination 8 ICC-02/04-14-AnxA 13-02-2007 11/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 11/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 9 of which had been subjected to certain conditions, the Court's decision placed on record the consent of the other Party to its production and, in view of that consent, permitted its production, having regard to the special circumstances ; but the Court expressly stated that this permission could not form a precedent for the future \ By an Order of December I7th, 1948, the Court, having regard to the fact that certain points had been contested between the Parties which made it necessary to obtain an expert opinion, defined these points, and entrusted the duty of giving the expert opinion to a Committee composed of Commodore J. Bull of the Royal Norwegian Navy, Commodore S. A. Forshell of the Royal Swedish Navy, and^ Lieutenant-Commander S. J. W. Elfferich of the Royal Netherlands Navy. These Experts elected Com- modore Bull as their chairman, and filed their Report on January 8th, 1949, within the prescribed time-limit. By a decision read at a public sitting on January I7th, the Court requested the Experts to proceed to Sibenik in Yugoslavia and Saranda in Albania and to make on the land and in the waters adjacent to these places any investigations and experiments that they might consider useful with a view to verifying, completing, and, if necessary, modifying the answers given in their report of Jan- uary 8th. The Experts' second report—in which Commodore Bull did not join, having been unable to make the journey for reasons of health—was filed on February 8th, 1949. On Febru- ary loth, three members of the Court put questions to the Experts, to which the Experts replied on February I2th. At sittings held from January lyth to 22nd, 1949, the representatives of the Parties had an opportunity of commenting orally on the Experts' report of January 8th. They also filed written observations * concerning the further statements contained in the Report of February 8th and the replies of February I2th, as provided in the Court's decision of January lyth. The Parties' submissions, as formulated by their Agents or Counsel at the end of the hearings on the i8th, igth, 2ist and 22nd January, 1949, are as follows : Question (i) of the Special Agreement. On behalf of the United Kingdom:

"The Government of the United Kingdom asks the Court in this case to adjudge and declare as follows :

1 The list of documents in support produced by the Parties and accepted by the Court will be found in Annex ι to this Judgment. * See Annex ι for the Experts' Report of January Sth, the Court's decision of January i;th, the Experts' second Report of February Irth, the questions put by three members of the Court, and the Experts' replies of February i2th. ICC-02/04-14-AnxA 13-02-2007 12/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 12/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) IO (1) That, on October 22nd, 1946, damage was caused to His Majesty's ships Saumarez and Volage, which resulted in the death and injuries of 44, and personal injuries to 42, British officers and men by a minefield of anchored automatic mines in the international highway of the Corfu Strait in an area south-west of the Bay of Saranda ; (2) That the aforesaid minefield was laid between May I5th and October 22nd, 1946, by or with the connivance or knowledge of the Albanian Government ; (3) That (alternatively to 2) the Albanian Government knew that the said minefield was lying in a part of its territorial waters ; (4) That the Albanian Government did not notify the existence of these mines as required by the Hague Convention VIII of 1907 in accordance with the general principles of international law and humanity ; (5) That in addition, and as an aggravation of the conduct of Albania as set forth in Conclusions (3) and (4), the Albanian Government, or its agents, knowing that His Majesty's ships were going to make the passage through the North Corfu swept channel, and being in a position to observe their approach, and having omitted, as alleged in paragraph 4 of these conclusions, to notify the existence of the said mines, failed to warn His Majesty s ships of the danger of the said mines of which the Albanian Government or its agents were well aware ; (6) That in addition, and as a further aggravation of the conduct of Albania as set forth in Conclusions (3), (4), and (5), the permission of the existence without notification of the minefield in the North Corfu Channel, being an international highway, was a violation of the right of innocent passage which exists in favour of foreign vessels (whether warships or merchant ships) through such an international highway ; (7) That the passage of His Majesty's ships through the North Corfu Channel on October 22nd, 1946, was an exercise of the right of innocent passage, according to the law and practice of civilized nations ; (8) That even if, for any reason, it is held that conclusion (7) is not established, nevertheless, the Albanian Government is not thereby relieved of its international responsibility for the damage caused to the ships by reason of the existence of an unnotified minefield of which it had knowledge ; (9) That in the circumstances set forth in the Memorial as sum- marized in the preceding paragraphs of these Conclusions, the Albanian Government has committed a breach of its obligations under international law, and is internationally responsible to His Majesty's Government in the United Kingdom for the deaths, injuries and damage caused to His Majesty's ships and personnel, as set out more particularly in paragraph 18 of the Memorial and the Annexes thereto ;

10 ICC-02/04-14-AnxA 13-02-2007 13/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 13/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) II (10) That the Albanian Government is under an obligation to the Government of the United Kingdom to make reparation in respect of the breach of its international obligations as aforesaid ; (n) That His Majesty's Government in the United Kingdom has. as a result of the breach by the Albanian Government of its obligations under international law, sustained the following damage : Damage to H.M.S. Saur/tarex £750,000 Damage to H.M.S. Volage 75,000 Compensation for the pensions and other expenses incurred by the Government of the United Kingdom in respect of the deaths and injuries of naval personnel. . 50,000 £875,000" On behalf of the Albanian Government : [Translation,] "(i) Under the terms of the Special Agreement of March 25th, 1948, the following question has been submitted to the International Court of Justice : ''Is Albania responsible under international law for the explosions which occurred on the aznd October 1946 in Albanian waters and for the damage and loss of human life which resulted from them and is there any duty to pay compensation ?' The Court would not have jurisdiction, in virtue of this Special Agreement, to decide, if the case arose, on the claim for the assessment of the compensation set out in the submissions of the United Kingdom Government. (2) It has not been proved that the mines which caused the acci- dents of October 22nd, 1946, were laid by Albania. (3) It has not been proved that these mines were laid by a third Power on behalf of Albania. (4) It has not been proved that these mines were laid with the help or acquiescence of Albania. (5) It has not been proved that Albania knew, before the incidents of October 22nd, 1946, that these mines were in her territorial waters. (6) Consequently, Albania cannot be declared responsible, under international law, for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life which resulted from them. Albania owes no compensation to the United Kingdom Government." Question (2) of the Special Agreement. On behalf of the Albanian Government : [Translation.] "(i) Under the terms of the Special Agreement concluded on March 25th, 1948, the International Court of Justice has before it the following question : II ICC-02/04-14-AnxA 13-02-2007 14/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 14/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 12 'Has the United Kingdom under international law violated the sovereignty of the Albanian People's Republic by reason of the acts of the Royal Navy in Albanian waters on the 22nd October and on the izth and I3th November 1946, and is there any duty to give satisfaction?' (2) The coastal State is entitled, in exceptional circumstances, to regulate the passage of foreign warships through its territorial waters. (3) This rule is applicable to the North Corfu Channel. (4) In October and November, 1946, there existed, in this area, exceptional circumstances which gave the Albanian Govern- ment the right to require that foreign warships should obtain previous authorization before passing through its territorial waters. (5) The passage of several British warships through Albanian territorial waters on October 22nd, 1946, without previous authorization, constituted a breach of international law. (6) In any case that passage was not of an innocent character. (7) The British naval authorities were not entitled to proceed, on November I2th and ißth, 1946, to sweep mines in Albanian territorial waters without the previous consent of the Albanian authorities. (8) The Court should find that, on both these occasions, the Govern- ment of the United Kingdom of Great Britain and Northern Ireland committed a breach of the rules of international law and that the Albanian Government has a right to demand that it should give satisfaction therefor." On behalf of the United Kingdom Government :

"I ask the Court to decide that on neither head of the counter- claim has Albania made out her case, and that there is no ground for the Court to award nominal damages of one farthing or one franc." * * * By the first part of the Special Agreement, the following question is submitted to the Court : "(i) Is Albania responsible under international law for the explosions which occurred on the 22nd October ^940 in Albanian waters and for the damage and loss of human life which resulted from them and is there any duty to pay compensation ?" On October 22nd, 1946, a squadron of British warships, the cruisers Mauritius and Leander and the destroyers Saumarez and Volage, left the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait. The cruiser Mauritius was leading, followed by the destroyer Saumarez ; at a certain distance thereafter came the cruiser Leander followed by the destroyer Volage. Outside the Bay of Saranda, Saumarez struck a mine and was heavily damaged. Volage was 12 ICC-02/04-14-AnxA 13-02-2007 15/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 15/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 13 ordered to give her assistance and to take her in tow. Whilst towing the damaged ship, Volage struck a mine and was much damaged. Nevertheless, she succeeded in towing the other ship back to Corfu. Three weeks later, on November 13th, the North Corfu Channel was swept by British minesweepers and twenty-two moored mines were cut. Two mines were taken to Malta for expert examination. During the minesweeping operation it was thought that the mines were of the German GR type, but it was subsequently established that they were of the German GY type. The Court will consider first whether the two explosions that occurred on October 22nd, 1946, were caused by mines belonging to the minefield discovered on November ißth. It was pointed out on behalf of the United Kingdom Government that this minefield had been recently laid. This was disputed in the Albanian pleadings but was no longer disputed during the hearing. One of the Albanian Counsel expressly recognized that the minefield had been recently laid, and the other Counsel subsequently made a similar declaration. It was further asserted on behalf of the Albanian Government that the minefield must have been laid after October 22nd ; this would make it impossible at the same time to maintain that the minefield was old. The documents produced by the United Kingdom Government and the statements made by the Court's Experts and based on these documents show that the minefield had been recently laid. This is now established. The United Kingdom Government contended that the mines which struck the two ships on October 22nd were part of this minefield. This was contested by the Albanian Government, which argued that these mines may have been floating mines, coming from old minefields in the vicinity, or magnetic ground mines, magnetic moored mines, or German GR mines. It was also contested by them that the explosions occurred in the previously swept channel at the place where the minefield was discovered. The Albanian Government also contended that the minefield was laid after October 22nd, between that date and the minesweeping operation on iz-ißth November. On the evidence produced, the Court finds that the following facts are established : In October, 1944, the North Corfu Channel was swept by the British Navy and no mines were found in the channel thus swept, whereupon 'the existence of a safe route through the Channel was announced in November 1944. In January and February, 13 ICC-02/04-14-AnxA 13-02-2007 16/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 16/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 14 1945, the Channel was check -swept by the British Navy with negative results. That the British Admiralty must have considered the Channel to be a safe route for navigation is shown by the fact that on May I5th, 1946, it sent two British cruisers and on October 22nd a squadron through the Channel without any special measures of precaution against danger from moored mines. It was in this swept channel that the minefield was discovered on November I3th, 1946. It is further proved by evidence produced by the United Kingdom Government that the mining of Saumarez and Volage occurred in Albanian territorial waters, just at the place in the swept channel where the minefield was found, as indicated on the chart forming Annex 9 to the United Kingdom Memorial. This is confirmed by the Court's Experts, who consider it to be free from any doubt that the two ships were mined in approximately the position indicated on this chart.

It is established by the evidence of witnesses that the minefield consisted of moored contact mines of the German GY type. It is further shown by the nature of the damage sustained by the two ships, and confirmed by witnesses and experts, that it could not have been caused by floating mines, magnetic ground mines, magnetic moored mines, or German GR mines. The experts of the Court have stated that the nature of the damage excludes the faintest possibility of its cause being a floating mine ; nor could it have been caused by a ground mine. They also expressed the view that the damage must have been caused by the explosion of moored contact mines, each having a charge of approximately 600 Ibs. of explosives, and that the two ships struck mines of the same type as those which were swept on November I3th, 1946.

The Albanian Government put forward a suggestion that the minefield discovered on November I3th may have been laid after October 22nd, so that the explosions that occurred on this latter date would not have been caused by mines from the field in question. But it brought no evidence in support of this supposition. As it has been established that the explosions could only have been due to moored mines having an explosive charge similar to that contained in GY mines, there would, if the Albanian contention were true, have been at least two mines of this nature in the channel outside the Bay of Saranda, in spite of the sweep in October 1944 and the check-sweeps in January and February 1945 ; and these mines would have been struck by the two vessels at points fairly close to one another on October 22nd, 1946. Such a supposition is too improbable to be accepted. ICC-02/04-14-AnxA 13-02-2007 17/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 17/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 15

The Court consequently finds that the following facts are established. The two ships were mined in Albanian territorial waters in a previously swept and check-swept channel just at the place where a newly laid minefield consisting of moored contact German GY mines was discovered three weeks later. The damage sustained by the ships was inconsistent with damage which could have been caused by floating mines, magnetic ground mines, magnetic moored mines, or German GR mines, but its nature and extent were such as would be caused by mines of the type found in the minefield. In such circumstances the Court arrives at the conclusion that the explosions were due to mines belonging to that minefield.

Such are the facts upon which the Court must, in order to reply to the first question of the Special Agreement, give judgment as to Albania's responsibility for the explosions on October 22nd, 1946, and for the damage and loss of human life which resulted, and for the compensation, if any, due in respect of such damage and loss. To begin with, the foundation for Albania's responsibility, as alleged by the United Kingdom, must be considered. On this subject, the main position of the United Kingdom is to be found in its submission No. 2 : that the minefield which caused the explosions was laid between May isth, 1946, and October 22nd, 1946, by or with the connivance or knowledge of the Albanian Govern- ment. The Court considered first the various grounds for responsibility alleged in this submission. In fact, although the United Kingdom Government never abandoned its contention that Albania herself laid the mines, very little attempt was made by the Government to demonstrate this point. In the written Reply, the United Kingdom Government takes note of the Albanian Government's formal statement that it did not lay the mines, and was not in a position to do so, as Albania possessed no navy ; and that, on the whole Albanian littoral, the Albanian authorities only had a few launches and motor boats. In the light of these statements, the Albanian Government was called upon, in the Reply, to disclose the circumstances in which two Yugoslav war vessels, the Mljet and the Meljine, carrying contact mines of the GY type, sailed southward from the port of Sibenik on or about October i8th, and proceeded to the Corfu Channel The United Kingdom Government, having thus indicated the argument upon 15 ICC-02/04-14-AnxA 13-02-2007 18/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 18/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 16 which it was thenceforth to concentrate, stated that it proposed to show that the said warships, with the knowledge and connivance of the Albanian Government, laid mines in the Corfu Channel just before October 22nd, 1946. The facts were presented in the same light and in the same language in the oral reply by Counsel for the United Kingdom Government at the sittings on January i/th and i8th, 1949.

Although the suggestion that the minefield was laid by Albania was repeatecl in the United Kingdom statement in Court on January i8th, 1949, and in the final submissions read in Court on the same day, this suggestion was in fact hardly put forward at that time except pro memoria, and no evidence in support was furnished. In these circumstances, the Court need pay no further attention to this matter. The Court now comes to the second alternative argument of the United Kingdom Government, namely, that the minefield was laid with the connivance of the Albanian Government. According to this argument, the minelaying operation was carried out by two Yugoslav warships at a date prior to October 22nd, but very near that date. This would imply collusion between the Albanian and the Yugoslav Governments, consisting either of a request by the Albanian Government to the Yugoslav Government for assistance, or of acquiescence by the Albanian authorities in the laying of the mines. In proof of this collusion, the United Kingdom Government relied on the evidence of Lieutenant-Commander Kovacic·, as shown in his affidavit of October 4th, 1948, and in his statements in Court at the public sittings on November 24th, 25th, 20th and 27th, 1948. The Court gave much attention to this evidence and to the documentary information supplied by the Parties. It supplemented and checked all this information by sending two experts appointed by it to Sibenik : Commodore S. A. Forshell and Lieutenant- Commander S. J. W. Elfferich. Without deciding as to the personal sincerity of the witness Kovacic, or the truth of what he said, the Court finds that the facts stated by the witness from his personal knowledge are not sufficient to prove what the United Kingdom Government considered them to prove. His allegations that he saw mines being loaded upon two Yugoslav minesweepers at Sibenik and that these two vessels departed from Sibenik about October i8th and returned a few days after the occurrence of the explosions do not suffice to constitute decisive legal proof that the mines were laid by these two vessels in Albanian waters off Saranda. The statements attributed It) ICC-02/04-14-AnxA 13-02-2007 19/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 19/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 17 by the witness Kovacic to third parties, of which the Court has received no personal and direct confirmation, can be regarded only as allegations falling short of conclusive evidence. A charge of such exceptional gravity against a State would require a degree of certainty that has not been reached here. Apart from Kovacic's evidence, the United Kingdom Govern- ment endeavoured to prove collusion between Albania and Yugo- slavia by certain presumptions of fact, or circumstantial evidence, such as the possession, at that time, by Yugoslavia, and by no other neighbouring State, of GY mines, and by the bond of close political and military alliance between Albania and Yugoslavia, resulting from the Treaty of friendship and mutual assistance signed by those two States on July gth, 1946. The Court considers that, even in so far as these facts are established, they lead to no firm conclusion. It has not been legally established that Yugoslavia possessed any GY mines, and the origin of the mines laid in Albanian territorial waters remains a matter for conjecture. It is' clear that the existence of a treaty, such as that of July gth, 1946, however close may be the bonds uniting its signatories, in no way leads to the conclusion that they participated in a criminal act. On its side, the Yugoslav Government, although not a party to the proceedings, authorized the Albanian Government to produce certain Yugoslav documents, for the purpose of refuting the United Kingdom contention that the mines had been laid by two ships of the Yugoslav Navy. As the Court was anxious for full light to be thrown on the facts alleged, it did not refuse to receive these documents. But Yugoslavia's absence from the proceedings meant that these documents could only be admitted as evidence subject to reserves, and the Court finds it unnecessary to express an opinion upon their probative value. The Court need not dwell on the assertion of one of the Counsel for the Albanian Government that the minefield might have been laid by the Greek Government. It is enough to say that this was a mere conjecture which, as Counsel himself admitted, was based on no proof. In the light of the information now available to the Court, the authors of the minelaying remain unknown. In any case, the task of the Court, as defined by the Special Agreement, is to decide whether Albania is responsible, under international law, for the explosions which occurred on October 22nd, 1946, and to give judgment as to the compensation, if any. Finally, the United Kingdom Government put forward the argument that, whoever the authors of the minelaying were, it could not have been done without the Albanian Government's knowledge.

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THE CORFU CHANNEL CASE (MERITS) 18 It is clear that knowledge of the minelaying cannot be imputed to the Albanian Government by reason merely of the fact that a minefield discovered in Albanian territorial waters caused the explosions of which the British warships were the victims. It is true, as international practice shows, that a State on whose territory or in whose waters an act contrary to international law has occurred, may be called upon to give an explanation. It is also true that that State cannot evade such a request by limiting itself to a reply that it is ignorant of the circumstances of the act and of its authors. The State may, up to a certain point, be bound to supply particulars of the use made by it of the means of information and inquiry at its disposal. But it cannot be concluded from the mere fact of the control exercised by a State over its territory and waters that that State necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should have known, the authors. This fact, by itself and apart from.other circumstances, neither involves prima facie responsibility nor shifts the burden of proof. On the other hand, the fact of this exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive control, the other State, the. victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect evidence is admitted in all systems of law, and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion.

The Court must examine therefore whether it has been established by means of indirect evidence that Albania has knowledge of minelaying in her territorial waters independently of any connivance on her part in this operation. The proof may be drawn from inferences of fact, provided that they leave no room for reasonable doubt. The elements of fact on which these inferences can be based may differ from those which are relevant to the question of connivance. In the present case, two series of facts, which corroborate one another, have to be considered : the first relates to Albania's attitude before and after the disaster of October 22nd, 1946 ; the other concerns the feasibility of observing minelaying from the Albanian coast. i. It is clearly established that the Albanian Government constantly kept a close watch over the waters of the North Corfu Channel, at any rate after May 1946. This vigilance is proved 18 ICC-02/04-14-AnxA 13-02-2007 21/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 21/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) IQ by the declaration of the Albanian Delegate in the Security Council on February igth, 1947 (Official Records of the Security Council, Second Year, No. 16, p. .328), and especially by the diplomatic notes of the Albanian Government concerning the passage of foreign ships through its territorial waters. This vigilance sometimes went so far as to involve the use of force : for example the gunfire in the direction of the British cruisers Orion and Superb on May I5th, 1946, and the shots fired at the U.N.R.R.A. tug and barges on October 29th, 1946, as established by the affidavit of Enrico Bargellini, which was not seriously contested. The Albanian Government's notes are all evidence of its intention to keep a jealous watch on its territorial waters. The note verbale addressed to the United Kingdom on May 2ist, 1946, reveals the existence of a "General Order", in execution of which the Coastal Commander gave the order to fire in the direction of the British cruisers. This same note formulates a demand that "permission" shall be given, by the Albanian authorities, for passage through territorial waters. The insistence on "formalities" and "permission" by Albania is repeated in the Albanian note of June igth. As the Parties agree that the minefield had been recently laid, it must be concluded that the operation was carried out during the period of close watch by the Albanian authorities in this sector. This conclusion renders the Albanian Government's assertion of ignorance a priori somewhat improbable. The Court also noted the repiy of Captain Ali Shtino to a question put by it ; this reply shows that the witness, who had been called on to replace the Coastal Defence Commander for a period of thirteen to fifteen days, immediately before the events of October 22nd, had received the following order : "That the look-out posts must inform me of every movement [in the Corfu Channel], and that no action would be taken on our part." The telegrams sent by the Albanian Government on Novem- ber isth and November 27th, 1946, to the Secretary-General of the United Nations, at a time when that Government was fully aware of the discovery of the minefield in Albanian territorial waters, are especially significant of the measures taken by the Albanian Government. In the first telegram, that Government raised the strongest protest against the movements and activity of British naval units in its territorial waters on November i2th and ißth, 1946, without even mentioning the existence of a minefield in these waters. In the second, it repeats its accusations against the United Kingdom, without in any way protesting against the laying of this minefield which, if effected without Albania's consent, constituted a very serious violation of her sovereignty. Another indication of the Albanian Government's knowledge consists in the fact that that Government did not notify the 19 ICC-02/04-14-AnxA 13-02-2007 22/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 22/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 2O presence of mines in its waters, at the moment when it must have known this, at the latest after the sweep on November i3th, and further, whereas the Greek Government immediately appointed a Commission to inquire into the events of October 22nd, the Albanian Government took no decision of such a nature, nor did it proceed to the judicial investigation incumbent, in such a case, on the territorial sovereign. This attitude does not seem reconcilable with the alleged ignorance of the Albanian authorities that the minefield had been laid in Albanian territorial waters. It could be explained if the Albanian Government, while knowing of the minelaying, desired the circumstances of the operation to remain secret.

2. As regards the possibility of observing minelaying from the Albanian coast, the Court regards the following facts, relating to the technical conditions of a secret minelaying and to the Albanian surveillance, as particularly important. The Bay of Saranda and the channel used by shipping through the Strait are, from their geographical configuration, easily watched ; the entrance of the bay is dominated by heights offering excellent observation points, both over the bay and over the Strait ; whilst the channel throughout is close to the Albanian coast. The laying of a minefield in these waters could hardly fail to have been observed by the Albanian coastal defences. On this subject, it must first be said that the minelaying operation itself must have required a certain time. The method adopted required, according to the Experts of the Court, the methodical and well thought-out laying of two rows of mines that had clearly a combined offensive and defensive purpose : offensive, to prevent the passage, through the Channel, of vessels drawing ten feet of water or more ; defensive, to prevent vessels of the same draught from entering the Bay of Saranda. The report of. the Experts reckons the time that the minelayers would have been in the waters, between Cape Kiephali and St. George's Monastery, at between two and two and a half hours. This is sufficient time to attract the attention of the observation posts, placed, as the Albanian Government stated, at Cape Kiephali and St. George's Monastery. The facilities for observation from the coast are confirmed by the two following circumstances : the distance of the nearest mine from the coast was only 500 metres ; the minelayers must have passed at not more than about 500 metres from the coast between Denta Point and St. George's Monastery. Being anxious to obtain any technical information that might guide it in its search for the truth, the Court submitted the following question to the Experts appointed by it : 20 ICC-02/04-14-AnxA 13-02-2007 23/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 23/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 21 "On the assumption that the mines discovered on Novem- ber ißth, 1946, were laid at some date within the few preceding months, whoever may have laid them, you are requested to examine the information available regarding (a) the number and the nature of the mines, (b) the means for laying them, and (c) the time required to do so, having regard to the different states of the sea, the conditions of the locality, and the different weather conditions, and to ascertain whether it is possible in that way to draw any conclusions, and. if so, what conclusions, in regard to : (1) the means employed for laying the minefield discovered on November I3th, 1946, and (2) the possibility of mooring those mines with those means without the Albanian authorities being aware of it, having regard to the extent of the measures of vigilance existing in the Saranda region."

As the first Report submitted by the Experts did not seem entirely conclusive, the Court, by a decision of January i7th, 1949, asked the Experts to go to Saranda and to verify, complete and, if necessary, modify their answers. In this way, observations were made and various experiments carried out on the spot, in the presence of the experts of the Parties and of Albanian officials, with a view to estimating the possibility of the minelaying having been observed by the Albanian look-out posts. On this subject reference must be made to a test of visibility by night, carried out on the evening of January 28th, 1949, at St. George's Monastery. A motor ship, 27 metres long, and with no bridge, wheel-house, or funnel, and very low on the water, was used. The ship was completely blacked out, and on a moonless night, i.e., under the most favourable conditions for avoiding discovery, it was clearly seen and heard from St. George's Monastery. The noise of the motor was heard at a distance of 1,800 metres, and the ship itself was sighted at 670 metres and remained visible up to about 1,900 metres. The Experts' Report on this visit stated that :

"The Experts consider it to be indisputable that if a normal look-out was kept at Cape Kiephali, Denta Point, and St. George's Monastery, and if the look-outs were equipped with binoculars as has been stated, under normal weather conditions for this area, the minelaying operations shown in Annex 9 to the United King- dom Memorial must have been noticed by these coastguards."

The Court cannot fail to give great weight to the opinion of the Experts who examined the locality in a manner giving every guarantee of correct and impartial information. Apart from the existence of a look-out post at Cape Denta, which has not been proved, the Court, basing itself on the declarations of the Albanian Government that look-out posts were stationed at Cape Kiephali and St. George's Monastery, refers to the following conclusions 21 ICC-02/04-14-AnxA 13-02-2007 24/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 24/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 22 in the Experts' Report : (i) that in the case of minelaying from the North towards the South, the minelayers would have been seen from Cape Kiephali ; (2) in the case of minelaying from the South, the minelayers would have been seen from Cape Kiephali and St. George's Monastery. From all the facts and observations mentioned above, the Court draws the conclusion that the laying of the minefield which caused the explosions on October 22nd, 1946, could not have been accomplished without the knowledge of the Albanian Government. The obligations resulting for Albania from this knowledge are not disputed between the Parties. Counsel for the Albanian Government expressly recognized tha't [translation] "if Albania had been informed of the Operation before the incidents of October 22nd, and in time to warn the British vessels and shipping in general of the existence of mines in the Corfu Channel, her responsibility would be involved....". The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII, which is applicable in time of war, but on certain general and well-recognized principles, namely : elementary considerations of humanity, even more exacting in peace than in war ; the principle of the freedom of maritime communication ; and every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. In fact, Albania neither notified the existence of the minefield, nor warned the British warships of the danger they were approaching. But Albania's obligation to notify shipping of the existence of mines in her waters depends on her having obtained knowledge of that fact in sufficient time before October 22nd ; and the duty of the Albanian coastal authorities to warn the British ships depends on the time' that elapsed between the moment that these ships were reported and the moment of the first explosion. On this subject, the Court makes the following observations. As has already been stated, the Parties agree that the mines were recently laid. It must be concluded that the minelaying, whatever may have been its exact date, was done at a time when there was a close Albanian surveillance over the Strait. If it be supposed that it took place at the last possible moment, i.e., in the night of October 2ist-22nd, the only conclusion to be drawn would 22 ICC-02/04-14-AnxA 13-02-2007 25/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 25/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 23 be that a general notification to the shipping of all States before the time of the explosions would have been difficult, perhaps even impossible. But this would certainly not have prevented the Albanian authorities from taking, as they should have done, all necessary steps immediately to warn ships near the danger zone, more especially those that \vere approaching that zone. When on October 22nd about 13.00 hours the British warships were reported by the look-out post at St. George's Monastery to the Commander of the Coastal Defences as approaching'Cape Long, it was perfectly possible for the Albanian authorities to use the interval of almost two hours that elapsed before the explosion affecting Sanmarez (14.53 hours or 14.55 hours) to warn the vessels of the danger into which they were running.

In fact, nothing was attempted by the Albanian authorities to prevent the disaster. These grave omissions involve the international responsibility of Albania. The Court therefore reaches the conclusion that Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life which resulted from them, and that there is a duty upon Albania to pay compensation to the United Kingdom.

In the final submissions contained in its oral reply, the United Kingdom Government asked the Court to give judgment that, as a result of the breach by the Albanian Government of its obligations under international law, it had sustained damages amounting to £875,000. In the last oral statement submitted in its name, the Albanian Government, for the first time, asserted that the Court would not have jurisdiction, in virtue of the Special Agreement, to assess the amount of compensation. No reason was given in support of this new assertion, and the United Kingdom Agent did not ask leave to reply. The question of the Court's jurisdiction was not argued between the Parties. In the first question of the Special Agreement the Court is asked : (i) Is Albania under international law responsible for the explosions and for the damage and loss of human life which resulted from them, and (ii) is there any duty to pay compensation ? This text gives rise to certain doubts. If point (i) is answered in the affirmative, it follows from the establishment of respons- 23 ICC-02/04-14-AnxA 13-02-2007 26/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 26/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 24 ibility that compensation is due, and it would be superfluous to add point (ii) unless the Parties had something else in mind than a mere declaration by the Court that compensation is due. It would indeed be incompatible with the generally accepted rules of interpretation to admit that a provision of this sort occurring in a special agreement should be devoid of purport or effect. In this connexion, the Court refers to the views expressed by the Permanent Court of International Justice with regard to similar questions of interpretation. In Advisory Opinion No. 13 of July 23rd, 1926, that Court said (Series B., No. 13, p. 19) : "But, so far as concerns the specific question of competence now pending, it may suffice to observe that the Court, in determining the nature and scope of a measure, must look to its practical effect rather than to the predominant motive that may be conjectured to have inspired it." In its Order of August igth, 1929, in the Free Zones case, the Court said (Series A., No. 22, p. 13) : "in case of doubt, the clauses of a special agreement by which a dispute is referred to the Court must, if it does not involve doing violence to their terms, be construed in a manner enabling the clauses themselves to have appropriate effects" The Court thinks it necessary to refer to the different stages of the procedure. In its Resolution of April gth, 1947, the Security Council recommended that the two Governments should immediately refer "the dispute" to the Court. This Resolution had without doubt for its aim the final adjustment of the whole dispute. In pursuance of the Resolution, the Government of the United Kingdom filed an Application in which the Court was asked, inter alia, to "determine the reparation or compensation", and in its Memorial that Government stated the various sums claimed. The Albanian Government thereupon submitted a Preliminary Objection, which was rejected by the Court by its Judgment of March 25th, 1948. Immediately after this judgment was delivered, the Agents of the Parties notified the Court of the conclusion of a Special Agreement. Commenting upon this step taken by the Parties, the Agent of the Albanian Government said that in the circumstances of the present case a special agreement on which "the whole procedure" should be based was essential. He further said [translation] : "As I have stated on several occasions, it has always been the intention of the Albanian Government to respect the decision taken by the Security Council on April gth, 1947, in virtue of which the present Special Agree- ment is submitted to the International Court of Justice." Neither the Albanian nor the United Kingdom Agent suggested in any way that the Special Agreement had limited the competence of the Court in this matter to a decision merely upon the principle of compensation or that the United Kingdom Government had abandoned an important part oi its original claim. The main 24 ICC-02/04-14-AnxA 13-02-2007 27/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 27/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 25 object both Parties had in mind when they concluded the Special Agreement was to establish a complete equality between them by replacing the original procedure based on a unilateral Application by a procedure based on a Special Agreement. There is no suggestion that this change as to procedure was intended to involve any change with regard to the merits of the British claim as originally presented in the Application and Memorial. Accordingly, the Court, after consulting the Parties, in its Order of March 26th, 1948, maintained the United Kingdom's Memorial, filed previously, "with statements and submissions". These submissions included the claim for a fixed sum of compensation.

The subsequent attitude of the Parties shows that it was not their intention, by entering into the Special Agreement, to preclude the Court from fixing the amount of the compensation. In its Reply (paragraph 71) the United Kingdom Government maintained the submissions contained in paragraph 96 of its Memorial, including the claim for a fixed amount of reparation. This claim was expressly repeated in the final United Kingdom submissions. In paragraph 52 of its Counter-Memorial, the Albanian Government stated that it had no knowledge of the loss of human life and damage to ships, but it did not contest the Court's competence to decide this question. In the Rejoinder, paragraph 96, that Govern- ment declared that, owing to its claim for the dismissal of the case, it was unnecessary for it to examine the United Kingdom's claim for reparation. [Translation.] "It reserves the right if need be, to discuss this point which should obviously form the subject of an expert opinion." Having regard to what is said above as to the previous attitude of that Government, this statement must be considered as an implied acceptance of the Court's jurisdiction to decide this question. It may be asked why the Parties, when drafting the Special Agreement, did not expressly ask the Court to assess the amount of the damage, but used the words : ' 'and is there any duty to pay compensation ?" It seems probable that the explanation is to be found in the similarity between this clause and the corresponding clause in the second part of the Special Agreement : "and is there any duty to give satisfaction ?" The Albanian Government has not disputed the competence of the Court to decide what kind of satisfaction is due under this part of the Agreement. The case was argued on behalf of both Parties on the basis that this question should be decided by the Court. In the written pleadings, the Albanian Government contended that it was entitled to apologies. During the oral proceedings, 25 ICC-02/04-14-AnxA 13-02-2007 28/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 28/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 20 Counsel for Albania discussed the question whether a pecuniary satisfaction \vas due. As no damage was caused, he did not claim any sum of money. He concluded [translation'] : "What we desire is the declaration of the Court from a legal point of view...." If, however, the Court is competent to decide what kind of satisfaction is due to Albania under the second part of the Special Agreement, it is difficult to see why it should lack competence to decide the amount of compensation which is due to the United Kingdom under the first part. The clauses used in the Special Agreement are parallel. It cannot be supposed that the Parties, while drafting these clauses in the same form, intended to give them opposite meanings—the one as giving the Court jurisdiction, the other as denying such jurisdiction. As has been said above, the Security Council, in its Resolution of April gth, 1947, undoubtedly intended that the whole dispute should be decided by the Court. If, however, the Court should limit itself to saying that there is a duty to pay compensation without deciding what amount of compensation is due, the dispute would not be finally decided. An important part of it would remain unsettled. As both Parties have repeatedly declared that they accept the Resolution of the Security Council, such a result would not conform with their declarations. It would not give full effect to the Resolution, but would leave open the possibility of a further dispute. For the foregoing reasons, the Court has arrived at the conclusion that it has jurisdiction to assess the amount of the compensation. This cannot, however, be done in the present Judgment. The Albanian Government has not yet stated which items, if any, of the various sums claimed it contests, and the United Kingdom Government has not submitted its evidence with regard to them. The Court therefore considers that further proceedings on this subject are necessary ; the order and time-limits of these proceedings will be fixed by the Order of this date.

In the second part of the Special Agreement, the following question is submitted to the Court : "(2) Has the United Kingdom under international law violated the sovereignty of the Albanian People's Republic by reason of the acts of the Royal Navy in Albanian waters on the 22nd October and on the I2th and I3th November 1946 and is there any duty to give satisfaction ?" The Court will first consider whether the sovereignty of Albania was violated by reason of the acts of the British Navy in Albanian waters on October 2znd, 1946. 26 ICC-02/04-14-AnxA 13-02-2007 29/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 29/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 27 On May isth, 1946, the British cruisers Orion and Superb, while passing southward through the North Corfu Channel, were fired at by an Albanian battery in the vicinity of Saranda. It appears from the report of the commanding naval officer dated May 2gth, 1946, that the firing started when the ships had already passed the battery and were moving away from it ; that from 12 to 20 rounds were fired ; that the firing lasted 12 minutes and ceased only when the ships were out of range ; but that the ships were not hit although there were a number of "shorts" and of "overs". An Albanian note of May 2ist states that the Coastal Commander ordered a few shots to be fired in the direction of the ships "in accordance with a General Order founded on international law".

The United Kingdom Government at once protested to the Albanian Government, stating that innocent passage through straits is a right recognized by international law. There ensued a diplomatic correspondence in which the Albanian Government asserted that foreign warships and merchant vessels had no right to pass through Albanian territorial waters without prior notification to, and the permission of, the Albanian authorities. This view was put into effect by a communication of the Albanian Chief of Staff, dated May I7th, 1946, which purported to subject the passage of foreign warships and merchant vessels in Albanian territorial waters to previous notification to and authorization by the Albanian Government. The diplomatic correspondence continued, and culminated in a United Kingdom note of August 2nd, 1946, in which the United Kingdom Government maintained its view with regard to the right of innocent passage through straits forming routes for international maritime traffic between two parts of the high seas. The note ended with the warning that if Albanian coastal batteries in the future opened fire on any British warship passing through the Corfu Channel, the fire would be returned.

The contents of this note were, on August ist, communicated by the British Admiralty to the Commander-in-Chief, Medi- terranean, with the instruction that he should refrain from using the Channel until the note had been presented to the Albanian Govern- ment. On August loth, he received from the Admiralty the following telegram : "The Albanians have now received the note. North Corfu Strait may now be used by ships of your fleet, but only when essential and with armament in fore and aft position. If coastal guns fire at ships passing through the Strait, ships should fire back." On September 2ist, the following telegram 27 ICC-02/04-14-AnxA 13-02-2007 30/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 30/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 28 was sent by the Admiralty to the Commander-in-Chief, Mediter- ranean: "Establishment of diplomatic relations with Albania is again under consideration by His Majesty's Government who wish to know whether the Albanian Government have learnt to behave themselves. Information is requested whether any ships under your command have passed through the North Corfu Strait since August and, if not, whether you intend them to do so shortly." The Commander-in-Chief answered the next day that his ships had not done so yet, but that it was his intention that Mauritius and Leander and two destroyers should do so when they departed from Corfu on October 22nd.

It was in such circumstances that these two cruisers together with the destroyers Saumurez and Volage were sent through the North Corfu Strait on that date. The Court will now consider the Albanian contention that the United Kingdom Government violated Albanian sovereignty by sending the warships through this Strait without the previous authorization of the Albanian Government. It is, in the opinion of the Court, generally recognized and in accordance with international custom that States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent. Unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such passage through straits in time of peace. The Albanian Government does not dispute that the North Corfu Channel is a strait in the geographical sense ; but it denies that this Channel belongs to the class of international highways through which a right of passage exists, on the grounds that it is only of secondary importance and not even a necessary route between two parts of the high seas, and that it is used almost exclusively for local traffic to and from the ports of Corfu and Saranda. It may be asked whether the test is to be found in the volume of traffic passing through the Strait or in its greater or lesser importance for international navigation. But in the opinion of the Court the decisive criterion is rather its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation. Nor can it be decisive that this Strait is not a necessary route between two parts of the high seas, but only an alternative passage between the ^Egean and the Adriatic Seas. It has nevertheless been a useful route for international maritime traffic. In this respect, the Agent of the United Kingdom Govern- ment gave the Court the following information relating to the 28 ICC-02/04-14-AnxA 13-02-2007 31/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 31/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 2 9 period from April ist, 1936, to December 3ist, 1937 : "The following is the total number of ships putting in at the Port of Corfu after passing through or just before passing through the Channel. During the period of one year nine months, the total number of ships was 2,884. The flags of the ships are Greek, Italian, Rou- manian, Yugoslav, French, Albanian and British. Clearly, very small vessels are included, as the entries for Albanian vessels are high, and of course one vessel may make several journeys, but 2,884 ships for a period of one year nine months is quite a large figure. These figures relate to vessels visited by the Customs at Corfu and so do not include the large number of vessels which went through the Strait without calling at Corfu at all." There were also regular sailings through the Strait by Greek vessels three times weekly, by a British ship fortnightly, and by two Yugoslav vessels weekly and by two others fortnightly. The Court is further informed that the British Navy has regularly used this Channel for eighty years or more, and that it has also been used by the navies of other States.

One fact of particular importance is that the North Corfu Channel constitutes a frontier between Albania and Greece, that a part of it is wholly within the territorial waters of these States, and that the Strait is of special importance to Greece by reason of the traffic to and from the port of Corfu. Having regard to these various considerations, the Court has arrived at the conclusion that the North Corfu Channel should be considered as belonging to the class of international highways through which passage cannot be prohibited by a coastal State in time of peace. On the other hand, it is a fact that the two coastal States did not maintain normal relations, that Greece had made territorial claims precisely with regard to a part of Albanian territory bor- dering on the Channel, that Greece had declared that she considered herself technically in a state of war with Albania, and that Albania, invoking the danger of Greek incursions, had considered it necessary to take certain measures of vigilance in this region. The Court is of opinion that Albania, in view of these exceptional circumstances, would have been justified in issuing regulations in respect of the passage of warships through the Strait, but not in prohibiting such passage or in subjecting it to the requirement of special authorization. For these reasons the Court is unable to accept the Albanian contention that the Government of the United Kingdom has violated Albanian sovereignty by sending the warships through 29 ICC-02/04-14-AnxA 13-02-2007 32/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 32/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 30 the Strait without having obtained the previous authorization of the Albanian Government. In these circumstances, it is unnecessary to consider the more general question, much debated by the Parties, whether States under international law have a right to send warships in time of peace through territorial waters not included in a strait. The Albanian Government has further contended that the sovereignty of Albania was violated because the passage of the British warships on October 22nd, 1946, was not an innocent passage. The reasons advanced in support of this contention may be summed up as follows : The passage was not an ordinary passage, but a political mission ; the ships were manoeuvring and sailing in diamond combat formation with soldiers on board ; the position of the guns was not consistent with innocent passage ; the vessels passed with crews at action stations ; the number of the ships and their armament surpassed what was necessary in order to attain their object and showed an intention to intimidate and not merely to pass ; the ships had received orders to observe and report upon the coastal defences and this order was carried out. It is shown by the Admiralty telegram of September 2ist, cited above, and admitted by the United Kingdom Agent, that the object of sending the warships through the Strait was not only to cany out a passage for purposes of navigation, but also to test Albania's attitude. As mentioned above, the Albanian Government, on May I5th, 1946, tried to impose by means of gunfire its view with regard to the passage. As the exchange of diplomatic notes did not lead to any clarification, the Govern- ment of the United Kingdom wanted to ascertain by other means whether the Albanian Government would maintain its illegal attitude and again impose its view by firing at passing ships. The legality of this measure taken-by the Government of the United Kingdom cannot be disputed, provided that it was carried out in a manner consistent with the requirements of international law. The "mission" was designed to affirm a right which had been unjustly denied. The Government of the United Kingdom was not bound to abstain from exercising its right of passage, which the Albanian Government had illegally denied. It remains, therefore, to consider whether the manner in which the passage was carried out was consistent with the principle of innocent passage and to examine the various contentions of the Albanian Government in so far as they appear to be relevant. When the Albanian coastguards at St. George's Monastery reported that the British warships were sailing in combat formation and were manoeuvring, they must have been under a misap- prehension, 'it is shown by the jevidence that the ships were not proceeding in combat formation, but in line, one after the other,

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THE CORFU CHANNEL CASE (MERITS) 3! and that they were not manoeuvring until after the first explosion. Their movements thereafter were due to the explosions and were made necessary in order to save human life and the mined ships. It is shown by the evidence of witnesses that the contention that soldiers were on board must be due to a misunderstanding probably arising from the fact that the two cruisers carried their usual detachment of marines.

It is known from the above-mentioned order issued by the British Admiralty on August loth, 1946, that ships, when using the North Corfu Strait, must pass with armament in fore and aft position. That this order was carried out during the passage on October 22nd is stated by the Commander-in-Chief, Mediterranean, in a telegram of October 26th to the Admiralty. The guns were, he reported, "trained fore and aft, which is their normal position at sea in peace time, and were not loaded". It is confirmed by the commanders of Saumares and Volage that the guns were-in this position before the explosions. The navigating officer on board Mauritius explained that all guns on that cruiser were in their normal stowage position. The main guns were in the line of the ship, and the anti- aircraft guns were pointing outwards and up into the air, which is the normal position of these guns on a cruiser both in harbour and at sea. In the light of this evidence, the Court cannot accept the Albanian contention that the position of the guns was inconsistent with the rules of innocent passage. In the above-mentioned telegram of October 26th, the Com- mander-in-Chief reported that the passage "was made with ships at action stations in order that they might be able to retaliate quickly if fired upon again". In view of the firing from the Albanian battery on May I5th, this measure of precaution canno't, in itself, be regarded as unreasonable. But four warships—two cruisers and two destroyers—passed in this manner, with crews at action stations, ready to retaliate quickly if fired upon. They passed one after another through this narrow channel, close to the Albanian coast, at a time of political tension in this region. The intention must have been, not only to test Albania's attitude, but at the same time to demonstrate such force that she would abstain from firing again on passing ships. Having regard, however, to all the circumstances of the case, as described above, the Court is unable to characterize these measures taken by the United Kingdom authorities as a violation of Albania's sovereignty.

The Admiralty Chart, Annex 21 to the Memorial, shows that coastal defences in the Saranda region had been observed and reported. In a report of the commander of Volage, dated Octo- ICC-02/04-14-AnxA 13-02-2007 34/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 34/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 32 her 23rd, 1946—a report relating to the passage on the 22nd—it is stated : "The most was made of the opportunities to study Albanian defences at close range. These included, with reference to XCU...."—and he then gives a description of some coastal defences. In accordance with Article 49 of the Statute of the Court and Article 54 of its Rules, the Court requested the United Kingdom Agent to produce the documents referred to as XCU for the use of the Court. Those documents were not produced, the Agent pleading naval secrecy ; and the United Kingdom witnesses declined to answer questions relating to them. It is not therefore possible to know the real content of these naval orders. The Court cannot, however, draw from this refusal to produce the orders any conclusions differing from those to which the actual events gave rise. The United Kingdom Agent stated that the instructions in these orders related solely to the contingency of shots being fired from the coast—which did not happen. If it is true, as the commander of Volage said in evidence, that the orders contained information concerning certain positions from which the British warships might have been fired at, it cannot be deduced therefrom that the vessels had received orders to reconnoitre Albanian coastal defences. Lastly, as the Court has to judge of the innocent nature of the passage, it cannot remain indifferent to the fact that, though two warships struck mines, there was no reaction, either on their part or on that of the cruisers that accompanied them.

With regard to the observations of coastal defences made after the explosions, these were justified by the fact that two ships had just been blown up and that, in this critical situation, their commanders might fear that they would be fired on from the coast, as on May I5th. Having thus examined the various contentions of the Albanian Government in so far as they appear to be relevant, the Court has arrived at the conclusion that the United Kingdom did not violate the sovereignty of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946.

In addition to the passage of the United Kingdom warships on October 22nd, 1946, the second question in the Special Agreement relates to the acts of the Royal Navy in Albanian waters on November i2th and I3th, 1946. This is the minesweeping operation called "Operation Retail" by the Parties during the proceedings. This name will be used in the present Judgment.

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THE CORFU CHANNEL CASE (MERITS) 33 After the explosions of October 22nd, the United Kingdom Government sent a note to the Albanian Government, in which it announced its intention to sweep the Corfu Channel shortly. The Albanian reply, which was received in London on October 3ist, stated that the Albanian Government would not give its consent to this unless the operation in question took place outside Albanian territorial waters. Meanwhile, at the United Kingdom Govern- ment's request, the International Central Mine Clearance Board decided, in a resolution of November ist, 1946, that there should be a further sweep of the Channel, subject to Albania's consent. The United Kingdom Government having informed the Albanian Government, in a communication of November loth, that the proposed sweep would take place on November I2th, the Albanian Government replied on the nth, protesting against this "unilateral decision of His Majesty's Government". It said it did not consider it inconvenient that the British fleet should undertake the sweeping of the channel of navigation, but added that, before sweeping was carried out, it considered it indispensable to decide what area of the sea should be deemed to constitute this channel, and proposed the establishment of a Mixed Commission for the purpose. It ended by saying that any sweeping undertaken without the consent of the Albanian Government outside the channel thus constituted, i.e., inside Albanian territorial waters where foreign warships have no reason to sail, could only be considered as a deliberate violation of Albanian territory and sovereignty.

After this exchange of notes, "Operation Retail" took place on November i2th and I3th. Commander Mestre, of the French Navy, was asked to attend as observer, and was present at the sweep on November I3th. The operation was carried out under the protection of an important covering force composed of an aircraft carrier, cruisers and other war vessels. This covering force remained throughout the operation at a certain distance to the west of the Channel, except for the frigate St. Bride's Bay, which was stationed in the Channel south-east of Cape Kiephali. The sweep began in the morning of November I3th, at about 9 o'clock, and ended in the afternoon near nightfall. The area swept was in Albanian territorial waters, and within the limits of the channel previously swept. The United Kingdom Government does not dispute that "Oper- ation Retail" was carried out against the clearly expressed wish of the Albanian Government. It recognizes that the operation had not the consent of the international mine clearance organizations, that it could not be justified as the exercise of a right of innocent passage, and lastly that, in principle, international law does not allow a State to assemble a large number of warships in the 33 ICC-02/04-14-AnxA 13-02-2007 36/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 36/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 34 territorial waters of another State and to carry out minesweeping in those waters. The United Kingdom. Government states that the operation was one of extreme urgency, and that it considered itself entitled to carry it out without anybody's consent. The United Kingdom Government put forward two reasons in justification. First, the Agreement of November 22nd, 1945, signed by the Governments of the United Kingdom, France, the Soviet Union and the United States of America, authorizing regional mine clearance organizations, such as the Mediterranean Zone Board, to divide the sectors in their respective zones amongst the States concerned for sweeping. Relying on the circumstance that the Corfu Channel was in the sector allotted to Greece by the Mediterranean Zone Board on November 5th, i.e., before the signing of the above-mentioned Agreement, .the United Kingdom Government put forward a permission given by the Hellenic Government to resweep the navigable channel. The Court does not consider this argument convincing. It must be noted that, as the United Kingdom Government admits, the need for resweeping the Channel was not under consideration in November 1945 ; for previous sweeps in 1944 and 1045 were considered as having effected complete safety. As a consequence, the allocation of the sector in question to Greece, and, therefore, the permission of the Hellenic Government which is relied on, were both of them merely nominal. It is also to be remarked that Albania was not consulted regarding the allocation to Greece of the sector in question, despite the fact that the Channel passed through Albanian territorial waters. But, in fact, the explosions of October 22nd, 1946, in a channel declared safe for navigation, and one which the United Kingdom Government, more than any other government, had reason to consider safe, raised quite a different problem from that of a routine sweep carried out under the orders of the mineclearance organizations. These explosions were suspicious ; they raised a question of responsibility. Accordingly, this was the ground on which the United Kingdom Government chose to establish its main line of defence. According to that Government, the corpora delicti must be secured as quickly as possible, for fear they should be taken away, without leaving traces, by the authors of the minelaying or by the Albanian authorities. This justification took two distinct forms in the United Kingdom Government's arguments. It was presented first as a new and special application of the theory of intervention, by means of which the State intervening would secure possession of evidence in the territory of another State, in order to submit it to an international tribunal and thus facilitate its task.

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THE CORFU CHANNEL CASE (MERITS) 35 The Court cannot accept such a line of defence. The Court can only regard the alleged right of intervention as the mani- festation of a policy of force, such -as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law. Intervention is perhaps still less admissible in the particular form it would take here ; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself. The United Kingdom Agent, in his speech in reply, has further classified "Operation Retail" among methods of self-protection or self-help. The Court cannot accept this defence either. Between independent States, respect for territorial sovereignty is an essential foundation of international relations. The Court recognizes that the Albanian Government's complete failure to carry out its duties after the explosions, and the dilatory nature of its diplomatic notes, are extenuating circumstances for the action of the United Kingdom Government. But to ensure respect for international law, of which it is the organ, the Court must declare that the action of the British Navy co stituted a violation of Albanian sovereignty. This declaration is in accordance with the request made by Albania through her Counsel, and is in itself appropriate satisfaction. The method of carrying out "Operation Retail" has also been criticized by the Albanian Government, the main ground of complaint being that the United Kingdom, on that occasion, made use of an unnecessarily large display of force, out of proportion to the requirements of the sweep. The Court thinks that this criticism is not justified. It does not consider that the action of the British Navy was a demonstration of force for the purpose of exercising political pressure on Albania. The responsible naval commander, who kept his ships at a distance from the coast, cannot be reproached [or having employed an important covering force in a region where twice within a few months his ships had been the object of serious outrages.

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THE CORFU CHANNEL CASE (MERITS) 36

FOR THESE REASONS,

THE COURT, on the first question put by the Special Agreement of March 25th, 1948, by eleven votes to five, Gives judgment that the People's Republic of Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life that resulted therefrom ; and by ten votes to six, Reserves for further consideration the assessment of the amount of compensation and regulates the procedure on this subject by an Order dated this day ;

on the second question put by the Special Agreement of March 25th, 1948, by fourteen votes to two, Gives judgment that the United Kingdom did not violate the sovereignty of the People's Republic of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946 ; and unanimously,

Gives judgment that by reason of the acts of the British Navy in Albanian waters in the course of the Operation of November I2th and I3th, 1946, the United Kingdom violated the sovereignty of the People's Republic of Albania, and that this declaration by the Court constitutes in itself appropriate satisfaction. ICC-02/04-14-AnxA 13-02-2007 39/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 39/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 37

Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this ninth day of April, one thousand nine hundred and forty-nine, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the United Kingdom of Great Britain and Northern Ireland and of the People's Republic of Albania respectively. (Signed) J. G. GUERRERO, Acting President.

(Signed) E. HAMBRO, Registrar.

Judge BASDEVANT, President of the Court, whilst accepting the whole of the operative part of the Judgment, feels bound to state that he cannot accept the reasons given by the Court in support of its jurisdiction to assess the amount of compensation, other reasons being in his opinion more decisive. Judge ZoRiéié declares that he is unable to agree either with the operative clause or with the reasons for the Judgment in the part relating to Albania's responsibility ; the arguments submitted, and the facts established are not such as to convince him that the Albanian Government was, or ought to have been, aware, before November ißth, 1946, of the existence of the minefield discovered on that date. On the one hand, the attitude adopted by a government when confronted by certain facts varies according to the circumstances, to its mentality, to the means at its disposal and to its experience in the conduct of public affairs. But it has not been contested that, in 1946, Albania had a new Government possessing no experience in international practice. It is therefore difficult to draw any inferences whatever from its attitude. Again, the conclusion oi the Experts that the operation of laying the mines must have been seen is subject to an express reservation : it would be necessary to assume the realization of several conditions, in particular the maintenance of normal look-out posts at Cape ICC-02/04-14-AnxA 13-02-2007 40/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 40/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

THE CORFU CHANNEL CASE (MERITS) 38 Kiephali, Denta Point and San Giorgio Monastery, and the existence of normal weather conditions at the date. But the Court knows neither the date on which the mines were laid nor the weather conditions prevailing on that date. Furthermore, no proof has been furnished of the presence of a look-out post on Denta Point, though that, according to the Experts, would have been the only post which would necessarily have observed the minelaying. On the other hand, the remaining posts would merely have been able to observe the passage of the ships, and there is no evidence to show- that they ought to have concluded that the ships were going to lay mines. According to the Experts, these posts could neither have seen nor heard the minelaying, because the San Giorgio Monastery was 2,000 m. from the nearest mine and Cape Kiephali was several kilometres away from it. As a result, the Court is confronted with suspicions, conjectures and presumptions, the foundations for which, in Judge Zoricid's view, are too uncertain to justify him in imputing to a State the responsibility for a grave delinquency in international law. Judge ALVAREZ, whilst concurring in the Judgment of the Court, has availed himself of the right conferred on him by Article 57 of the Statute and appended to the Judgment a statement of his individual opinion. Judges WINIARSKI, BADAWI PASHA, KRYLOV and AZEVEDO, and Judge ad hoc ECER, declaring that they are unable to concur in the Judgment of the Court, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the Judgment statements of their dissenting opinions.

(Initialled) J. G. G.

(Initialled) E. H. ICC-02/04-14-AnxA 13-02-2007 41/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 41/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

174

INTERNATIONAL COURT OF JUSTICE

April nth. G Ust: YEAR 1940' «^. **Srfo*. 4. April llth, 1949. REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS

Injuries suffered by agents of United Nations in course of performance of duties.—Damage to United Nations.—Damage to agents. —Capacity of United Nations to bring claims for reparation due in respect of both.—Internationa] personality of United Nations.— Capacity as necessary implication arising from Charter and activities of United Nations.—Functional protection of agents.—Claim against a Member of the United Nations.—Claim against a non-member.— Reconciliation of claim by national State and claim by United Nations. —Claim by United Nations against agent's national State.

ADVISORY OPINION. ICC-02/04-14-AnxA 13-02-2007 42/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 42/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

N. OF ii iv 49 (REPARATION FOR INJURIES SUFFERED) 175

THE COURIR composed as above, gives the following advisory opinion : On December 3rd, 1948, the General Assembly of the United Nations adopted the following Resolution : "Whereas the series of tragic events which have lately befallen agents of the United Nations engaged in the performance of their duties raises, with greater urgency than ever, the question of the arrangements to be made by the United Nations with a view to ensuring to its agents the fullest measure of protection in the future and ensuring that reparation be made for the injuries suffered ; and AVhereas it is highly desirable that the Secretary-General should be able to act without question as efficaciously as possible with a view to obtaining any reparation due ; therefore The General Assembly Decides to submit the following legal questions to the Inter- national Court of Justice for an advisory opinion : 'I. In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him ? II. In the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national ?' Instructs the Secretary-General, after the Court has given its opinion, to prepare proposals in the light of that opinion, and to submit them to the General Assembly at its next regular session."

In a letter of December 4th, 1948, filed in the Registry on December 7th, the Secretary-General of the United Nations forwarded to the Court a certified true copy of the Resolution of the General Assembly. On December loth, in accordance with paragraph ι of Article 66 of the Statute, the Registrar gave notice of the Request to all States entitled to appear before the Court. On December nth, by means of a special and direct communication as provided in paragraph 2 of Article 66, he informed these States that, in an Order made on the same date, the Court had ICC-02/04-14-AnxA 13-02-2007 43/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 43/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

. OF ii ly 40. {REPARATION FOR INJURIES SUFFERED) stated that it was prepared to receive written statements on the questions before February I4th, 1949, and to hear oral statements on March yth, 1949. Written statements were received from the follo\ving States : India, China, United States of America, United Kingdom of Great Britain and Northern Ireland, and France. These statements were communicated to all States entitled to appear before the Court and to the Secretary-General of the United Nations. In the meantime, the Secretary-General of the United 'Nations, having regard to Article 65 of the Statute (paragraph 2 of which provides that every question submitted for an opinion shall be accompanied by all documents likely to throw light upon it), had sent to the Registrar the documents which are enumerated in the list annexed to this Opinion. Furthermore, the Secretary-General of the United Nations and the Governments of the French Republic, of the United Kingdom and of the Kingdom of Belgium informed the Court that they had designated representatives to present, oral statements. In the course of public sittings held on March yth, 8th and gth, 1949, the Court heard the oral statements presented on behalf of the Secretary-General of the United Nations by Mr. Ivan Kerno, Assistant Secretary-General in charge of the Legal Department as his Representative, and by Mr. A. H. Feller, Principal Director of that Department, as Counsel ; on behalf of the Government of the Kingdom of Belgium, by M. Georges Kaeckenbeeck, D.C.L., Minister Plenipotentiary of His Majesty the King of the Belgians, Head of the Division for Peace Conferences and International Organization at the Ministry for Foreign Affairs, Member of the Permanent Court of Arbitration ; on behalf of the Government of the French Republic, by M. Charles Chaumont, Professor of Public International Law at the Faculty of Law, Nancy ; Legal Adviser to the Ministry for Foreign Affairs ; on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland by Mr. G. G. Fitzmaurice, Second Legal Adviser to the Foreign Office.

The first question asked of the Court is as follows : "In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances'involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against 6 ICC-02/04-14-AnxA 13-02-2007 44/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 44/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

N. OF n iv 49 (REPARATION FOR INJURIES SUFFERED) 177 The responsible 'ïië'~jïirë~ or "3e facto government with à~ vîëw to obtaining the reparation due in respect of the damage caused (

(Λ) The Organization of the United Nations will be referred to usually, but not invariably, as "the Organization".

(b) Questions I (a) and I (b) refer to "an international claim against the responsible de jure or de facto government". The Court understands that these questions are directed to claims against a State, and will, therefore, in this opinion, use the expression "State" or "defendant State". (c) The Court understands the word "agent" in the most liberal sense, that is to say, any person who, whether a paid official or not, and whether permanently employed or not, has been charged by an organ of the Organization with carrying out, or helping to carry out, one of its functions—in short, any person through whom it acts. (d) As this question assumes an injury suffered in such circumstances as to involve a State's responsibility, it must be supposed, for the purpose of this Opinion, that the damage results from a failure by the State to perform obligations of which the purpose is to protect the agents of the Organization in the performance of their duties. . (e) The position of a defendant State which is not a member of the Organization is dealt with later, and for the present the Court will assume that the defendant State is a Member of th.e Organization.

The questions asked of the Court relate to the "capacity to bring an international claim" ; accordingly, we must begin by defining what is meant by that capacity, and consider the characteristics of the Organization, so as to determine whether, in general, these characteristics do, or do not, include for the Organization a right to present an international claim.

Competence to bring an international claim is, for those possessing it, the capacity to resort to the customary methods recognized by international law for the establishment, the presentation and the settlement of claims. Among these methods may be mentioned protest, request for an enquiry, negotiation, and request for submission to an arbitral tribunal or to the Court in so far as this may be authorized by the Statute. This capacity certainly belongs to the State ; a State can bring an international claim against another State. Such a claim takes the form of a claim between two political entities, equal in law, similar 7 ICC-02/04-14-AnxA 13-02-2007 45/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 45/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

OP u iv 49 (REPARATION FOR INJURIES SUFFERED) 178 in form, and both the direct subjects of international law. It is dealt with by means of negotiation, and cannot, in the present state of the law as to international jurisdiction, be submitted to a tribunal, except with the consent of the States concerned. \Yhen the Organization brings a claim against one of its Members, this claim will be presented in the same manner, and regulated by the same procedure. It may, when necessary, be supported by the political means at the disposal of the Organization. In these ways the Organization would find a method for securing the observance of its rights by the Member against which it has a claim. But, in the international sphere, has the Organization such a nature as involves the capacity to bring an international claim ? In order to answer this question, the Court must first enquire whether the Charter has given the Organization such a position that it possesses, in regard to its Members, rights which it is entitled to ask them to respect. In other words, does the Organization possess international personality ? This is no doubt a doctrinal expression, which has sometimes given rise to controversy. But it will be used here to mean that if the Organization is recognized as having that personality, it is an entity capable of availing itself of obligations incumbent upon its Members. To answer this question, which is not settled by the actual terms of the Charter, we must consider what characteristics it was intended thereby to give to the Organization. The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States. This development culminated in the establishment in June 1945 of an international- organization whose purposes and principles are specified in the Charter of the United Nations. But to achieve these ends the' attribution of international personality is indispensable. The Charter has not been content to make the Organization created by it merely a centre "for harmonizing the actions of nations in the attainment of these common ends" (Article i, para. 4). It has equipped that centre with organs, and has given it special tasks. It has denned the position of the Members in relation to the Organization by requiring them to give it every assistance in any action undertaken by it (Article 2, para. 5), and to accept and carry out the decisions of the Security Council ; by authorizing the General Assembly to make recommendations to the Members ; 8 ICC-02/04-14-AnxA 13-02-2007 46/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 46/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

opiN. OF il iv 49 (REPARATION FOR INJURIES SUFFERED) 179 by giving the Organization legal capacity and privileges and immunities in the territory of each of its Members ; and by providing for the conclusion of agreements between the Organization and its Members. Practice—in particular the conclusion of conventions to which the Organization is a party—has confirmed this character of the Organization, which occupies a position in certain respects in detachment from its Members, and which is under a duty to remind them, if need be, of certain obligations. It must be added that the Organization is a political body, charged with political tasks of an important character, and covering a wide field namely, the maintenance of international peace and security, the development of friendly relations among nations, and the achievement of international co-operation in the solution of problems of an economic, social, cultural or humanitarian character (Article l) ; and in dealing with its Members it employs political means. The "Convention on the Privileges and Immunities of the United Nations" of 1946 creates rights and duties between each of the signatories and the Organization (see, in particular, Section 35). It is difficult to see how such a convention could operate except upon the international plane and as between parties possessing international personality. In the opinion 'of the Court-, the Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. It is at present the supreme type of international organization, and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged. Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is "a super-State", whatever that expression may mean. It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims. The next question is whether the eum of the international rights of the Organization comprises the right to bring the kind of international claim described in the Request for this Opinion. That is a claim against a State to obtain reparation in respect of the ICC-02/04-14-AnxA 13-02-2007 47/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 47/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

OPIN. OF II IV 49 (REPARATION FOR INJURIES SUFFERED) ΐ8θ damage caused by the injury of an agent of the Organization in the course of the performance of his duties. Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice. The functions of the Organization are of such a character that they could not be effectively discharged if they involved the concurrent action, on the international plane, of fifty-eight or more Foreign Offices, and the Court concludes that the Members have endowed the Organization with capacity to bring international claims when necessitated by the discharge of its functions. What is the position as regards the claims mentioned in the request for an opinion ? Question I is divided into two points, which must be considered in turn.

Question I (a) is as follows : "In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible dt jure or de fado government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations.... ?" The question is concerned solely with the reparation of damage caused to the Organization when one of its agents suffers injury at the same time. It cannot be doubted that the Organization has the capacity to bring an international claim against one of its Mem- bers which has caused injury to it by a breach of its international obligations towards it. The damage specified in Question I (a) means exclusively damage caused to the interests of the Organiza- tion itself, to its administrative machine, to its property and assets, and to the interests of which it is the guardian. It is clear that the Organization has the capacity to bring a claim f or'this damage. As the claim is based on the breach of an international obligation on the part of the Member held responsible by the Organ- ization, the Member cannot contend that this obligation is governed by municipal la\v, and the Organization is justified in giving its claim the character of an international claim. When the Organization has sustained damage resulting from a breach by a Member of its international obligations, it is impossible to see how it can obtain reparation unless it possesses capacity to bring an international claim. It cannot be supposed that in such an event all the Members of the Organization, save the defendant zo ICC-02/04-14-AnxA 13-02-2007 48/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 48/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

ορικ. OF ιι iv 49 (REPARATION FOR INJURIES SUFFERED) 181 State, must combine to bring a claim against the defendant for the damage suffered by the Organization. The Court is not called upon to determine the precise extent of the reparation which the Organization would be entitled to recover. It may, however, be said that the measure of the reparation should depend upon the amount of the damage which the Organization has suffered as the result of the wrongful act or omission óf the defendant State and should be calculated in accordance with the rules of international law. Amongst other things, this damage would include the reimbursement of any reasonable compensation which the Organization had to pay to its agent or to persons entitled through him. Again, the death or disablement of one of its agents engaged upon a distant mission might involve very considerable expenditure in replacing him. These are mere illustrations, and the Court cannot pretend to forecast all the kinds of damage \vhich the Organization itself might sustain.

Question I (b) is as follows : ...."has the United Nations, as an Organization, the capacity to bring an international claim .... in respect of the damage caused .... (o) to the victim or to persons entitled through him?" In dealing with the question of law \vhich arises out of Question I (6), it is unnecessary to repeat the considerations which led to an affirmative answer being given to Question I (a). It can now be assumed that the Organization has the capacity to bring a claim on the international plane, to negotiate, to conclude a special agreement and to prosecute a claim before an international tribunal. The only legal question which remains to be considered is whether, in the course of bringing an international claim of this kind, the Organiza- tion can recover "the reparation due in respect of the damage caused .... to the victim....". The traditional rule that diplomatic protection is exercised by the national State does not involve the giving of a negative answer to Question I (b). In the first place, this rule applies to claims brought by a State. But here we have the different and new case of a claim that \vould be brought by the Organization. In the second place, even in inter-State relations, there are important exceptions to the rule, for there are cases in which protection may be exercised by a State on behalf of persons not having its nationality. In the third place, the rule rests on two bases. The first is that the defendant State has broken an obligation towards the national State in respect of its nationals. The second is that only the party II ICC-02/04-14-AnxA 13-02-2007 49/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 49/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

opiN. OF ii iv 49 (REPARATION FOR INJURIES SUFFERED) 182 to whom an international obligation is due can bring a claim in respect of its breach. This is precisely what happens \vhen the Organization, in bringing a claim for damage suffered by its agent, does so by invoking the breach of an obligation towards itself. Thus, the rule of the nationality of claims affords no reason against recognizing that the Organization has the right to bring a claim for the damage referred to in Question I (b). On the contrary, the principle underlying this rule leads to the recognition of this capacity as belonging to the Organization, when the Organization invokes, as the ground of its claim, a breach of an obligation towards itself.

Nor does the analogy of the traditional rule of diplomatic protection of nationals abroad iustify in itself an affirmative reply. It is not possible, by a strained use of the concept of allegiance, to assimilate the legal bond which exists, under Article 100 of the Charter, between the Organization on the one hand, and the Secretary-General and the staff on the other, to the bond of nationality existing between a State and its nationals. The Court is here faced with a new situation. The questions to which it gives rise can only be solved by realizing that the situation is dominated by the provisions of the Charter considered in the light of the principles of international law. The question lies within the limits already established ; that is to say it presupposes that the injury for which the reparation is demanded arises from a breach of an obligation designed to help an agent of the Organization in the performance of his duties. It is not a case in which the wrongful act or omission would merely constitute a breach of the general obligations of a State concerning the position of aliens; claims made under this head would be within the competence of the national State and not, as a general rule, within that, of the Organization. The Charter does not expressly confer upon the Organization the capacity to include, in its claim for reparation, damage caused to the victim or to persons entitled through him. The Court must therefore begin by enquiring whether the provisions of the Charter concerning the functions of the Organization, and the part played by its agents in the performance of those functions, imply for the Organization power to afford its agents the limited protection that would consist in the bringing of a claim on their behalf for reparation for damage suffered in such circumstances. Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. This principle of law was applied by the Permanent Court of International Justice to the International Labour Organization in its Advisory Opinion No. 13 of July 23rd, 12 ICC-02/04-14-AnxA 13-02-2007 50/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 50/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

opiN. OF ii iv 49 (REPARATION FOK INJURIES SUFFERED) 183 1926 (Series B., No. 13, p. 18), and must be applied to the United Nations. Having regard to its purposes and functions already referred to, the Organization may find it necessary, and has in fact found it necessary, to entrust its agents with important missions to be performed in disturbed parts of the world. Many missions, from their very nature, involve the agents in unusual dangers to which ordinary persons are not exposed. For the same reason, the injuries suffered by its agents in these circumstances \vill sometimes have occurred in such a manner that their national State would not be justified in bringing a claim for reparation on the ground of diplomatic protection, or, at any rate, would not feel disposed to do so. Both to ensure the efficient and independent performance of these missions and to afford effective- support to its agents, the Organization must provide them with adequate protection. This need of protection for the agents of the Organization, as a condition of the performance of its functions, has already been realized, and the Preamble to the Resolution of December 3rd, 1948 (supra, p. 175), shows that this was the unanimous view of the General Assembly. For this purpose, the Members of the Organization have entered into certain undertakings, some of which are in the Charter and others in complementary agreements. The content of these undertakings need not be described here ; but the Court must stress the importance of the duty to render to the Organization "every assistance" which is accepted by the Members in Article 2, paragraph 5, of the Charter. It must be noted that the effective working of the Organization—the accomplishment of its task, and the independence and effectiveness of the work of its agents— require that these undertakings should be strictly observed. For that purpose, it is necessary that, when an infringement occurs, the Organization should be able to call upon the responsible State to remedy its default, and, in particular, to obtain from the State reparation for the damage that the default may have caused to its agent. In order that the agent may perform his duties satisfactorily, he must feel that this protection is assured to him by the Organi- zation, and that he may count on it. To ensure the independence of the agent, and, consequently, the independent action of the Organization itself, it is essential that in performing his duties he need not have to rely on any other protection than that of the Organization (save of course for the more direct and immediate protection due from the State in whose territory he may be). In particular, he should not have to rely on the protection of his own State. If he had to rely on that State, his independence might well be compromised, contrary to the principle applied by Article 100 of the Charter. And lastly, it is essential that— 13 ICC-02/04-14-AnxA 13-02-2007 51/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 51/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

N. OF ii iv 49 (REPARATION FOR INJURIES SUFFERED) 184 whether the agent belongs to a powerful or to a weak State ; to one more affected or less affected by the complications of international life ; to one in sympathy or not in sympathy with the mission of the agent — he should know that in the performance of his duties he is under the protection of the Organization. This assurance is even more necessary when the agent is stateless. Upon examination of the character of the functions entrusted to the Organization and of the nature of the missions of its agents, it becomes clear that the capacity of the Organization to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter. The obligations entered into by States to enable the agents of the Organization to perform their duties are undertaken not in the interest of the agents, but in that of the Organization. When it claims redress for a breach of these obligations, the Organization is invoking its own right, the right that the obligations due to it should be respected. On this ground, it asks for reparation of the injury suffered, for "it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form"; as was -stated by the Permanent Court in its Judgment No. 8 of July 20th, 1927 (Series A., No. 9, p. 21). In claiming reparation based on the injury suffered by its agent, the Organization does not represent the agent, but is asserting its own right, the right to secure respect for undertakings entered into towards the Organization. Having regard to the foregoing considerations, and to the un- deniable right of the Organization to demand that its Members shall fulfil the obligations entered into by them in the interest of the good working of the Organization, the Court is of the opinion that, in the case of a breach of these obligations, the Organization has the capacity to claim adequate reparation, and that in assessing this reparation it is authorized to include the damage suffered by the victim or by persons entitled through him.

The question remains whether the Organization has "the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him" when the defendant State is not a member of the Organization. In considering this aspect of Question I (a) and (6), it is necessary to keep in mind the reasons which have led the Court to give an affirmative answer to it when the defendant State is a Member of the Organization. It has now been established that the Organization has capacity to bring claims on the international 14 ICC-02/04-14-AnxA 13-02-2007 52/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 52/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

ΘΡ»ίν-θ1?-Ιϊ IV-49 (RHfAKAllUN KÜR INJURIES SUFFERED) "ÎS'S plane, and that it possesses a right of functional protection in respect of its agents. Here again the Court is authorized to assume that the damage suffered involves the responsibility of a State, and it is not called upon to express an opinion upon the various ways in which that responsibility might be engaged. Accordingly the question is whether the Organization has capacity to bring a claim against the defendant State to recover reparation in respect of that damage or whether, on the contrary, the defendant State, not being a member, is Justified in raising the objection that the Organization lacks the capacity to bring an international claim. On this point, the Court's opinion is that fifty States, representing the vast majority of the'members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims. Accordingly, the Court arrives at the conclusion that an affirmative ans\ver should be given to Question I (a) and (b) whether or not the defendant State is a Member of the United Nations.

Question II is as follows : "In the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national ?"

The affirmative reply given by the Court on point I (b) obliges it now to examine Question II. When the victim has a nationality, cases can clearly occur in which the injury suffered by him may engage the interest both of his national State and of the Organ- ization. In such an event, competition between the State's right of diplomatic protection and the Organization's right of functional protection might arise, and this is the only case with which the Court is invited to deal. In such a case, there is no rule of law which assigns priority to the one or to the other, or which compels either the State or the Organization to refrain from bringing an international claim. ICC-02/04-14-AnxA 13-02-2007 53/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 53/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

opiN. OF it iv 49 (REPARATION FOR INJURIES SUFFERED) 186 The Court sees no reason why the parties concerned should not find solutions inspired by goodwill and common sense, and as behveen the Organization and its Members it draws attention to their duty to render "every assistance" provided by Article 2, paragraph 5, of the Charter. Although the bases of the two claims are different, that does not mean that the defendant State can be compelled to pay the reparation due in respect of the damage twice over. International tribunals are already familiar with the problem of a claim in which two or more national States are interested, and they know how to protect the defendant State in such a case. The risk of competition between the Organization and the national State can be reduced or eliminated either by a general convention or by agreements entered into in each particular case. There is no doubt that in due course a practice wifl be developed, and it is worthy of note that already certain States whose nationals have been injured in the performance of missions undertaken for the Organization have shown a reasonable and co-operative disposition to find a practical solution.

The question of reconciling action by the Organization with the rights of a national State may arise in another way ; that is to say, when the agent bears the nationality of the defendant State. The ordinary practice whereby a State does not exercise protection on behalf of one of its nationals against a State which regards him as its own national, does not constitute a precedent which is relevant here. The action of the Organization is in fact based not upon the nationality of the victim but upon his status as agent of the Organization. Therefore it does not matter whether or not the State to which the claim is addressed regards him as its own national, because the question of nationality is not pertinent to the admissibility of the claim. In law, therefore, it does not seem that the fact of the possession of the nationality of the defendant State by the agent constitutes any obstacle to a claim brought by the Organization for a breach of obligations towards it occurring in relation to the performance of his mission by that agent.

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opiN. OF il iv 49 (REPARATION FOR INJURIES SUFFERED) 187

FOR THESE REASONS, The Court is of opinion

On Question I (a) : (i) unanimously, That, in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a Member State, the United Nations as an Organization has the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused to the United Nations. (ii) unanimously, · That, in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State which is not a member, the United. Nations as an Organization has the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused to the United Nations.

On Question I (b) : (i) by eleven votes against four, That, in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a Member State, the United Nations as an Organization has the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused to the victim or to persons entitled through him. (ii) by eleven votes against four, That, in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State which is not a member, the United Nations as an Organization has the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused to the victim or to persons entitled through him. ICC-02/04-14-AnxA 13-02-2007 55/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 55/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

opiN. OF il iv 49 (REPARATION FOR INJURIES SUFFERED) 188

On Question II : By ten votes against five, When the United Nations as an Organization is bringing a claim for reparation of damage caused to its agent, it can only do so by basing its claim upon a breach of obligations due to itself ; respect for this rule will usually prevent a conflict between the action of the United Nations and such rights as the agent's national State may possess, and thus bring about a reconciliation between their claims ; moreover, this reconciliation must depend upon considerations applicable to each particular case, and upon agreements to be made between the Organization and individual States, either generally or in each case.

Done in English and French, the English text being authoritative, at the Peace Palace, The Hague, this eleventh day of April, one thousand nine hundred and forty-nine, in two copies, one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations.

(Signed) BASDEVAKT, President.

(Signed) E. HAMBRO, Registrar.

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OPiN. OF ii iv 49 (REPARATION FOR INJURIES SUFFERED) 189

Judge WiNiARSKi states with regret that he is unable to concur in the reply given by the Court to Question I (b). In general, he shares the views expressed in' Judge Hackworth's dissenting opinion. Judges ALVAREZ and AZEVEDO, whilst concurring in the Opinion of the Court, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the Opinion statements of their individual opinion. Judges HACKWORTH, BADAWI PASHA and KRYLOV, declaring that they are unable to concur in the Opinion of the Court, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the Opinion statements of their dissenting opinion.

(Initialled) J. B. (Initialled) E. H. ICC-02/04-14-AnxA 13-02-2007 57/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 57/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

The International Criminal Court

Elements of Crimes and Rules of Procedure and Evidence

Edited by Roy S. Lee Associate Editors: Hâkan Friman, Silvia A. Fernandez de Gurmendi, Herman von Hebel, and Darryl Robinson

Transnational Publishers, Inc. ICC-02/04-14-AnxA 13-02-2007 58/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 58/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

CONTENTS

Published and distributed by Transnational Publishers, Inc. 410 Saw Mill River Road Preface xxvii Ardsley, NY 10502, USA Kofi Annan, Secretary-General of the United Nations Phone:914-693-5100 Contributors xxix l-ax: 914-693-4430 Key Terms and References xxxvii Ε-mai l : info@transnationalpubs. com Web: www.transnationalpubs.com The Work of the Preparatory Commission xlv Phillip Kirsch I. Background xlv II. Elements of Crimes xlvii III. Rules of Procedure and Evidence xlix IV Aggression li V. Conclusion lii Library of Congress Cataloging-in-Publication Data Introduction Iv Roy S. Lee The International Criminal Court : elements of crimes and rules of I. A Record of Legislative Intent and procedure and evidence / edited by Roy S. Lee Negotiating History Ivi p. cm. II. Do the Elements and the Rules Meet the Includes index. Basic Objectives Iviii ISBN 1-57105-209-7 III. ICC Functions Iviii I. International criminal courts—Rules and practice. 2. International IV. NGOs Contribution Ixv offenses. I. Lee, Roy S. V Perspective Ixvi

KZ6310.1579 2000 Part One 341.7'7—dc21 2001052029 Elements of Crimes Chapter 1 The Making of the Elements of Crimes 3 I. Introduction 3 Herman von Hebel Copyright © 2001 by Transnational Publishers, Inc. II. The Decision to Include Elements of Crimes in the Rome Statute 4 All rights reserved. This book may not be reproduced, in whole or in Herman von Hebel part, in any form (beyond that copying permitted by U.S. Copyright Law A. The Need to Define Crimes in the Statute 4 in Section 107, "fair use" in teaching and research, Section 108, certain B. The Need for Elements of Crimes? 6 library copying, and except in published media by reviewers in limited C. Status of Elements of Crimes under the Statute.... 7 excerpts), without written permission from the publisher. III. Developing Elements of Crimes 8 Herman von Hebel Manufactured in the United States of America IV What Are Elements of Crimes? 13 Maria Kelt and Herman von Hebel A. Material Elements 14

ι. it„ 11 .a;., j; .0,1 1 1 Bjr.i.othèn:.. ? de 'a C;· ·* " '""·'- ie·\r- ICC-02/04-14-AnxA 13-02-2007 59/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 59/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

graphs of article 85. However, the scope of the rule u^Bbft unchanged, as it was found to reflect the wording of the Statute, which only requires the establishment of CHAPTER 13 criteria for article 85, paragraph 3. Consequently, much more flexibility is left to the Chamber for the application of the two first paragraphs of this article in order to establish the amount of compensation. INTERNATIONAL COOPERATION AND Only one amendment was made to the text during the session in March 2000. JUDICIAL ASSISTANCE At the request of Austria, the word "any" was added before "compensation" in order to take into account that the compensation here is not a right of the person filing the Frederik Harhott end Phakiso Mochochoko request but is left to the discretion of the Chamber which may decide not to award compensation. I. INTRODUCTION VI. CONCLUSION Chapter 11 of the Rules of Procedure and Evidence implements Part 9 of the In conclusion, article 85 and Rules 173 to 175 constitute very good and useful Rome Statute and addresses sensitive issues involving the obligation of States Parties texts for the future International Criminal Court. The lack of such provisions in the to cooperate with the Court and to provide judicial assistance. The rules on these mat- Statutes of the two ad hoc Tribunals for Rwanda and former Yugoslavia has indeed ters are of critical importance to the Court as they reflect the delicate interplay between raised problems in those Tribunals. In respect of certain procedural issues mentioned the Court's jurisdiction and that of States Parties. As many had foreseen after the above, the text of the rules should be supplemented by important principles that are Rome Conference, the drafting of the rules on these particular issues presented some set forth in major international instruments on human rights, such as the European of the most difficult obstacles to reaching consensus through the Preparatory Convention on Human Rights. Commission's drafting process. The draft rules were eventually adopted by consensus on June 30, 2000. Negotiations on the Rules relating to Part 9 of the Statute began during the third session of the Preparatory Commission held from 29 November to 17 December 1999 on the basis of proposals from Australia, France and Italy.' Discussions continued at the fourth session in March 2000, during which the texts of most of the rules for Chapter 9 were finalized. Only a few outstanding issues relating to article 93 and in particular to article 98 remained to be discussed at the fifth session in June 2000. From the beginning of the discussions, memories of the difficult negotiations in Rome were still fresh in the minds of experts on these issues. All recalled the com- plexities of the issues and the delicate compromises that resulted from protracted and sometimes frustrating negotiations. Delegations were eager not to disturb those delicate balances by insisting on additional refinement in the Rules. Delegations thus adopted a cautious approach to the rules on Part 9 and many shared the view that most of the articles were sufficiently clear and detailed and did not require any further elaboration. Another consideration was to avoid tying the hands of the Court by formu-

1. Chapter 11 originally appeared as Part 11 in the draft Rules proposed by Australia (see PCNlCC/1999/DP.l (26 January 1999)), as supplemented by Italy (see PCNlCC/1999/WGRPE (9)/DP.l (23 August 1999)), and then by France (see PCNICC/1999/WGRPE(9)/DP.2 (19 November 1999)). This chapter then emerged as Chapter 14 in the Preparatory Commission's draft Rules. See PCN1CC/2000/WGRPE/L.14 (21 June 2000). In the final compilation of the Rules after the fifth meeting of the Commission in June 2000, however, the chapter came out as Chapter 11. 637 ICC-02/04-14-AnxA 13-02-2007 60/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 60/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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lating detailed and compelling rules for every conceivable situation. Many also felt articles were forgotten or overlooked in the Rules, but underscores the fact that the that the Court should be given as much flexibility as possible in its dealings with Rules were drafted not as mere annotations to each single provision of the Statute, States. More importantly, a general feeling was that Part 9 imposed obligations on but rather as a separate instrument, though subsidiary, to the Statute, in which the States Parties and that it was for these States to put in place domestic procedures for judicial procedures of the Court and the management of its relations with States Parties carrying out these obligations, rather than for the Court to do so. This explains why as well as non-States Parties were to be established. Chapter 1 1 is relatively short in comparison with other Chapters of the Rules. Delegations thus found comfort in the fact that the original Australian proposal, Article 88 establishes the obligation of States Parties to ensure that proper procedures for all forms which formed the basis for discussions, only contained eight rules for Part 9 on inter- of cooperation with the Court are available in their domestic laws. The article reflects a solicitous 2 national cooperation. The French and other delegation's proposals mainly suggested compromise between the horizontal and the vertical approaches to cooperation in that it seeks to amendments to the Australian proposals. In most cases, delegations submitting pro- avoid any final position on whether the States Parties or the Court should have the ultimate con- posals and amendments were always willing to work informally together to consoli- trol over the degree of compliance with the Court's requests. What this article does, instead, is simply to oblige States Parties to enact the necessary legislation in order to enable them to comply date and merge their texts and ideas. Other interested delegations also participated in fully with the Court's requests, thereby precluding the absence of domestic procedures as a legit- these exchanges. Therefore, some of the potential controversies were resolved out- imate ground for refusal to comply with requests. In addition and carefully related to this, articles side the Working Group. 89 and 93 then require that States Parties shall comply with requests in accordance with the provisions of this Part and the procedure under their national law. The delicacy of this balance sug- Chapter 1 1 contains Rules 1 76 to 197 and is subdivided into six sections, each gests that no further provision in the Rules should be added. of which will be examined here. Section I (Rules 176-180) relates to requests for Articles 94 and 95 of the Statute both deal with postponement of execution of the Court's requests cooperation under article 87 of the Statute, while Section II (Rules 181-186) applies pending the outcome of domestic investigations or prosecution and admissibility challenges, to request for surrender and transit of a person being surrendered to the Court, and respectively. In these cases, again, the underlying controversy was that of assigning ultimate con- competing requests under articles 89 and 90 of the Statute. Section III (Rules 187-189) trol over the cooperation scheme to either the Court or the requested State, but postponement of then deals with translation and submission of documents for arrest and surrender execution was finally agreed upon as the proper remedy instead of a simple refusal to execute. This solution calls instead for consultations to be held between the Court and the requested State under articles 91 and 92 of the Statute. Section IV (Rules 190-194) governs other to seek clarification of the reasons for and the extent of postponement, and it was generally forms of cooperation under article 93, and Section V with only one single rule (Rule assumed at the Preparatory Commission that a specific provision in the Rules to this effect would 195) settles the controversial issue of cooperation with respect to waiver of immu- not add anything substantial to what was already covered by article 87 and corresponding Rules nity and, notably, consent to surrender under article 98. Finally, Section VI (Rules 176-180. 196-197) sets out the conditions under which a person surrendered to the Court can Article 96 governs the form and content of requests for assistance other than for arrest and sur- invoke the rule of specialty under article 101 . In these rules, references have been render, which are separately covered by articles 89 to 92. The procedures outlined in article 96 are made to "States Parties" as well as to "requested States." Where no other indication well worded and do not warrant any further clarification beyond the provisions contained in article 99 (see infra). can be inferred from the wording of the Rules or from the context, the term "requested States" means both States Parties and non-States Parties. Article 97 contains an overarching obligation for States Parties to immediately consult with the Court in respect of problems, that may impede the execution of the Court's requests. Like article Thus, it may readily be seen, nine of the articles in Part 9 of the Statute are not 86, article 97 is of a very general nature and needs no further elaboration. supplemented by ancillary rules in Chapter 1 1 .3 This does not imply that these nine Article 99 also reflects the compromise in Part 9 regarding the question of ultimate control over compliance with the Court's requests for assistance. Requests under article 99, thus, shall be exe- 2. See draft Rules 127-134 in the Australian proposal, supra note 1. cuted in accordance with the requested State's own procedures, but in the manner specified in the request, unless this is directly prohibited by law in the requested State. Paragraph 4 of article 99 3. Articles 86, 88, 94-97, 99- 100, and 102 are not directly implemented in the Rules, and this further grants to the Prosecutor the authority to conduct certain necessary on site investigations footnote seeks to explain why. For commentaries on Part 9 articles, see Claus Kress, Kimberly after consultations with the requested State, but without the presence of national authorities. This Prost, Angelika Schlunk and Peter Wilkitzki, "Part 9. International Cooperation and Judicial provision was controversial and could perhaps have merited some further elaboration in the Rules Assistance," in Commentary· on the Rome Statute of the international Criminal Court- Observers ' regarding, inter alia, the determination whether or not the conditions for such unattended inves- Notes, Article by Article 1045-1158 (Otto Triffterer ed.,1999). tigations are met in a given case. Short of any supplementary rule, the principle remains that this Article 86 of the Statute lays down the sweeping obligation of States Parties to "co-operate fully issue must be solved through consultations between the Court and the State Party concerned. with the Court" in accordance with the Statute. The purpose of this very general obligation is to Article 100 outlines the division of costs for execution of the Court's requests on the territory of serve as an interpretative guideline for other provisions in Chapter 11 rather than to provide a sub- requested States. As the Rules do not supplement this article, any further details might, if neces- stantial and enforceable obligation on States Parties. For this reason, the Preparatory Commission sary, be included in the financial regulations and rules. subsequently abstained from farther enhancement of article 86 through any supplementary provision in the Rules. Article 102 is but a terminological provision and clarifies the meaning of the terms "surrender" and "extradition" and does not call for any additional rule. ICC-02/04-14-AnxA 13-02-2007 61/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 61/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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II. REQUESTS FOR COOPERATION UNDER ARTICLE 87 1. Organs of the Court A. Organs Responsible for Communications Rule 176, sub-rule 2, now identifies both organs of the Court to be responsible for the receipt and transmission of communications regarding international cooper- Rule 176: Organs of the Court responsible for the transmission and receipt of any communications relating to International cooperation and judicial assistance ation and judicial assistance. For the sake of simplicity, it might perhaps have been more convenient to have just one organ to handle all of the Court's external relations, 1. Upon and subsequent to the establishment of the Court, the Registrar shall obtain from the Secretary General of the United Nations any communication made by States and this organ would then certainly have been the Registrar, whose role in relation to pursuant to article 87, paragraphs 1 (a) and 2. the parties must always remain neutral. Part 9, to be sure, only speaks indiscrimi- 2. The Registrar shall transmit the requests for cooperation made by the Chambers nately of "the Court" and does not itself justify any division of the power to receive and shall receive the responses, information and documents from requested States. and transmit requests for cooperation between the Registrar and the Office of the The Office of the Prosecutor shall transmit the requests for cooperation made by the Prosecutor. In fact, nowhere in Part 9 is there any reference to be found to either the Prosecutor and shall receive the responses, information and documents from Registrar or the Office of the Prosecutor in relation to requests for cooperation and requested States. judicial assistance.7 While some delegations at the Rome Conference preferred the 3. The Registrar shall be the recipient of any communication from States concern- Registrar to be responsible for all communications with the outside, others expressed ing subsequent changes in the designation of the national channels charged with strong views in Rome that the Office of the Prosecutor should be given its own author- receiving requests for cooperation, as well as of any change in the language in which requests for cooperation should be made, and shall, upon request, make such infor- ity to receive and transmit information on crimes under its investigation, as trans- mation available to States Parties as may be appropriate. mission of all communications exclusively through the Registry could constitute 8 4. The provisions of sub-rule 2 are applicable mutatis mutandis where the Court interference in the Prosecutor's work and was likely to cause delays. This latter view requests information, documents or other forms of cooperation and assistance from prevailed in the end. Article 42 of the Statute clearly demonstrates that the Office of an intergovernmental organization.·4 the Prosecutor is indeed a separate and independent organ of the Court and holds the 5. The Registrar shall transmit any communications referred to in sub-rules 1 and 3 authority in its own right, inter alia, to receive referrals and other information on and rule 177, sub-rule 2, as appropriate, to the Presidency or the Office of the crimes within the jurisdiction of the Court. Article 43 further confirms this by adding Prosecutor, or both. that the Registrar's responsibilities are without prejudice to the functions and powers This rule seeks to identify the organs of the Court responsible for the receipt of the Prosecutor. Moreover, article 54 entitles the Prosecutor to seek independently and transmission of communications. The basis for discussions of this rule were pro-, the cooperation of any State or intergovernmental organization in relation to its inves- posais from Australia, France and Italy.5 A question that arose was whether the Court's tigations, and to enter into any agreement with States and such organizations and per- external relations should be directed through the Registrar only, or whether the sons as may be necessary to facilitate their cooperation. Prosecutor should also be allowed to transmit and receive requests, particularly those For these reasons, Rule 1 76, sub-rule 2, provides the Office of the Prosecutor relating to prosecutions. While the Australian and Italian texts dealt extensively with with separate and independent standing to transmit the Prosecutor's own requests for issues relating to channels of communication with the Court, they both paid very lit- cooperation directly to the requested State and to receive the responses, information tle attention to identifying the particular organs of the Court which would be respon- and documents in return from that State, without the Registrar or any other organ of sible for communications with the outside world. The French proposal separated these the Court as an intermediary. Although Rule 176, sub-rule 2, strictly speaking, only issues and restructured them so as to first identify the organs of the Court that would authorizes the Office of the Prosecutor to require cooperation and receive informa- handle communications in general, and then deal with the channels for such com- tion from States, it is fair to assume that this sub-rule also covers requests made to munications.6 It had been feared that because of the French preoccupation with issues of structure, the Working Group would spend most of its time discussing structure. The initial debate on structure, however, proved to be useful because once these issues 7. Art. 93, para. 5, distinguishes between "the Court" and "the Prosecutor" in cases where the were resolved, it became easy to group all provisions dealing with the same issues requested State has subjected its assistance to certain conditions, which then have to be accepted under their respective rules. and complied with by the Court or the Prosecutor. 8. In the draft Rules originally proposed by Australia, PCNICC/1999/DP.l, Rule 127, and also in the Italian proposal, the Registrar was designated as the sole organ of the Court to handle all 4. This sub-rule was originally proposed by Poland, see PCNICC/2000/WGRPE(9)/DP3 ( 17 requests and other communications relating to cooperation and judicial assistance. The French March 2000). proposal, in contrast, identified the Registrar as the person responsible for transmitting and receiving information on requests for cooperation with the Chambers of the Court, but then designated 5. See supra note 1. the Office of the Prosecutor to transmit requests for cooperation with the Prosecutor and to receive 6. See proposed Rule 9.1 and 9.2 in the French proposal, supra note 1. responses to such requests. Supra note 1. ICC-02/04-14-AnxA 13-02-2007 62/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 62/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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intergovernmental organizations9 and persons.10 Apart from the powers specifically agreements or ad hoc arrangements those States have entered into with the Court. conferred on the Office of the Prosecutor, the Registrar holds all residual authority The Statute, in other words, does not intend to impose obligations on non-States to address States and intergovernmental organizations on behalf of the Court for the Parties beyond their own consent and what follows otherwise from general principles purpose of international cooperation and judicial assistance. It is therefore also for of international law such as the duty to seek equitable solutions to problems and main- the Registrar ex officia to seek and obtain all information from the Secretary-General tain friendly relations. of the United Nations regarding designations made by States upon ratification." B. Channels of Communication | 2. Changes in the Designation of Channels and Language Rule 177: Channels of communication Rule 176, sub-rule 3, entitles the Registrar to receive subsequent communica- i 1. Communications concerning the national authority charged with receiving tions concerning changes in the designation of national channels of communication requests for cooperation made upon ratification, acceptance, approval or accession as well as the chosen language; for some reason, the substance of this sub-rule seems shall provide all relevant information about such authorities. to be restated in Rule 1 80. Compared to Rule 1 80, however, Rule 1 76, sub-rule 3 2. When an intergovernmental organization is asked to assist the Court under article 87, paragraph 6, the Registrar shall, when necessary, ascertain its designated chan- includes an additional obligation on the Registrar to inform other States Parties of nel of communication and obtain all relevant information relating thereto. changes to channels or languages of communication at their request, as may be appropriate. Most other States Parties, presumably, have only little interest in being noti- 1. States Parties ' Designation of Their Channels of fied about such changes and it is therefore either for interested States themselves to Communication request the information, or for the Registrar to provide the information to certain States at his or her discretion. When States become Parties to the Court, they are required to indicate to the UN Secretary-General what channel of communication they have chosen for busi- 3. Failure by Non-State Parties to Comply ness with the Court, including which national authorities they have charged with han- dling the Court's requests for cooperation (Rule 177, sub-rule 1 ). Once this information Article 87, paragraph 5, of the Statute specifically addresses the delicate ques- is deposited with the United Nations, the Registrar may obtain it from the Secretary- tion of remedies against failure by non-States Parties to comply with agreements or General and is then required to pass it on to the Presidency or the Office of the ad hoc arrangements made with the Court for the purpose of providing assistance. Prosecutor, or both (Rule 176, sub-rule 5). But this particular provision was not further elaborated in the Rules. It would have been useful, however, to have addressed in the Rules the conditions under which the Pursuant to rule 177, sub-rule 2, the Registrar (or, in casu, the Office of the Court may refer matters of such non-compliance to the Assembly of States Parties or Prosecutor) must ascertain the proper channel of communication of an intergovern- the Security Council, including the possible remedies against such referral. The same mental organization before transmitting the Court's request for cooperation to such 12 suggestion applies, of course, to cases of non-compliance by States Parties under arti- an organization. For reasons of expediency and coherence, it is suggested here that cle 87, paragraph 7. It is important to note that in every instance of non-compliance the same should apply in cases where a State Party, upon its ratification or accession, by non- State Parties when the non-compliance is sufficiently serious to call for refer- has not designated any particular channel of communication. ral to the Assembly of States Parties or the Security Council, the obligation to cooperate with the Court does not flow directly from the Statute itself, but from the 2. Designation of Channels by Non-States Parties The procedure established in Rule 177, sub-rule 1, obviously, is not available to 9. These international organizations include INTERPOL (The International Criminal Police non-States Parties as they have chosen not to ratify or accede to the Statute. Article Organization). See art. 87, para. l(t>). 87, paragraph 5, of the Statute authorizes the Court to invite a non-State Party to enter 10. Cf. art. 54, para. 3(d) and Rule 176, sub-rule 4. The proposal made by Italy in Rules 9.3 and into ad hoc arrangements for the purpose of providing assistance and cooperation, 9.4, supra note 1, to further elaborate the framework for cooperation between the Office of the but the Rules do not identify the procedure to be followed regarding communication Prosecutor and the Chambers, notably by introducing consultations among them, was abandoned because most delegations preferred to leave it to the Prosecutor and the Chambers to consult each with non-States Parties. In such cases, the most convenient approach would be for other whenever the need arose, rather than to have a rule that would always compel the Prosecutor the Registrar or the Office of the Prosecutor to follow the same procedure as that set to first seek the view of the Chambers. forth in Rule 177, sub-rule 2, namely, to ascertain the requested State's proper chan- 11. In Rule 9.1 of the Coordinator's first Rolling Text, dated 30 November 1999, the obligation was on the Secretary-General to forward information to the Registrar, but the preponderance of opinion favored the opposite solution now found in Rule 176, paragraph 1, in which it is the 12. This sub-paragraph merges the Australian (Rule 129), French (Rule 9.4), and Italian (Rule Registrar's responsibility to obtain the information. 9.1.e) proposals, supra note 1. ICC-02/04-14-AnxA 13-02-2007 63/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 63/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

PCNICC/1999/DP.1

26Januuyl999

Original: English

Preparatory Commission for the International Criminal Court New York 16-26 February 1999 26 July-13 August 1999 29 November- 17 December 1999

Proposal submitted by Australia Draft Rules of Procedure and Evidence of die International Criminal Court*

Contents

Parti General provisions ...... 9 Rule 1. Adoption ...... 9

Rule 2. Authentic texts ...... -r ...... 9 Rule 3. Amendment ...... 9 Rule 4. Definitions ...... 9 Rule 5. Non-compliance with Rules ...... 9 Rule 6. Languages ...... 10 Rule 7. Time limita ...... 10

' The following draft of the Rulet of Procedure and Evidence ii submitted by the délégation of Australia to assift the Pre|Mr«ory Commission in to week oo the Rote» of tte bteniatiotul Criminal Court. Th* delegation of AuitnU· hopei UMI this draft could provide t Matting point for the work of the Commission on this element of its mandat·.

The approach taken in the draft on any particular issue does not necessarily reflect the final view of the Government of Australia.

ι·ι·ι·ι·ΐΗΐιη·ι·99-01990 (E) ι ICC-02/04-14-AnxA 13-02-2007 64/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 64/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

PCNICC/199MIP.1

Pert 2 Composition and administration of the Court U Section 1. General 11 Rule 9. Solemn undertaking j | Rule 9. Serious misconduct 11 Rule 10. Serious breach of duty U Rule 11. Misconduct of a less serious nature 12 Section 2. The judges 13 Rule 12. Plenary sessions of the Court 13 • Rule 13. Quorum for plenary sessions 13 Rule 14. Voting at plenary sessions 13 Rule 15. Precedence 13 Rule 16. Excusing of judges 14 Rule 17. Disqualification of judges 14 Rule 18. Death or resignation of a judge 15 Rule 19. Procedural requirements in the application of article 46 to a judge 15 Rule 20. Procedural requirements in the application of article 47 and rule 11 to judges ... 16 Section 3. The Presidency 16 Rule 21. Death, resignation or removal from office of the President or a Vice-Président .. 16 Rule 22. Replacements 16 Section 4. The Chambers 17 Rule 23. Presiding judges 17 Section 5. The Registry 17 • Rule 24. Qualifications and election of the Registrar 17 Rule 25. Functions of the Registrar 17 Rule 26. Operation of the Registry IS Rule 27. Records 1β Rule 28. Qualifications and election of the Deputy Registrar 19 Rule 29. Role of me Deputy Registrar 19 Rule 30. Selection of officer of the Registry to serve as acting Registrar on a temporary basis 20 Rule 31. Solemn undertaking by staff of Registry 20 Rule 32. Death or resignation of the Registrar 20 Rule 33. Death or resignation of the Deputy Registrar 21 ICC-02/04-14-AnxA 13-02-2007 65/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 65/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

Rute 34. Procedural requirements in the application of article 46 to the Registrar or the Deputy Registrar 21 Rule 35. Procedural requirements in the application of article 47 and rule 11 to die Registrar or the Deputy Registrar 22 Rule 36. Death, resignation or removal from office of the Registrar 22 Rule 37. Death, resignation or removal from office of the Deputy Registrar 23 Rule 38. Establishment of the Victims and Witnesses Unit 23 Rule 39. Solemn declaration by interpreters and translators 23 Section 6. The Office of the Prosecutor 24 Rule 40. Delegation of the Prosecutor's functions 24 Rule 41. Operation of the Office of the Prosecutor 24 Rule 42. Retention of information and evidence 24 Rule 43. Arrangements with States 24 Rule 44. Deputy Prosecutor to act as Prosecutor 25 Rule 45. Interim Prosecutor 25 Rule 46. Solemn undertaking 25 Rule 47. Excusing of the Prosecutor or a Deputy Prosecutor 26 Rule 48. Disqualification of the Prosecutor or a Deputy Prosecutor 26 Rule 49. Death or resignation of the Prosecutor 27 Rule 50. Death or resignation of a Deputy Prosecutor 27 Rule 51. Procedural requirements in the application of article 46 to a Deputy Prosecutor.. 27 Rule 52. Procedural requirements in the application of article 47 and rule 11 to a Deputy Prosecutor 28 Section 7. Appointment, assignment and qualifications of defence counsel 29 Rule 53. Appointment and qualifications of counsel 29 Ruk 54. Assignment of counsel to indigent persons 29 Rule 55. Code of Professional Conduct 30 Part 3 Jurisdiction and admissibility 31 Part 4 Investigation and prosecution 32 Section 1. Decision by the Prosecutor not to initiate an investigation 32 Rule 56. Decision by Prosecutor under article 53, paragraph 1 (c) 32 Rule 57. Review at the request of a State Party or the Security Council of a decision by the Prosecutor under article 53, paragraph 1, not to proceed with an investigation 32 ICC-02/04-14-AnxA 13-02-2007 66/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 66/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

PCNICC/1999/DP.l

Ruk 58. Review by the Pre-Trial Chamber on to own initiative of a decision by the Prosecutor not to proceed with an investigation 32 Section 2. Conduct of investigation 33 Rule 59. Recording of questioning where article 55, paragraph 2, is applicable 33 Sections. Decision by the Prosecutor that there is nota sufficient basis for prosecution 34 Rule 60. Decision by the Prosecutor under article 53, paragraph 2 34 Rule 61. Review at the request of a State Party or die Security Council of a decision by the Prosecutor that there is not a sufficient basis for a prosecution 34 Rule 62. Review by the Pre-Trial Chamber on its own initiative of a decision by the Prosecutor that there is not a sufficient basis for a prosecution 34 Section 4. Initial proceeding» before the Court 35 Rule 63. Initial proceeding« before the Court 35 Section 5. Confirmation of charges 35 Rule 64. Confirmation of charges 35 Rule 65. Prior statements of a person subject to a hearing under article 61 35 PartS Disclosure 36 Rule 66. Issue of disclosure orders by the Pre-Trial Chamber prior to hearing under article 61 36 Rule 67. Pre-trial disclosure relating to prosecution witnesses 36 Rule 68. Inspection of material in possession or control of the Prosecutor 37 Rule 69. Disclosure by the defence regarding the defence of alibi and certain grounds for excluding criminal responsibility recognized under article 31, paragraph 1 37 Rule 70. Procedures for raising a ground for excluding criminal responsibility under article 31, paragraph 3 38 Rule 71. Restrictions on disclosure 38 Rule 72. Ruling on exculpatory evidence 40 Rule 73. Continuing requirement to disclose 40 Part 6 Thetrial 41 Section 1. Orders relating to the release or detention of the accused person 41 Rule 74. Function of the Trial Chamber 41 Rule 75. Review of order of the Pre-Trial Chamber 41 Section 2. Control of preparations for trial 41 Rule 76. Status conferences 41

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Section 3. Motions 42 Rule 77. Preliminary motions 42 Rule 78. Motions during trial 42 Section 4. Treatment of the accused 43 Rule 79. Medical examination of the accused 43 Rule 80. Instruments of restraint 43 Section 5. Joint and separate trials 43 Rule 81. Grounds for severance 43 Rule 82. Conduct of joint trials 44 Section 6. Records and evidence 44 Rule 83. Records of proceedings 44 Rule 84. Custody of evidence 44 Section 7. Amicus curiae 44 Rule 85. Amicus curiae 44 Section 8. Control of proceedings 45 Rule 86. Exclusion of persons from hearing 45 Section 9. Victims and witnesses 45 Rule 87. Solemn undertaking 45 Rule 88. Means of giving evidence 46 Rule 89. Conduct of proceedings in camera and presentation of evidence by electronic or other special means to protect victims and witnesses 46 Rule 90. Process of examination 46 Rule 91. Self-incrimination by a witness 47 Rule 92. Presentation of the views of victims 47 Section 10. Decision and sentencing 47 Rule 93. Sentencing hearing 47 Rule 94. Delivery of decision 47 Section 11. Reparations 48 Rule 95. Procedure for determining orders for reparations 48 Part 7 Rules of evidence 49 Rule 96. General provisions 49 Rule 97. Agreements as to evidence 49 Rule 98. Ruling on the relevance or admissibility of evidence 49 Rule 99. Evidence of consistent pattern of conduct 50 ICC-02/04-14-AnxA 13-02-2007 68/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 68/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Rule 100. Confessions 50 Rule 101. Evidence in cases of sexual assault 50 Rule 102. Lawyer-client privilege 51 Parts Penalties 52 Section 1. Sentences of imprisonment 52 Rule 103. Factors in determining sentence to be imposed 52 Section 2. Fines 52 Rule 104. Maximum amount of une 52 Rule 105. Criteria for the imposition of fuies S3 Rule 106. Consequences of non-payment of fine 53 Section 3. Forfeiture 53 Rule 107. Forfeiture orders 53 Part 9 Appeal 54 Section 1. General 54 Rule 108. Rules governing proceedings in the Appeals Chamber 54 Rule 109. Amicus curiae 54 Section 2. Appeals against a decision of a Trial Chamber under article 74 or a sentence imposed by a Trial Chamber under article 76 54 Rule 110. Notice of appeal 55 Rule 111. Appeals by both parties 55 Rule 112. Discontinuance of an appeal 55 Rule 113. Record on appeal 56 Rule 114. Appellant's brief 56 Rule 115. Respondent's brief 56 Rule 116. Date of hearing 56 Rule 117. Additional evidence 57 Section 3. Appeals under article 81, paragraph 3 (c) (ii), and article 82, paragraphs 1 and 2 — 57 Rule 118. Notice of appeal against decision under article 81, paragraph 3 (c) (ii) 57 Rule 119. Nortec of appeal under article 82, paragraph 1 (a) to (c) 57 Rule 120. Leave to appeal under article 82, paragraph 1 (d) 57 Rule 121. Leave to appeal under article 82, paragraph 2 58 Rule 122. Procedure for appeals under article 81, paragraph 3 (c) (ii) and article 82, paragraphs 1 and 2 58 ICC-02/04-14-AnxA 13-02-2007 69/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 69/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Rule 123. Judgement on appeals under article 81, paragraph 3 (c) (ii), and article 82, paragraphs 1 and 2 58 Section 4. Appeals against orders under article 75 59 Rule 124. Notice of appeal under article 82, paragraph 4 59 Rule 125. Procedure for appeals under article 82, paragraph 4 59 Rule 126. Judgement on appeals under article 82, paragraph 4 60 Part 10 Offences against the administration of justice and sanctions for misconduct before the Court ... 61 Part 11 International cooperation and judicial assistance 62 Section 1. Channels of communication and languages 62 Rule 127. Channels of communication with States Parties 62 Rule 128. Channels of communication with States not party to the Statute 62 Rule 129. Channels of communication with intergovernmental organizations 63 Rule 130. Change of language nominated under article 87, paragraph 2 63 Rule 131. Language of requests directed to States not party to the Statute 63 Section 2. Arrest and surrender 63 Rule 132. Time limit in relation to provisional arrest 63 Rule 133. Arrangements for surrender 64 Section 3. Other forms of cooperation 64 Rule 134. Transfer of a person in custody 64 Part 12 Enforcement 65 Section 1. Designation of State of enforcement 65 Rule 135. Principles of equitable distribution 65 Rule 136. Views of sentenced person 65 Section 2. Matters relating to serving a sentence of imprisonment 65 Rule 137. Transfer of sentenced person to State of enforcement 65 Rule 138. Application by sentenced person for transfer from State of enforcement 66 Rule 139. Limitation on the prosecution or punishment of the sentenced person for other offences 66 Section 3. Review by the Court concerning reduction of sentence 66 Rule 140. Additional factors to be taken into account by the Court in its initial review of sentences 66 Rule 141. Frequency of subsequent reviews of sentence 67 Rule 142. Criteria to be applied at subsequent reviews 67 ICC-02/04-14-AnxA 13-02-2007 70/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 70/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Section 4. Fine· and forfeiture measures 67 Rule 143. Enforcement of find and forfeiture order* 67 Part 13 Revision and compensation 68 Section 1. Revision 68 Rule 144. Application for revision 68 Rute 145. Final determination of an application for revision 68 Section 2. Compensation 69 Rule 146. Application for compensation under article 85, paragraph 1 69 Ruk 147. Application for compensation under article 85, paragraph 2 69 Rule 148. Application for compensation under article 85, paragraph 3 69 Rule 149. Criteria for the awarding of compensation under article 85, paragraph 3 69

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Part 11 International cooperation and judicial assistance Section 1. Channels of communication and languages Rule 127 Channels of communication with States Parties

(a) As provided for in article 87, paragraph 1, if a State Party wishes to employ a channel of communication with the Court other than the diplomatic channel, it shall designate that channel upon ratification, acceptance, accession or approval. In making such a designation, a State Party shall provide all relevant details required by the Court concerning the national authority charged with receiving requests from the Court. (b) If a State Party has not made a designation under sub-rule (a), it may do so subsequently in writing to the Registrar. In doing so, it shall provide all relevant details required by the Court concerning the national authority charged with receiving requests from the Court. (c) A State Party shall notify me Registrar in writing of any change in its designated channel of communication at the earliest opportunity. (N.B. This rale is Intended to addresi the designation of channel* of communication by States Parties which is dealt with in article 87, paragraph 1. Sub-rule (a) allows the Court to require a State Party to provide relevant Information on the national authority charged with receiving requests. Sub-rate (b) allows a State Party which did not make a de*ignation upon ratification, acceptance, accession or approval to do so subsequently. Although this is not explicitly provided for in article 87, paragraph 1, nothing in that provision appears to prohibit the Rules allowing for designation after ratification, acceptance, accession or approval. Sub-rules (b) and (c) nominate the Registrar to receive notification of designations of channels of communication and changes thereto.)

Rule 128 Channeb of communication with State» not party to the Statute

When a State not party to the Statute is to provide assistance to the Court under article 87, paragraph S, the Registrar shall seek advice in writing of its designated channel of communication with the Court, requesting all relevant details to enable contact to be made with the national authority charged with receiving requests from the Court. (N.B. This rule creates a process for establishing the designated channel of communication of a State not party to the Statute which has agreed to cooperate with the Court. It is appropriate to have a separate provision dealing with such States.) ICC-02/04-14-AnxA 13-02-2007 72/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 72/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Rule 129 Channels of communication with intergovernmental organizations

When an intergovernmental organization has agreed to provide assistance to the Court under article 87, paragraph 6, the Registrar shall seek advice in writing of its designated channel of communication with the Court, requesting all relevant details to enable contact to be made. (N.B. This rule creates a process for establishing the designated channel of communication of an intergovernmental organization which has agreed to cooperate wit· the Court.)

Rule 130 Change of language nominated under article 87, paragraph 2

A State Party shall notify the Registrar in writing at the earliest opportunity of any change to the language it has nominated under article 87, paragraph 2. (N.B. This rule nominate· the Registrar to receive notification of a change to the langnage a State Party has nominated under article 87, paragraph 2.)

Rule 131 Language of requests directed to States not party to the Statute

Where a State not party to the Statute is to provide assistance to the Court under article 87, paragraph 5, the Registrar shall request it in writing to make the choice as to language which a State would make under article 87, paragraph 2, upon ratification, acceptance, accession or approval. (N.B. This rale allows a State not party to the Statute to nominate a language In which It will receive requests or Into which It requires requests to be translated.)

Section 2. Arrest and surrender Rule 132 Time limit in relation to provisional arrest

A person who has been provisionally arrested in accordance with article 92 may be released from custody upon the expiration of (X) days from the date ofthat person's arrest, if the requested State has not received the request for his or her surrender and required supporting documents. (N.B. This rale is intended to meet the requirement In article 92, paragraph 3, that the Rules set a time limit for receipt of the request for surrender and the required supporting documents where a person has been provisionally arrested.) ICC-02/04-14-AnxA 13-02-2007 73/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 73/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Rule 133 Arrangements for surrender

(a) The requested State shall immediately inform the Registrar when the person sought by the Court is available for surrender. (b) The person shall be removed from the territory of the requested State by the date agreed upon between the authorities of the requested State and the Registrar. The date set shall allow a reasonable period of time for the removal to take place. If the person is not removed by that date, he or she may be released from custody. (c) If circumstances prevent the removal of the person by the date agreed, the authorities of the requested State and the Registrar shall agree upon a new date by which the person shall be removed and sub-rule (b) shall apply. (d) The Registrar shall maintain contact with the authorities of the host State in relation to arrangements for the removal of a person. (N.B. Part 9 of the Statute does not address the arrangements for the physical surrender of persons to the Court This rule proposes a regime to address the natter. Article 59, paragraph 7, provides that when a person is ordered to be surrendered to the Court, he or she "shall be delivered to the Court as soon as possible".)

Section 3. Other forms of cooperation Rule 134 Transfer of a person in custody

(a) Transfer of a person in custody to the Court in accordance with article 93, paragraph 7, shall be arranged by the national authorities concerned in liaison with the Registrar and die authorities of the host State. (b) The Registrar shall ensure the proper conduct of the transfer, including the supervision of the person while in the custody of the Court. (c) The person in custody shall have the right to raise matters concerning his or her detention with the relevant judge or Chamber and the authorities of the requested State. He or she shall be permitted to address such matters in person before the relevant judge or Chamber. (d) In accordance with article 93, paragraph 7 (b), when the purposes of the transfer have been fulfilled, the Registrar shall arrange for the return of the person hi custody to the requested State. (e) Where the requested State informs the Registrar that the transferred person is no longer required to be held in custody, that person shall be released immediately. (f) Upon release under sub-rule (e), a person shall be treated as if he or she is assisting the Court under article 93, paragraph 1 (e). (N.B. This rule seeks to establish a regime to govern the transfer of persons in custody to assist the Court In doing so, It draws, in part, on rule 90 bis of the ICTY Rules and the practice governing the transfer of persons In custody to assist ta Investigations and prosecutions ander mutual assistance In criminal matters treaties.) ICC-02/04-14-AnxA 13-02-2007 74/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 74/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Parti! Enforcement Section 1. Designation of State of enforcement Rule 135 Principle« of equitable dUtribution

(N.B. Article 103, paragraph 3, require* the Court, In exercising lu discretion to dMlgmite a State of enforcement, to take account of a number of factors. One factor Is the need for States Parties to share responsibility for enforcing sentences of imprisonment in accordance with "principles of equitable distribution" which are to be established In the Rules.)

Rule 136 Views of sentenced person

(a) As required by article 103, paragraph 3(c), the Court shall take into account the views of the sentenced person in exercising its discretion to designate a State of enforcement. (b) The Court shall give notice in writing to the sentenced person that it is addressing the designation of a State of enforcement. The sentenced person shall have (X) days from the date upon which the notice is received to advise the Court in writing whether he or she wishes to provide any views on the question of designation. (c) Within (X) days of receiving written advice from the sentenced person that he or she wishes to provide views, the Court shall hold a hearing to allow the sentenced person to make oral submissions on the designation of the State of enforcement Prior to the hearing, the sentenced person may also make written submissions to the Court. (N.B. This rule seeks to establish a procedural regime to permit the sentenced person to communicate hb or her views OB the designation of the State of enforcement to the Court)

Section 2. Matters relating to serving a sentence of imprisonment Rule 137 Transfer of sentenced person to State of enforcement

(a) The sentenced person shall be transferred to the State of enforcement as soon as possible after it is designated. (b) The Registrar shall ensure the proper conduct of the transfer in liaison with the authorities of the State of enforcement and the host State. (N.B. The Statute does not address the administrative arrangements for the physical transfer of a sentenced person to a State of enforcement This rate provides a structure for those arrangements.)

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PCNICC/1999/WGRPE(9)/DP.I

23 August 1999 English Original: French

Preparatory Commission for the International Criminal Court Working Group on Rules of Procedure and Evidence New York 16 26 February 1999 26 July 13 August 1999 29 November-17 December 1999

Proposai submitted by Italy concerning Part 9 of the Rome Statute of the International Criminal Tribunal, on international cooperation and judicial assistance Section 1. General provisions

Rule 9.1 Channels of communication with States and intergovernmental organizations

(a) If a State Party wishes to communicate with the Court by means of a channel other than the diplomatic channel, it must designate this channel, as stipulated in article 87, paragraph 1, upon ratification, acceptance, approval or accession. When making such a designation, a State Party must indicate all information required by the Court with regard to the national authorities which are competent to receive requests from the Court. (b) If a State Party wishes to have requests for cooperation and documents supporting the request drafted in its official language, it must so state at the time of ratification, acceptance, approval or accession. (c) If a State Party has not made the designation or statement provided for in subparagraphs (a) and (b), it may do so subsequently in writing. In such cases the State Party must provide all the information required by the Court as regards the national authorities competent to receive requests from the Court. (d) When a State not party to the Statute agrees to provide assistance to the Court pursuant to article 87, paragraph 5, it may designate a channel of communication other than the diplomatic channel. In making such a designation, the State not party must indicate all information regarding the national authorities competent to receive requests from the Court.

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(e) When an intergovernmental organization agrees to provide assistance to the Court pursuant to article 87, paragraph 6, it must designate the channel by which it intends to communicate with the Court. (0 Any change regarding the designated channel of communication or the language chosen must be notified to the Registrar.

Explanatory remarks Subparagraphs (a) and (b) govern, respectively, the cases of the designation, in the content of cooperation with Stales Parlies, of a channel other than the diplomatic channel (the use of which is optional for the Court) or of a statement regarding the use of the official language of the requesting State rather than the working languages of the Court (the use of the language chosen is compulsory for the Court). Subparagraph (c) governs a subsequent designation/statement. The authority competent to receive the designation is indicated in rule 9.5, concerning the competence of the Registrar. Subparagraph (d) concerns the (optional) designation of the channel of communication bv a State not party which is cooperating with the Court. In this case, the modalities (contemporaneous or subsequent designation) are taken up in the agreement or ad hoc arrangement. It has therefore heen deemed preferable not to include any reference to the possibility open to the State not party of using a language other than the working languages oj the Court. The problems in specifying the entity that is to receive requests for cooperation addressed to intergovernmental organizations make it necessary for the latter to designate it. Moreover, the wording of subparagraph (e) is intended to create obligations not for intergovernmental organizations but for the Court to reach an understanding with them. In accordance with rule 9.5, Subparagraph (f> identifies the Registrar as the entity competent to receive communications notifying subsequent changes of the channel of communication with the Court or of language.

Rule 9.2 Agreements regarding judicial cooperation

(a) The agreements provided for in article 87, paragraphs 5 and 6, shall be concluded by the President, acting on behalf of the Court, after deliberation in the cases and in the form stipulated in the rules of procedure. (b) The Prosecutor may conclude agreements pursuant to article 54, paragraph 3.

Explanatory remarks // is understood that the President of the Court, by analogv with article 3, paragraph 2, concerning the headquarters agreement, shall be the entity acting on behalf of the Court and shall refer to the Rules of Procedure as regards any conditions for the conclusion of cooperation agreemen ts. Subparagraph (b) recapitulates the powers vested in the Prosecutor under the Statute. ICC-02/04-14-AnxA 13-02-2007 77/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 77/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Rule 9.3 Functions and powers of the Chambers and the Prosecutor in the area of judicial cooperation

(a) The surrender of persons shall be requested by the Chamber issuing the warrant to be executed. In other cases cooperation shall be requested by the Chamber concerned with the accomplishment of the act. (b) The Prosecutor may request cooperation in the case of acts that relate to his/her specific areas of competence.

Explanatory remarks Subparagraph (a) specifies that the Chamber issuing the warrant to he executed is the entity competent to request the surrender of persons. The wording covers both the Pre-Trial Chamber when it acts in accordance with article 58 of the Statute and the Chamber conducting the trial or making the arrest. In the latter case, the generic reference to the "warrant to be executed" makes it possible for Part 9 to include solutions thai should be accepted during the discussion on "executive " competence under Parts M and 10 while referring also to arrests that have been appealed or reversed on appeal. In any case, it is clear that the Stutute makes no provision lor norms that confer executive powers on the Prosecutor. As for other forms of cooperation, the reference to the "Chamber concerned with the accomplishment of the act " is intended to cover both the Pre- Trial Chamber, acting in accordance with article 56 of the Statute (activities which cannot be repeated), and the Chamber conducting the trial. Subparagraph (b) simply recognizes the provisions of the Statute (article 54, paragraph 3 (ci).

Rule 9.4 Consultations with the Court

(a) In the cases provided for in article 72, paragraphs 5 and 7, article 89, paragraphs 2 and 4, article 91, paragraph 4, article 93, paragraphs 3 and 5, article 96, paragraph 3, and article 97, the consultations must be held with the Chamber that requested the cooperation. (b) When cooperation is requested by the Prosecutor, the consultations must be held with the Prosecutor.

Explanatory remarks This provision is intended to specify the entity with which States must consult to address problems resulting from the execution oj the request, after it has been modified or supplemented if necessary.

Rule 9.5 Competence of the Registrar in the area of judicial cooperation

(a) The Registrar shall receive and keep the designations of the channels of communication and languages to be used in processing requests for judicial cooperation. ICC-02/04-14-AnxA 13-02-2007 78/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 78/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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(b) The Registrar shall receive warrants addressed to the Court and shall be responsible for transmitting acts of the Court to States and intergovernmental organizations. (c) On the basis of instructions issued by the Court and in relations with States and intergovernmental organizations, the Registrar shall be responsible for the execution of requests for judicial cooperation.

Explanatory remarks This provision identifie.'! the administrative competence of the Registrar. As regards the transmittal of requests to Stales, the wording used here is that used in the Rules of Pmcedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia.

Rule 9.6 Questions relating to the question of whether a case may go to trial

(a) In order to exercise the facility provided for in article 95, the Registrar shall notify the State or intergovernmental organization whose cooperation is requested without delay of any challenge made to the Court's jurisdiction. When the Court authorizes the adoption of the measures set out in article 19, paragraph 8, the decision shall be communicated without delay to the State or intergovernmental organization whose cooperation is requested. (b) The communications referred to in the preceding subparagraph must be made by the Prosecutor upon requesting assistance.

Explanatory remarks This provision is intended to update article 95 of the Statute, which allows Stales whose cooperation is requested to postpone execution of a request in respect of an admissibility challenge. This facility cannot be exercised when the Court has authorized the Prosecutor to take the measures set out in article 19. paragraph 8. Even if that provision is directed at the Prosecutor, it contains a reference to arrest as provided for in article 5(V, . . _ case requested by the Pre-Trial Chamber. It would therefore seem correct to treat cooperation requested by the Court and cooperation requested by the Prosecutor separately. The reference to intergovernmental organizations rectifies an oversight in the text of the Statute.

Section 2. Arrest and surrender

Rule 9.7 Provisional arrest

The State shall immediately notify the Court of any provisional arrest made pursuant to article 92. The person arrested shall be released if within days after his/her arrest the request for surrender and the documents supporting the request have not been received by the requesting State. ICC-02/04-14-AnxA 13-02-2007 79/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 79/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Explanatory remarks This is a provision which the Statute has expressly re/erred to the Rules of Procedure and Evidence. The first sentence introduces the obligation to communicate the arrest to the Court immediately. The second sentence fixes the date from which the term runs, with reference to the arrest and not to the communication. The solution adopted here is consistent with that deriving from the European Convention on Extradition (article 16, paragraph 4). The usual period is 40 to 45 days.

Rule 9.8 Agreements for execution of surrender

(a) The State shall communicate to the Registrar without delay its decision to surrender the person requested as well as the place and the date as of which the surrender may be made. (b) The period within which the surrender may be made shall be days as of the date specified in subparagraph (a); subsequent to a substantiated request, it may be extended a further days. (c) The person shall be released if he/she has not been taken into custody within the period or extension thereof specified in subparagraph (b). ICC-02/04-14-AnxA 13-02-2007 80/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 80/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

PCNICC /I999/WGRPE(9)/DP.2

19 November 1999 English Original: French

Preparatory Commission for the International Criminal Court Working Group on Rules of Procedure and Evidence concerning Parts 9 and 10 of the Statute New York 16-26 February 1999 26 July-13 August 1999 29 November-17 December 1999

Proposal submitted by France concerning part 9 of the Rome Statute of the International Criminal Court on international cooperation and judicial assistance Part 9 of the Statute

Part 9 of the Statute contains many references to the Rules of Procedure and Evidence anti deals with complex legal issues for which the practical, routine functioning of the Court needs to he organized. Australia, in document PCNICC/1999/DP.l, deals with several of these issues. The French proposals are mainly hasedon the rules proposed hv Australia. France also suggests a few additions. The rules are presented in the order of the articles of the Statute, numbered according to the method adopted thus far by the Preparatory Commission. They are based on: - Rules 127 to 134 contained in the document submitted h\· Australia (PCNICC/1999/DP.l) - The rules contained in the general outline proposed hv France (PCNICC/1999/DP.2).

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PCNICC/1999/\VGRPE(9)/DP.2

Article 87

Rule 9.1. Organs of the Court responsible for the transmission and receipt of communications relating to international cooperation and judicial assistance (This rule, placed before rule 127 proposed by Australia, specifies the organs responsible for the actual transmission and receipt of all communications relating to cooperation.)1 (a) The Registrar shall transmit the requests for cooperation made by the Chambers of the Court and shall receive the responses from requested States. The Office ofthe Prosecutor shall transmit the requests for cooperation made by the Prosecutor and shall receive the responses from requested States. (b) The Registrar shall be the recipient of any communication from States concerning the designation or subsequent change in the designation of those national channels charged with receiving requests for cooperation made by the Court, as well as of any communications from States concerning the choice of or change in the language in which requests for cooperation should be made. The Registrar shall transmit any such communications to the Office ofthe Prosecutor and to the Presidency.

Rule 9.2. Channels of communication with States Parties (This rule is based on rule 127 proposed bv Australia.) Sub-rule (a) suggested by A astral ia: after the first sentence, the following sentence would be added, to replace the rest ofthe paragraph: "Upon request by the Court, a State Party shall provide all relevant information concerning the national authority charged with receiving requests for cooperation". This wording avoids making a reference to the date of deposit ofthe instrument of ratification (rule 107 suggested by Australia); indeed, the Court will not exist until the first 60 instruments of ratification have been deposited. Sub-rule (h) suggested by Australia: France suggests that it should be deleted, as it seems to contradict the Statute. If a State has not made a designation of authority, then it has chosen the diplomatic channel. This sub-rule relates l o the provisions for changing the channel of communication. Sub-rule (c) suggested by Australia: it could be supplemented by a second sentence as follows: "Such a change shall take effect only in respect of requests for cooperation made by the Court three months a ft er the date on which the Court has received notification ofthe change." France also suggests the addition of two paragraphs to rule 12 7 proposed by Australia: "(d) When a request for cooperation does not contain all necessary documents, the requested State shall so notify the Court, which shall then complement its request. "(e) If the Court deems it necessary, it may request a State Party to acknowledge receipt of a request for cooperation."

This issue coulj also be dcall with in part 4. ICC-02/04-14-AnxA 13-02-2007 82/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 82/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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These provisions make it possible to correct speedily any purely material errors oj the Court relating either to the content or to the addressee of a request. Rule 9.3. Channels of communication with States not party to the Statute (This rule draws on rule 128 proposed by Australia, but is drafted to correspond strict Iv with the wording of article 87. paragraph 5.) When a State not party to the Statute has agreed to cooperate with the Court in accordance with the provisions of article 87, paragraph 5, and has not designated thereupon a channel of communication with the Court, the Registrar shall request it in writing to make such a designation and to provide the relevant information concerning the national authority charged with receiving requests for cooperation. The provisions of rule 9.2 shall apply mutatis mutandis to requests for cooperation transmitted to States not party to the Statute.

Rule 9.4. Channels of communication with intergovernmental organizations (This rule draws on rule 129proposed by Australia, but is drafted to correspond more strictly with the wording of article 87. paragraph 6.) When an intergovernmental organization is called upon to cooperate with the Court in accordance with the provisions of article 87, paragraph 6, and the organization has not designated thereupon a channel of communication with the Court, the Registrar shall request it in writing to make such a designation and to provide the relevant information concerning the authority charged with receiving requests for cooperation. The provisions of rule 9.2 shall apply mutatis mutandis to requests for cooperation transmitted to an intergovernmental organi/ation.

Rule 9.5. Change of language designated under article 87, paragraph 2 (This rule draws on rule 130 proposed by Australia.) In order to resolve the problem of a State Party which has omitted to make a choice, and for the sake of clarity, this rule should begin with the following paragraph: ''When the requested State Party has not chosen a language for communication with the Court, the Registrar shall ask the requested Slate to make such a choice in accordance with article 87, paragraph 2. If that State does not proceed to do so, the requests for cooperation shall either be in or be accompanied by a translation into one of the working languages of the Court." After that, the Australian text would remain unchanged, and the following sentence would be added, reading: "Such a change shall take effect only in respect of requests for cooperation made by the Court 90 days after the dale on which the Court has received notification of the change."

Rule 9.6. Language of requests directed to States not party to the Statute (This rule draws on rule 131 proposed by Australia, but is closer to the wording of article 87.) When a State not parly to the Statute has agreed to cooperate with the Court in accordance with the provisions of article 87, paragraph 5, and has not made a choice of language, the Registrar shall request it in writing to make such a choice. ICC-02/04-14-AnxA 13-02-2007 83/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 83/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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If thai State does not proceed to do so, the requests for cooperation shall either be in or be accompanied by a translation into one of the working languages of the Court. A change in the choice of language shall take effect only in respect of requests for cooperation made by the Court 90 days after the date on which the Court has received notification of the change.

Rule 9.7. Procedure applicable to article 87, paragraphs 5 and 7 (a) At the request of the Prosecutor, of the Defence or of the victims or their legal representatives acting pursuant to article 75 or article 57, paragraph 3 (e), in accordance with rules (x) to (xx), or on its own motion, the Chamber of the Court dealing with the case or the Chamber which has ruled on the case may examine an issue related to article 87, paragraphs 5 or 7. (b) As soon as an issue is brought before the Chamber in accordance with the provisions of sub-rule (a), the Chamber shall inform the State concerned and call for any observation that State may wish to make. The Chamber shall inform the State concerned and, if applicable, those parties which brought the matter to its attention, of the effect given, if any, to the matter raised in accordance with sub-rule (a).

Article 89

Rule 9.8. Challenge to admissibility of a case before a national court (article 89, paragraph 2) When a situation described in article 89, paragraph 2, arises, and without prejudice to the provisions of article 19 and of rules (n) to (nn) on procedures applicable to challenges to the jurisdiction of the Court or to the admissibility of a case, the Chamber of the Court dealing with the case shall, if the admissibility ruling is still pending, lake all appropriate steps to ensure that the person concerned is able to present to the Court the grounds on which he or she challenges the admissibility ofthe case on the basis of article 20.

Rule 9.9. Request for transit (article 89, paragraph 3 (c)> (a) In situations described in article 89, paragraph 3 (e), the Court may transmit the request for transit to the State concerned by any medium capable of delivering a written record. (b) When the time limit provided for in article 89, paragraph 3 (e), has expired and the person concerned has been released, such a release shall be without prejudice to a subsequent arrest ofthe person concerned in accordance with the provisions of article 92 or article 89.

Article 90

Rule 9.10. Competing requests in the context of a challenge to the admissibility of a case ICC-02/04-14-AnxA 13-02-2007 84/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 84/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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(a) In the context of a challenge to the admissibility of a case, a Chamber of the Court, when determining the matter of admissibility of a case based on the fact that there are both a request by the Court for the surrender of a person and a competing request for extradition, as described in article 90, paragraph 1, may ask the requested State how it has decided to proceed upon the competing request for extradition. Such a request for information from the Court is without prejudice to the consideration of other issues of admissibility described in article 17. (b) In situations described in article 90, paragraph 8, the decision of the requested Slate shall be transmitted lo the Prosecutor, who shall act, if necessary, in accordance with article 19, paragraph 10.

Article 92

Rule 9.11. Time limit in relation to provisional arrest France supporta the Australian proposal for rule 132, and suggests that the time limit should be 41) days.

Rule 9.12. Transmission of documents supporting the request When a person has consented to surrender in accordance with the provisions of article 92, paragraph 3, and the requested State proceeds to surrender the person to the Court, the Court may then ask the requested State whether it is still necessary, after the surrender, that the State should be provided with the documents described in article 91.

Rule 9.13. Arrangement for surrender France supports the Australian proposal for rule 133.

Article 93

Rule 9.14. Assurance provided by the Court under article 93, paragraph 2 The Chamber of the Court dealing with the case may provide the assurance described in article 93, paragraph 2, at the request of the witness or the expert concerned, or at the request of any party to the proceedings. Without prejudice to protective measures, if any, granted by the Court to the witness or expert, the Chamber shall notify those participating in the proceedings of this request and ask them whether they have any observations to make in writing. The Chamber shall also inform them of any effect it may give lo the request.

Rule 9. IS. Transfer of a person in custody (This rule draws on rule 134 proposed by Australia relating to the application of article 93, paragraph 7.) The Australian proposal is generally acceptable. France would however suggest an addition, and an amendment. A new sentence, worded as follows, would be added to sub-rule (a) suggested by Australia: ICC-02/04-14-AnxA 13-02-2007 85/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 85/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

PCNICC/l999/Wf;RPE(9VDP.2

"Before proceeding with the transfer, the Registrar shall be satisfied that the person concerned has given his or her consent to the competent authority of the requested State." France also suggests deleting sub-rule (c) of the Λ u.itralian proposal, which seems to contradict the Statute, indeed, there is no provision in article 93. paragraph 7, enabling the person concerned to lodge an appeal with the Court; he or she can no doubt do so before the national courts of the State concerned, hut this is not relevant in the Rules of Procedure and Evidence of the Court.

Rule 9.16. Cooperation requested of the Court (a) In accordance with article 93, paragraph 10, a State may transmit to the Court a request for cooperation, either in or accompanied by a translation into one of the two working languages of the Court. (b) Requests described in sub-rule (a) shall be sent to the Registrar, who shall transmit them as necessary either to the Prosecutor or to the Chamber concerned. (c) When the Court decides to grant the request for cooperation from a State, the request shall be executed, insofar as possible, following the procedure outlined therein by the requesting State and in the presence of the persons specified in the request.

Article 98

Rule 9.17 (a) When a requested Slate notifies the Court that a request for surrender or assistance raises a problem of execution in respect of article 98, the Court shall invite its written or oral observations as well as those of the third State concerned, and shall determine whether and how the request for surrender or assistance should be acted upon, in accordance with article 98. (b) Pending a response by the Court, the requested State may postpone execution of the request for cooperation.

Article 101

Rule 9.18. Pleas based on a violation of article 101, paragraph 1 A person surrendered to the Court may submit a plea based on a violation of article 101, paragraph 1, at the latest during the hearing on the confirmation of the charges, in accordance with the provisions of rule 5.19 (b) (ii) and (c). However, if the person is surrendered to the Court arter a hearing on the confirmation of the charges held in his or her absence, pursuant to article 61, paragraph 2, and to rules 5.21 to 5.23, the person charged may submit a plea relating to the application of article 101, paragraph 1, before the Trial Chamber, in accordance with the provisions of rule 6.12.

Rule 9.19. Extension of the surrender When the Court has requested a waiver of the requirements of article 101, paragraph 1, and the requested Stale wishes to obtain the views of the person surrendered to the ICC-02/04-14-AnxA 13-02-2007 86/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 86/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Court, a judge of the Chamber dealing with the case shall seek the views of the person, in the presence of his or her counsel. The views expressed shall be transmitted to the requested State as soon as possible. ICC-02/04-14-AnxA 13-02-2007 87/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 87/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

PCNICG 1999/WGRPE(9)/RT.1

7 December 1999

Original: English

Preparatory Commission for the International Criminal Court Working Group on Rules of Procedures and Evidence concerning Parts IX and X of the Statute New York 16-26 February 1999 26 July-13 August 1999 29 November-17 December 1999

Discussion paper submitted by the Coordinator concerning Part IX of the Rome Statute of the International Criminal Court on international cooperation and judicial assistance

Rules relating to article 87 of the Statute

Rule 9.1. Organs of the Court responsible for the transmission and receipt of any communications relating to international cooperation and judicial assistance (a) Upon and subsequent to the establishment of the Court, the Registrar shall obtain from the Secretary-General of the United Nations any communication made by States pursuant to article 87, paragraphs 1 (a) and 2. (b) The Registrar shall transmit the requests for cooperation made by the Chambers of the Court and shall receive the responses, information and documents from requested States. The Office of the Prosecutor shall transmit the requests for cooperation by the Prosecutor and shall receive the responses, information and documents from requested States. (c) The Registrar shall be the recipient of any communication from States concerning subsequent changes in the designation of the national channels charged with receiving requests for cooperation, as well as of any change in the language in which requests for cooperation should be made, and shall, upon request, make such information available to States Parties as ma\ be appropriate. (d) The Registrar shall transmit any such communications referred to in sub-rules (a) and (c). as appropriate, to the Presidency or the Office of the Prosecutor, or both.

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Rule 9.2. Channels of communication (a) Communications concerning the national authority charged with receiving requests for cooperation made upon ratification, acceptance, approval or accession shall provide all relevant information of such authorities. (b) When an intergovernmental organization is asked to assist the Court under article 87, paragraph 6. the Registrar shall, when necessary, seek the advice of its designated channel of communication and obtain all relevant information thereon.

Rule 9.J. Language nominated by States Parties under article 87, paragraph 2 (a) When a requested State Party has more than one official language, it may indicate upon ratification, acceptance, approval or accession that requests for cooperation and any supporting documents can be drafted in any one of its official languages. (b) When the requested State party has not chosen a language for communication with the Court upon ratification, acceptance, accession or approval, the request for cooperation shall either be in or be accompanied by a translation into one of the working languages of the Court pursuant to article 87. paragraph 2.

Rule 9.4. Language of requests directed to States not party to the Statute When a State not party to the Statute has agreed to provide assistance to the Court under article 87, paragraph 5. and has not made a choice of language for such requests, the requests for cooperation shall either be in or be accompanied by a translation into one of the working languages of the Court.

Rule 9.5. Changes in the channels of communication or the languages of requests for cooperation (a) Changcsconccrningthcchannel of communicationorchangcstothe language of a State has nominated under article 87. paragraph 2, shall be notified to the Register in writing at the earliest opportunity. (b) Such changes shall take effect in respect of requests for cooperation made by the Court at a time agreed between the Court and the State or, in the absence of such an agreement, 45 days after the Court has received notification, and in all cases without prejudice to current requests or requests in progress. ICC-02/04-14-AnxA 13-02-2007 89/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 89/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

United Nations PCNICC/2000/l/Add.l

Preparatory Commission for the Distr Gcncral International Criminal Court 2 November 2000

Original: English

New York 13-31 March 2000 12-30 June 2000 Report of the Preparatory Commission for the International Criminal Court

Addendum Parti Finalized draft text of the Rules of Procedure and Evidence* Explanatory note

The Rules of Procedure and Evidence are an instrument for the application of the Rome Statute of the International Criminal Court, to which they are subordinate in all cases. In elaborating the Rules of Procedure and Evidence, care has been taken to avoid rephrasing and, to the extent possible, repeating the provisions of the Statute. Direct references to the Statute have been included in the Rules, where appropriate, in order to emphasize the relationship between the Rules and the Rome Statute, as provided for in article 51, in particular, paragraphs 4 and 5. In all cases, the Rules of Procedure and Evidence should be read in conjunction with and subject to the provisions of the Statute. The Rules of Procedure and Evidence of the International Criminal Court do not affect the procedural rules for any national court or legal system for the purpose of national proceedings. In connection with rule 41, the Preparatory Commission considered whether the application of the rule would be facilitated by including a provision in the Regulations of the Court that at least one of the judges of the Chamber in which the ease is heard knows the official language used as a working language in a given ease. The Assembly of States Parties is invited to give further consideration to this issue.

Incorporating document PCNICC;20()()/INl:/3/Add. I and corrections to the Arabic. French and Spanish versions submitted by Governments pursuant 10 paragraph 16 of the Introduction.

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Rules of Procedure and Evidence

Contents

Rule ΓΊιχι' Chapter 1. General provisions

1 . Use of terms ...... 12 2. Authentic texts ...... 12

3. Amendments ...... 12 Chapter 2. Composition and administration of the Court Section I. General provisions relating to the composition and administration of the Court

4. Plenary sessions ...... 13

5. Solemn undertaking under article 45 ...... 13 6. Solemn undertaking by the staff of the Office of the Prosecutor, the Registry, interpreters and translators ...... 14 7. Single judge under article 39, paragraph 2 (b) (iii) ...... 14 8. Code of Professional Conduct ...... 14

Section II. The Office of the Prosecutor 9. Operation of the Office of the Prosecutor ...... 15

10. Retention of information and evidence ...... 15 1 1. Delegation of the Prosecutor's functions ...... 15

Section 111. The Registry Subsection 1. General provisions relating to the Registry

12. Qualifications and election of the Registrar and the Deputy Registrar ...... 15

13. Functions of the Registrar ...... 16 14. Operation of the Registry ...... 16

15. Records ...... 16 Subsection 2. Victims anil Witnesses Unit 16. Responsibilities of the Registrar relating to victims and witnesses ...... 17

1 7. Functions of the Unit ...... 17

18. Responsibilities of the Unit ...... 18

19. Expertise in the Unit ...... 19 ICC-02/04-14-AnxA 13-02-2007 91/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 91/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Subsection 3. Counsel for the defence 20. Responsibilities of the Registrar relating to the rights of the defence 19 2 I. Assignment of legal assistance 20 22. Appointment and qualifications of Counsel for the defence 21 Section IV. Situations that may affect the functioning of the Court Subsection I. Removal from office and disciplinary measures 23. General principle 21 24. Definition of serious misconduct and serious breach of duty 21 25. Definition of misconduct of a less serious nature 22 26. Receipt of complaints 22 27. Common provisions on the rights of the defence 23 28. Suspension from duty 23 29. Procedure in the event of a request tor removal from office 23 30. Procedure in the event of a request for disciplinary measures 23 3 I. Removal from office 24 32. Disciplinary measures 24 Subsection 2. Excusing, disqualification, death and resignation 33. Excusing of a judge, the Prosecutor or a Deputy Prosecutor 24 34. Disqualification of a judge, the Prosecutor or a Deputy Prosecutor 24 35. Duty of a judge, the Prosecutor or a Deputy Prosecutor to request to be excused 25 36. Death of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar ... 25 37. Resignation of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar 26 Subsection 3. Replacements and alternate judges 38. Replacements 26 39. Alternate judges 26 Section V. Publication, languages and translation 40. Publication of decisions in official languages of the Court 27 41. Working languages of the Court 27 42. Translation and interpretation services 27 43. Procedure applicable to the publication of documents of the Court 28 Chapter 3. Jurisdiction and admissibility Section I. Declarations and referrals relating to articles 11, 12, 13 and 14 44. Declaration provided for in article 12, paragraph 3 29 ICC-02/04-14-AnxA 13-02-2007 92/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 92/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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45. Referral of a situation to the Prosecutor 29 Section II. Initiation of investigations under article 15 46. Information provided to the Prosecutor under article 15, paragraphs 1 and 2 29 47. Testimony under article 15, paragraph 2 29 48. Determination of reasonable basis to proceed with an investigation under article 15, paragraph 3 30 49. Decision and notice under article 15, paragraph 6 30 50. Procedure for authori/ation by the Pre-Trial Chamber of the commencement of the investigation 30 Section III. Challenges and preliminary rulings under articles 17, 18 and 19 51. Information provided under article 17 31 52. Notification provided for in article 18, paragraph I 31 53. Deferral provided for in article 18, paragraph 2 31 54. Application by the Prosecutor under article 1 8, paragraph 2 32 55. Proceedings concerning article I 8, paragraph 2 32 56. Application by the Prosecutor following review under article 18, paragraph 3 32 57. Provisional measures under article 1 8, paragraph 6 33 58. Proceedings under article 19 33 59. Participation in proceedings under article 19, paragraph 3 33 60. Competent organ to receive challenges 34 61. Provisional measures under article 19, paragraph 8 34 62. Proceedings under article 19, paragraph 10 34 Chapter 4. Provisions relating to various stages of the proceedings Section I. Evidence 63. General provisions relating to evidence 35 64. Procedure relating to the relevance or adinissibility of evidence 35 65. Compellability of witnesses 36 66. Solemn undertaking 36 67. Live testimony by means of audio or video-link technology 36 68. Prior recorded testimony 36 69. Agreements as to evidence 37 70. Principles of evidence in cases of sexual violence 37 71. Evidence of other sexual conduct 37 72. In camera procedure to consider relevance or adinissibility of evidence 38 ICC-02/04-14-AnxA 13-02-2007 93/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 93/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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73. Privileged communications and information 38

74. Sclf-incrimination by a witness 39

75. Incrimination by family members 41

Section Π. Disclosure 76. Pre-trial disclosure relating to prosecution witnesses 41 77. Inspection of material in possession or control of the Prosecutor 41

78. Inspection of material in possession or control of the defence 42

79. Disclosure by the defence 42 80. Procedures for raising a ground for excluding criminal responsibility under article 31, paragraph 3 42

8 1. Restrictions on disclosure 43 82. Restrictions on disclosure of material and information protected under article 54, paragraph 3 (e) 43

83. Ruling on exculpatory evidence under article 67, paragraph 2 44

84. Disclosure and additional evidence for trial 44 Section III. Victims and witnesses Subsection 1. Definition and general principle relating to victims

85. Definition of victims 45 86. General principle 45 Subsection 2. Protection of victims and witnesses 87. Protective measures 45 88. Special measures 46

Subsection 3. Participation of victims in the proceedings 89. Application for participation of victims in the proceedings 47

90. Legal representatives of victims 47 91. Participation of legal representatives in the proceedings 48

92. Notification to victims and their legal representatives 49 93. Views of victims or their legal representatives 50 Subsection 4. Reparations to victims

94. Procedure upon request 50

95. Procedure on the motion of the Court 50

96. Publication of reparation proceedings 51 97. Assessment of reparations 51 98. Trust Fund 51 ICC-02/04-14-AnxA 13-02-2007 94/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 94/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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99. Cooperation and protective measures for the purpose of forfeiture under articles 57, paragraph 3 (e), and 75, paragraph 4 52 Section IV. Miscellaneous provisions 100. Place of the proceedings 52 101. Time limits 53 102. Communications other than in writing 53 103. Amicus curiae and other forms of submission 53 Chapter 5. Investigation and prosecution Section I. Decision of the Prosecutor regarding the initiation of an investigation under article 53, paragraphs 1 and 2 104. F.valuation of information by the Prosecutor 54 105. Notification of a decision by the Prosecutor not to initiate an investigation 54 106. Notification of a decision by the Prosecutor not to prosecute 54 Section II. Procedure under article 53, paragraph 3 107. Request for review under article 53, paragraph 3 (a) 55 108. Decision of the Pre-Trial Chamber under article 53, paragraph 3 (a) 55 109. Review by the Pre-Trial Chamber under article 53, paragraph 3 (b) 56 I 10. Decision by the Pre-Trial Chamber under article 53, paragraph 3 (b) 56 Section III. Collection of evidence 111. Record of questioning in general 56 112. Recording of questioning in particular cases 57 113. Collection of information regarding the state of health of the person concerned 58 I 14. Unique investigative opportunity under article 56 58 115. Collection of evidence in the territory of a State Party under article 57, paragraph 3(d) 58 116. Collection of evidence at the request of the defence under article 57, paragraph 3 (b) 59 Section IV. Procedures in respect of restriction and deprivation of liberty 117. Detention in the custodial State 59 I 18. Pre-trial detention at the scat of the Court 60 1 19. Conditional release 60 120. Instruments of restraint 61 Section V. Proceedings with regard to the confirmation of charges under article 61 121. Proceedings before the confirmation hearing 61 122. Proceedings at the confirmation hearing in the presence of the person charged 63 123. Measures to ensure the presence of the person concerned at the confirmation hearing 63 ICC-02/04-14-AnxA 13-02-2007 95/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 95/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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124. Waiver of the right to be present at the confirmation hearing 64 125. Decision to hold the confirmation hearing in the absence of the person concerned 64 126. Confirmation hearing in the absence of the person concerned 65 Section VI. Closure of the pre-trial phase 127. Procedure in the event of different decisions on multiple charges 65 128. Amendment of the charges 65 129. Notification of the decision on the confirmation of charges 66 130. Constitution of the Trial Chamber 66 Chapter 6. Trial procedure 131. Record of the proceedings transmitted by the Pre-Trial Chamber 67 132. Status conferences 67 133. Motions challenging admissibility or jurisdiction 67 134. Motions relating to the trial proceedings 67 135. Medical examination of the accused 68 136. Joint and separate trials 68 137. Record of the trial proceedings 68 138. Custody of evidence 69 139. Decision on admission of guilt 69 140. Directions for the conduct of the proceedings and testimony 69 141. Closure of evidence and closing statements 70 142. Deliberations 70 143. Additional hearings on matters related to sentence or reparations 70 144. Delivery of the decisions of the Trial Chamber 70 Chapter 7. Penalties 145. Determination of sentence 72 146. Imposition of fines under article 77 73 147. Orders of forfeiture 74 148. Orders to transfer fines or forfeitures to the Trust Fund 74 Chapter 8. Appeal and revision Section I. General provisions 149. Rules governing proceedings in the Appeals Chamber 75 Section II. Appeals against convictions, acquittals, sentences and reparation orders 150. Appeal 75 ICC-02/04-14-AnxA 13-02-2007 96/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 96/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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151. Procedure for the appeal 75 152. Discontinuance of the appeal 76 153. Judgement on appeals against reparation orders 76 Section III. Appeals against other decisions 154. Appeals that do not require the leave of the Court 76 155. Appeals that require leave of the Court 76 156. Procedure for the appeal 77 157. Discontinuance of the appeal 77 158. Judgement on the appeal 77 Section IV. Revision of conviction or sentence 159. Application for revision 77 160. Transfer for the purpose of revision 78 161. Determination on revision 78 Chapter 9. Offences and misconduct against the Court Section I. Offences against the administration of justice under article 70 162. Kxercise of jurisdiction 79 163. Application of the Statute and the Rules 79 164. Periods of limitation 79 165. Investigation, prosecution and trial 80 166. Sanctions under article 70 80 167. International cooperation and judicial assistance 81 168. Nc his in i Jem 81 169. Immediate arrest 81 Section II. Misconduct before the Court under article 71 170. Disruption of proceedings 81 171. Refusal to comply with a direction by the Court 82 172. Conduct covered by both articles 70 and 71 82 Chapter 10. Compensation to an arrested or convicted person 173. Request for compensation 83 174. Procedure for seeking compensation 83 175. Amount of compensation 83 ICC-02/04-14-AnxA 13-02-2007 97/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 97/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Chapter 11. International cooperation and judicial assistance Section I. Requests for cooperation under article 87 176. Organs of the Court responsible for the transmission and receipt of any communications relating to international cooperation and judicial assistance 84 177. Channels of communication 84 178. Language chosen by States Parties under article 87, paragraph 2 85 179. Language of requests directed to States not party to the Statute 85 180. Changes in the channels of communication or the languages of requests for cooperation 85 Section II. Surrender, transit and competing requests under articles 89 and 90 181. Challenge to admissibility of a case before a national court 85 182. Request for transit under article 89, paragraph 3 (e) 86 183. Possible temporary surrender 86 184. Arrangements for surrender 86 185. Release of a person from the custody of the Court other than upon completion of sentence ... 86 186. Competing requests in the context of a challenge to the admissibility of the case 87 Section III. Documents for arrest and surrender under articles 91 and 92 187. Translation of documents accompanying request for surrender 87 188. Time limit for submission of documents after provisional arrest 87 189. Transmission of documents supporting the request 87 Section IV. Cooperation under article 93 190. Instruction on sclf-incrimination accompanying request for witness 88 191. Assurance provided by the Court under article 93, paragraph 2 88 192. Transfer of a person in custody 88 193. Temporary transfer of the person from the State of enforcement 88 194. Cooperation requested from the Court 89 Section V. Cooperation under article 98 195. Provision of information 89 Section VI. Rule of speciality under article 101 196. Provision of views on article 101, paragraph I 90 197. Extension of the surrender 90 ICC-02/04-14-AnxA 13-02-2007 98/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 98/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

PCNlCC/2000/l/Add.l

Chapter 12. Enforcement Section I. Role of States in enforcement of sentences of imprisonment and change in designation of State of enforcement under articles 103 and 104 198. Communications between the Court and States 91 199. Organ responsible under Part 10 91 200. List of States of enforcement 91 201. Principles of equitable distribution 92 202. Timing of delivery of the sentenced person to the State of enforcement 92 203. Views of the sentenced person 92 204. Information relating to designation 92 205. Rejection of designation in a particular case 93 206. Delivery of the sentenced person to the State of enforcement 93 207. Transit 93 208. Costs 93 209. Change in designation of State of enforcement 94 210. Procedure for change in the designation of a State of enforcement 94 Section II. Enforcement, supervision and transfer under articles 105, 106 and 107 211. Supervision of enforcement of sentences and conditions of imprisonment 94 212. Information on location of the person for enforcement of fines, forfeitures or reparation measures 95 213. Procedure for article 107, paragraph 3 95 Section III. Limitation on the prosecution or punishment of other offences under article 108 214. Request to prosecute or enforce a sentence for prior conduct 95 215. Decision on request to prosecute or enforce a sentence 96 216. Information on enforcement 96 Section IV. Enforcement of fines, forfeiture measures and reparation orders 217. Cooperation and measures for enforcement of fines, forfeiture or reparation orders 97 218. Orders for forfeiture and reparations 97 219. Non-modification of orders for reparation 98 220. Non-modification of judgements in which fines were imposed 98 22 1. Decision on disposition or allocation of property or assets 98 222. Assistance for service or any other measure 98

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PCNICC/20flO/l/Add.l

Section V. Review concerning reduction of sentence under article 11Ü 223. Criteria for review concerning reduction of sentence 99 224. Procedure for review concerning reduction of sentence 99 Section VI. Escape 225. Measures under article 111 in the event of escape 100

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PCNICC/2000/l/Add.l Chapter 11 International cooperation and judicial assistance

Section I Requests for cooperation under article 87 Rule 176 Organs of the Court responsible for the transmission and receipt of any communications relating to international cooperation and judicial assistance

1. Upon and subsequent to the establishment of the Court, the Registrar shall obtain from the Secretary-General of the United Nations any communication made by States pursuant to article 87, paragraphs 1 (a) and 2. 2. The Registrar shall transmit the requests for cooperation made by the Chambers and shall receive the responses, information and documents from requested States. The Office of the Prosecutor shall transmit the requests for cooperation made by the Prosecutor and shall receive the responses, information and documents from requested States. 3. The Registrar shall be the recipient of any communication from States concerning subsequent changes in the designation of ihc national channels charged with receiving requests for cooperation, as well as of any change in the language in which requests for cooperation should be made, and shall, upon request, make such information available to States Parties as may be appropriate. 4. The provisions of sub-rule 2 are applicable mutatis mutandis where the Court requests information, documents or other forms of cooperation and assistance from an intergovernmental organization. 5. The Registrar shall transmit any communications referred to in sub-rules 1 and 3 and rule 177, sub-rule 2, as appropriate, to the Presidency or the Office of the Prosecutor, or both.

Rule 177 Channels of communication

1. Communications concerning the national authority charged with receiving requests for cooperation made upon ratification, acceptance, approval or accession shall provide all relevant information about such authorities. 2. When an intergovernmental organization is asked to assist the Court under article 87, paragraph 6, the Registrar shall, when necessary, ascertain its designated channel of communication and obtain all relevant information relating thereto.

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A/49/10

Report of the International Law Commission on the work of its forty-sixth session 2 May-22 July 1994

General Assembly Official Records · Forty-ninth Session Supplement No. 10 (A/49/10)

United Nations · New York, 1994 ICC-02/04-14-AnxA 13-02-2007 102/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 102/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

or (for example, if the truth of the new fact relied on is not in issue) refer the matter to the Appeals Chamber. The procedure to be adopted for the hearing of an application for revision should be regulated by the Rules.

PART 7. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE

Article 51 Cooperation and "Judicial· assistance

1. States parties shall cooperate with the Court in connection with criminal investigations and proceedings under this Statute. 2. The Registrar may transmit to any State a request for cooperation and judicial assistance with respect to a crime, including, but not limited to:

(a) the identification and location of persons; (b) the talcing of testimony and the production of evidence; (c) the service of documents; (d) the arrest or detention of persons; and (e) any other request which may facilitate the administration of justice, including provisional measures as required. 3. Upon receipt of a request under paragraph 2 : (a) in a case covered by article 21 (1) (a), all States parties ; (b) in any other case, States parties which have accepted the jurisdiction of the Court with respect to the crime in question; shall respond without undue delay to the request. Commentary (l) The effective functioning of the Court will depend upon the international cooperation and judicial assistance of States. Thus States parties to the Statute should cooperate with criminal investigations conducted by the Prosecutor and respond without undue delay to any request from the Court regarding, for example, the location of persons, the taking of testimony, the production of evidence, the service of documents, etc. Article 51 states this general obligation in terms adapted from article 29 of the Statute of the International Tribunal for the Former Yugoslavia, it being understood that issues of implementation will be worked out between the Court and the

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requested State. Article 51 is without prejudice to the more precise and graduated obligations imposed, for example, by article 53 in relation to the transfer of accused persons. (2) One important difference as compared with the Yugoslav Tribunal is that the present Court has jurisdiction over a wider range of matters and that its jurisdiction is not limited in time and place. Moreover, some States parties to the Statute may not be parties to one or more of the treaties in the Annex, or may not have accepted the Court's jurisdiction over crimes defined by those treaties. These factors would have to be taken into account in giving effect to the general obligation of cooperation under paragraph 1. (3) Some members of the Commission thought that article 51 went too far in imposing a general obligation of cooperation on States parties to the Statute, independently of whether they are parties to relevant treaties or have accepted the Court's jurisdiction with respect to the crime in question. They would therefore prefer article 51 to say no more than that parties would use their "best efforts" to cooperate, thus incorporating a greater element of flexibility and discretion. (4) Paragraph 2 is an empowering provision, providing for the Registrar to make requests to States for cooperation. Paragraph 3 requires a prompt response to such requests from the States specified in that paragraph. It does not, in terms, require States to comply with such requests, since whether they will be able to do so will depend on the circumstances: a State cannot, for example, arrest a person who has fled its territory. The substantive obligation of States parties in relation to requests made under paragraph 2 is contained in paragraph l .

Article 52

Provisional measures

1. In case of need, the Court may request a State to take necessary provisional measures, including the following:

(a) to provisionally arrest a suspect;

(b) to seize documents or other evidence; or

2. The Court shall follow up a request under paragraph 1 by providing, as soon as possible and in any case within 28 days, a formal request for assistance complying with article 57.

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Commentary (1) When circumstances so require, the Court may request a State or States to take provisional measures, including measures to prevent an accused from leaving its territory or the destruction of evidence located there. Such a request may include provisional arrest of a suspect pursuant to a warrant issued under article 28 (l). See also article 9 of the Model Treaty on Extradition adopted by the General Assembly in resolution 45/116 on 14 December 1990. (2) A request for provisional measures may have to be made very quickly and in circumstances where a fully documented request would take too long to prepare. Paragraph 2 provides that a formal request for assistance under Part 7 should be made within 28 days of such a provisional request. (3) Article 52 is essentially an empowering provision so far as the Court is concerned. Obligations of cooperation on the part of States parties are dealt with in article 51 (1).

Article 53

Transfer of an accused to the Court

1. The Registrar shall transmit to any State on the territory of which the accused may be found a warrant for the arrest and transfer of an accused iasued under article 28, and shall request the cooperation of that State in the arrest and transfer of the accused.

2. Upon receipt of a request under paragraph 1 :

(a) all States parties:

(i) in a case covered by article 21 (1) (a), or

(ii) which have accepted the jurisdiction of the Court with respect to the crime in question;

shall, subject to paragraphs 5 and 6, take immediate steps to arrest and • transfer the accused to the Court; (b) in the case of a crime to which article 20 (e) applies, a State party which is a party to the treaty in question but which has not accepted the Court's jurisdiction with respect to that crime shall, if it decides not to transfer the accused to the Court, forthwith take all necessary steps to extradite the accused to a requesting State or refer the case to its competent authorities for the purpose of prosecution;

(c) in any other case, a State party shall consider whether it can, in accordance with its legal procedures, take steps to arrest and

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transfer the accused to the Court, or whether it should take steps to extradite the accused to a requesting State or refer the case to ita competent authorities for the purpose of prosecution.

3. The transfer of an accused to the Court constitutes, as between States parties which accept the jurisdiction of the Court with respect to the crime, sufficient compliance with a provision of any treaty requiring that a suspect be extradited or the case referred to the competent authorities of the requested State for the purpose of prosecution.

4. λ State party which accepts the jurisdiction of the Court with respect to the crime shall, as far as possible, give priority to a request under paragraph l over requests for extradition from other States.

5. A State party may delay complying with paragraph 2 if the accused is in its custody or control and is being proceeded against for a serious crime, or serving a sentence imposed by a court for a crime. It shall within 45 days of receiving the request inform the Registrar of the reasons for the delay. In such cases, the requested State:

(a) may agree to the temporary transfer of the accused for the purpose of standing trial under this Statute; or

(c) shall comply with paragraph 2 after the prosecution has been completed or abandoned or the sentence has been served, as the case may be.

6. A State party may, within 45 days of receiving a request under paragraph 1, file a written application with the Registrar requesting the Court to set aside the request on specified grounds. Pending a decision of the Court on the application, the State concerned may delay complying with paragraph 2 but shall take any provisional measures necessary to ensure that the accused remains in its custody or control.

Commentary (1) Having regard to article 37 of the Statute and to the need to establish a clear relationship between existing obligations to try or extradite and the Statute, article 53 is a crucial provision. For the reasons explained in the commentary to article 51, it is necessary to distinguish between the various levels of obligation States parties to the Statute may have accepted, which can range from not being a party to a relevant treaty defining a crime, on the one hand, to having accepted the jurisdiction of the Court over such crimes in all cases, on the other hand. Article 53 is drafted accordingly. Moreover, the Statute differs from the Statute of the International Tribunal for the Former Yugoslavia, article (9) (2) of which proclaims the Tribunal's "primacy over national courts". By contrast the present Statute operates in principle on. the basis of concurrent jurisdiction.

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(2) In the firat place, the Registrar may request any State to cooperate in the arrest and transfer of an accused pursuant to a warrant issued under article 28. As to States not parties to the Statute, no obligation of transfer can be imposed, but cooperation can be sought in accordance with article 56. The term "transfer" has been used to cover any case where an accused is made available to the Court for the purpose of trial, in order to avoid any confusion with the notion of extradition or other forme of surrender of persons (e.g. under status of forces agreements) between two States. (3) Paragraph 2 spells out the extent of the obligation of a State party to respond to a transfer request. Four different situations have to be considered, as follows: (a) All States parties to the Statute will have accepted the Court's "inherent" jurisdiction over genocide under articles 20 (a) and 21 (1) (a) . In that case, subject to the other safeguards and guarantees in the Statute, the transfer obligation in article 53 (2) (a) will apply. (b) The same obligation should apply to States parties which have accepted the jurisdiction of the Court with respect to the crime in question; they must take immediate steps to arrest and surrender the accused person to the Court under paragraph 2 (a). (c) In the case of crimes defined by the annexed treaties, a State party which is also a party to the relevant treaty defining the crime in question but which has not accepted the Court's jurisdiction must arrest and either transfer, extradite or prosecute the accused. (d) In any other case, a State party must consider whether its own law permits the arrest and transfer of the accused. Ae to other crimes under general international law, some States may not have some of these crimes (e.g. aggression) as part of their own criminal code; it was thought that the only obligation that could be imposed in such cases, if a State does not accept the jurisdiction of the Court in relation to the crimes, was that spelt out in paragraph 2 (c). (4) As to the relationship between extradition and transfer, several provisions of article 53 are relevant. Under paragraph 2 (b), a State which is a party to the relevant treaty defining the crime but which has not accepted the jurisdiction of the Court with respect to a crime is under an aut dedere aut -Judicare obligation, and thus has the option of extraditing the accused to a requesting State. (If an extradition request has been granted or is pending and is subsequently granted, the requesting State must, anyway,

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have accepted the jurisdiction of the Court before it can proceed with the case: see article 21 (2).) Under paragraph 4, a State party which accepts the Court's jurisdiction over the crime must, as far as possible, give priority to a transfer request from the Court, bearing in mind that such a request will not have been made before the confirmation of the indictment and an opportunity on the part of the interested States to challenge the Court's jurisdiction or the admisaibility of the particular case, which is provided for under articles 34 or 35. The words "as far as possible" inserted in paragraph 4 reflect, on the one hand, the inability of the Statute to affect the legal position of non-parties, and, on the other hand, the difficulties of imposing a completely homogeneous obligation on States parties to the Statute given the wide range of situations covered. (5) Transfer to the Court is to be taken, as between parties to the Statute which accept the jurisdiction of the Court with respect to the crime, to constitute compliance with aut dedere aut -ludicare provisions in extradition treaties: paragraph 3. In other cases it is recognized that the decision as between transfer or extradition must rest with the requested State, in particular so far as requests from non-parties to the Statute are concerned, and this being so there is no reason to disadvantage requesting States that have become parties to the Statute but have not accepted the Court's jurisdiction in a given case. (6) Talcing these various provisions together, it is the view of the Commission that these provisions provide adequate guarantees that the Statute will not undermine existing and functional extradition arrangements. Some members, however, felt that paragraph 4 went too far in the direction of giving priority to the Court's jurisdiction as compared with that of a State requesting extradition: they stressed that the Court should in no case '*** " interfere with existing and functioning extradition agreements. (7) A State party which receives a transfer request may take action under paragraphs 5 or 6. Paragraph 5 allows a requested State to delay complying while the accused is tried before its own courts for a serious crime, or completes a sentence imposed for a crime. This is without prejudice to the possibility of temporary transfer of a prisoner for the purpose of standing trial under the Statute for some other crime within the jurisdiction of the Court; in such cases arrangements could be made for any sentence imposed under the Statute to be served concurrently or consecutively in the State concerned.

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(β) Alternatively, a requested State may apply under paragraph 6 to have the request set aside for sufficient reason. The Court in dealing with such an application would have regard to article 35 and to the preamble. (9) In case of delay under paragraph 5, the Court must be informed of the reasons for the delay; in case of an application under paragraph 6, necessary provisional measures must be taken. The Registrar might also arrange with a State which has in its custody a person arrested under the Statute for the person to continue to be held in that State pending trial.

Article 54

Obligation to extradite or prosecute

In a case of a crime referred to in article 20 (θ) , a custodial State party to this Statute which is a party to the treaty in question but which has not accepted the Court's jurisdiction with respect to the crime for the purposes of article 21 (1) (b) (i) shall either take all necessary steps to extradite the suspect to a requesting State for the purpose of prosecution or refer the case to its competent authorities for that purpose.

Commentary (1) The role of article 54 in the scheme of the Statute has been referred to already: see commentary to article 21. Article 54 is, in effect, a corollary for States parties to the Statute of unwillingness to accept the Court's jurisdiction in respect of apparently well-founded charges of treaty crimes. (2) Thus, a State party whose acceptance of the Court's jurisdiction is necessary, but which does not accept the jurisdiction, is under an aut dedere aut -Judieare obligation, equivalent to the obligation included in most of the treaties listed in the Annex. As between parties to the Statute this in effect integrates the International Criminal Court into the existing system of international criminal jurisdiction and cooperation in respect of treaty crimes. It should avoid the situation of a State party in effect giving asylum to an accused person in relation to prima facie justified charges of crimes which have been accepted as such by that State. On the other hand it gives States parties the same range of options when confronted with a request for transfer of an accused that they have now under the Listed treaties, unless the State in question has expressly accepted the jurisdiction of the Court in relation to the crime: see article 53 (2) (a). (3) The Commission gave careful consideration to the question whether an equivalent obligation should be imposed on States parties generally with

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respect to the crimes under international law referred to in article 20 (b)-(d). On balance it decided that this was difficult to achieve with respect to such crimes in the absence of a secure jurisdictional basis or a widely accepted extradition regime. The problem is most acute with respect to article 20 (d) (crimes against humanity), but many States do not have as part of their criminal law a provision specifically dealing with such crimes.

Article 55

Rule of speciality

1. Ά person transferred to the Court under article 53 shall not be subject to prosecution or punishment for any crime other than that for which the person was transferred.

2. Evidence provided under this Part shall not, if the State when providing it so requests, be used as evidence for any purpose other than that for which it was provided, unless this is necessary to preserve the right of an accused under article 41 (2).

3. The Court may request the State concerned to waive the requirements of paragraphs 1 or 2, for the reasons and purposes specified in the request.

Commentary (1) Article 55 states a rule of speciality (sometimes referred to as the rule of identity of transfer and trial). It is intended to ensure that a person delivered to the Court can only be prosecuted or punished for the crime indicated in the initial request: see paragraph 1. Similarly, evidence tendered to the Court can only be used as evidence for the purpose stated in the original request if the State when providing the information so requests: paragraph 2. This is subject, however, to the rights of an accused to disclosure of exculpatory evidence under article 41 (2). (2) A distinction must be drawn between the tender of evidence as such and the use of information as a basis for the investigation of the same person for other crimes or for the investigation of other persons who may have been involved in related criminal activity. The limitation in paragraph 2 only applies to the former situation. (3) The Court may request the State concerned to waive the limitation under article 55: see paragraph 3. It will be a matter for the requested State to decide whether to do so.

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Article 56

Cooperation with Statea not parties to this Statute

States not partiea to this Statute may assist in relation to the matters referred to in thia Part on the basis of comity, a unilateral declaration, an ad hoc arrangement or other agreement with the Court.

Commentary Article 56 recognizes that all States as members of the international community have an interest in the prosecution, punishment and deterrence of the crimes covered by the Statute. Thus, even those States which are not parties to the Statute are encouraged to cooperate with and to provide assistance to the Court on the basis of a unilateral declaration, which may be general or specific in character, an ad hoc arrangement for a particular case, or some other type of agreement between the State and the Court.

Article 57

Communications and documentation

1. Requests under this Part shall be in writing, or be forthwith reduced to writing, and shall be between the competent national authority and the Registrar. States parties shall inform the Registrar of the name and address of their national authority for this purpose.

2. when appropriate, communications may also be made through the International Criminal Police Organization.

3. A request under this Part shall include the following, aa applicable:

(a) a brief statement of the purpose of the request and of the assistance sought, including the legal basis and grounds for the request;

(b) information concerning the person who is the subject of the request on the evidence sought, in sufficient detail to enable identification;

(d) information concerning the complaint or charge to which the request relates and of the basis for the Court's jurisdiction.

4. A requested State which considers the information provided insufficient to enable the request to be complied with may seek further particulars.

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Commentary (1) Under article 57, communications should normally be between the Registrar and the competent national authorities of the State concerned and should be in writing. There is also the possibility of communications with or through the International Criminal Police Organization (INTERPOL). (2) Any request made to a State under Part 7 must be accompanied by a sufficient explanation of its purpose and legal basis as well as appropriate documentation, in accordance with paragraph 3. The State may aak the Court to provide additional information if necessary. This article is based on a similar provision contained in article 5 of the Model Treaty on Mutual Assistance in Criminal Matters (adopted by General Assembly resolution 45/117 on 14 December 1990).

PART 8. ENFORCEMENT

Article 58

Recognition of -Judgments

States parties undertake to recognize the judgments of the Court.

Commentary (1) States parties to the statute must recognize the judgments of the Court, in the sense of treating those judgments, unless set aside under Part 6, a· authoritative for the purposes of the Statute: cf. article 42. Thus a judgment of the Court should be capable of founding a plea of res ludicata or issue estoppel or their equivalents under legal systems which recognize those pleas. On the other hand more affirmative obligations of enforcement are imposed not by article 58 but by article 59 and by Part 7 of the Statute. (2) Depending on their constitutional systems, it may be necessary for States parties to enact legislation or to introduce administrative measures to give effect to this and other obligations under Part 8. The content of such legislation will depend on the national system concerned, and cannot be prescribed in advance. (3) Some members doubted whether a mere obligation to recognize a judgment of the Court had any particular meaning. In their view, the obligation, to be meaningful, should extend to recognizing the appropriate legal consequences of a judgment. The judgment itself would be enforced under the Statute and did not as such require recognition by States. Others favoured the deletion of the article.

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Λ/51/22

Report of the Preparatory Committee on the Establishment of an International Criminal Court

Volume I

(Proceedings of the Preparatory Committee during March-April and August 1996)

General Assembly Official Records Fifty-first Session Supplement No.22 (A/51/22)

United Nations New York, 1996 ICC-02/04-14-AnxA 13-02-2007 113/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 113/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

The view was expressed that such traditional exceptions to extradition had their merits in this context.

317. It was noted that the relation between the obligations under parts 7 and θ of the draft statute and existing conventions between States in the same area raised a particularly difficult problem. The point was made that the principle of complementarity would suggest that the requested State had the discretionary power to make a determination as to which request should have priority in the interest, for example, of effective prosecution. On the other hand, some delegations insisted on the primacy of requests from the Court, which would be established by an international convention and whose jurisdiction would be limited to core crimes, in the case where a State party had received competing requests from the Court and from another State party. The situations involving a competing request by a State which was not a party to the Statute was considered particularly complex and it was suggested that the matter should be examined further.

318. It was noted that additional discussions would be required to consider situations where the national authority of a State party did not exist for the Court to establish contact to seek cooperation.

319. The question was raised as to what would be the effect of the Court's exercise of inherent jurisdiction where the State requested to grant cooperation denied such cooperation without a justifiable reason. It was further stated that under the existing norms of international law, the State that did not comply with the obligations of the Statute would be held in violation of international law, which would impose State responsibility upon that State.

2. Apprehension and surrender

320. It was noted that the system of apprehension and surrender under article 53 of the draft statute, which embodied a strict transfer scheme without contemplating any significant role of the national courts and other authorities on the matter, was a departure from the traditional regime of cooperation between States established under the existing extradition treaties. In this regard, some delegations indicated that they were in favour of a system based exclusively on the traditional extradition regime, modified as necessary. Some other delegations supported the transfer regime as envisaged in the Statute. Some further delegations expressed their view in support of reconciling the two regimes so as to ensure the consistent application of the Statute. The suggestion was made also that, in order to facilitate its acceptance by States, the Statute should provide for a choice between a modified extradition regime and a strict transfer regime, subject to different national laws and practices. It was emphasized however that whatever might be its character, it was a unique system of cooperation which must be tailored to the special needs of the Court, taking into account national constitutional requirements, particularly those for guaranteeing the protection of the fundamental rights of individuals, and States' obligations under existing extradition treaties. It was further stated that the relationship between surrender and traditional extradition required further examination. The suggestion was made that the system of surrender should be extended to cover the convicted as well as the accused persons.

321. It was generally agreed that the basis for a request by the Court for arrest of an accused as a preliminary measure for surrender should be a warrant of arrest issued by the International Criminal Court in accordance with the provisions of article 26 (3) of the draft statute. It was considered that such a request to a State party should contain a full description of the identity of the person sought, together with a full summary of the facts of the case in

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question, including details of the offence or offences of which the person was accused and a copy of a warrant for his or her arrest. Such information, it was said, should be provided at the time when the request was made, and not later as contemplated in article 57. In this regard, it was suggested that the Statute should formulate a procedure for what is the traditional torm ot provisional arrest whereby a request could be made in an abbreviated form in cases of urgency, to be followed by the transmission of a formal request for surrender accompanied by supporting documentation. As for the transmission of a formal request, it was suggested that, although some States might need to follow a modified extradition approach, rather than a pure transfer regime, documentary and evidentiary requirements under a modified extradition approach should be the least burdensome possible. In this connection, support was expressed for the proposal that States specify those requirements in advance at the time of their ratification or accession to the Statute. On the question of the means of transmission, it was stated that the Court should have the freedom of using in each case the channel and the method it deemed appropriate, including the use of new technology such as telefax.

322. The point was made that there should be a clear distinction between the Court's request for pre-indictment arrest of a suspect and the Court's provisional request for post-indictment arrest of an accused, pending the transmission of a formal arrest warrant. It was stated that, in either case, a warrant of arrest should be the basis for a request for arrest. Some delegations suggested that, if the warrant of arrest was issued in the pre-indictment stage, there should be a determination by national courts of some sufficiency of underlying evidentiary basis for the warrant and of the existence of a specific charge. A number of delegations felt, however, that there was no need to require the transmission of any evidence in support of the arrest warrant. Concern was nevertheless expressed that pre-indictment arrest was not permissible under certain constitutions, nor was the unusually long period of 90 days of the pre-indictment detention provided for in article 28 (2). As for a need for a provision in the Statute concerning arrest of persons other than the accused, doubts were expressed as regards the possibility of the Court's ordering the arrest and transfer of a reluctant witness. In this regard, it was considered preferable to ensure that the Court itself had flexibility to receive testimony taken outside of its seat with the assistance of States or through, for example, electronic means.

323. On the question of the role of national authorities, in particular the judiciary, in the execution of the Court's requests for provisional arrest, pre-surrender detention or surrender of the accused to the Court, there was general support for the view that the Statute should permit involvement of national courts in the application of national law where those requirements were considered fundamental, especially to protect the rights of individuals, as well as to verify procedural legality. Mention was made in this connection, of the difficulties that many States would have with a direct enforcement of an arrest warrant issued by the Court, as opposed to an indirect enforcement through available national mechanisms. It was suggested that, as a minimum, it should be possible to challenge in a national court of the requested State a document purporting to be a warrant - without the examination of the warrant in relation to substantive law - and that there should be a national forum in which to adjudicate upon any admissibility dispute, at least as regards double jeopardy. It was further suggested that issues of detention prior to surrender, including bail or provisional release, should be determined by national authorities and not by the International Criminal Court, as envisaged in the draft statute. It was considered necessary, however, that the requested State should ensure that the views of the Prosecutor in regard to any release of the suspect or the accused should be brought to the attention of the judicial officer. In this regard, it was emphasized that there must be a very close working relationship

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between the Prosecutor and States parties in implementing the Court's request for assistance and surrender, and that the Statute should be sufficiently flexible so as to take this into account, while at the same time giving due attention to the rights of the individuals and the State's international obligations. The view was also expressed that the transfer ot the accused to the Court or to the detaining State could be an appropriate point for shifting the primary responsibility over the accused from the national authorities to the International Criminal Court. With regard to the question of who should execute surrender, it was suggested that, for practical reasons, the Statute should provide for an option for execution by the custodial State, although there was also the view in favour of execution, in principle, by officials of the Court only.

124. With regard to the question of exceptions to the obligation to surrender, the view was reiterated that they should be kept to a minimum and that they should be specifically laid down in the Statute. In this connection, some delegations questioned the appropriateness of such traditional limitations or exceptions as the nationality of the accused, political or military offences, essential interests/ordre public or sufficiency of evidence. They also considered as inappropriate the principle of dual criminality, in view of the seriousness of crimes within the jurisdiction of the Court. Other delegations felt that some of these elements should be taken into account in laying down exceptions. Suggestions for possible exceptions included the principle of non bis in idem, non-acceptance of the Court's jurisdiction over a particular crime other than the crime of genocide, manifest errors of facts or law by the Court, the lack of a prima facie case, the statute of limitations, pendency of national proceedings relating to the same crime and competing requests from the Court and another State where the requested State might favour cooperation with that other State for effective prosecution of the crime, or might be obliged to render such cooperation to that other State.

325. On the rule of speciality, the view was expressed that, while some provision concerning speciality was required in order to safeguard the rights of the accused, the Statute should provide for application only to offences committed before surrender and also for the possibility of waiver by the States concerned. It was further noted that the question of competing international obligations would arise in respect of apprehension or surrender where a person whom the requested State had secured from another State for offences unconnected with the Court was transferred to the Court without the consent of that State. The view was also expressed that the Court should not, without the consent of the requested State, re-surrender to another State party or to a third State a person surrendered to it by the requested State in respect of offences committed before his surrender.

K. International cooperation and judicial assistance

1. Nature of assistance

326. While the term "judicial assistance" was described as sufficiently broad to cover the types of assistance envisaged, a preference was expressed for the term "mutual assistance" as a term of art used in recent legal instruments and as a more accurate description of the various types of assistance that might be required. A doubt was also expressed, however, concerning the appropriateness of the use of the term "mutual" considering the unique character of the Court.

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2. Obligation of States parties to provide assistance (article 51, paragraph 1)

327. Several delegations expressed the view that the Statute should provide the legal basis for the obligation of States parties to provide the widest assistance to the Court and the general framework that would govern such matters. It was suggested that States parties should be required to use their best efforts in responding without delay to requests for assistance.

328. Some delegations expressed the view that the obligation to provide assistance should apply to all States parties, while others suggested that it should apply only to States parties which have accepted the jurisdiction of the Court with respect to the crime concerned. It was also suggested that requests for assistance should be made only after the Court had determined the question of jurisdiction, including State consent requirements, and the question of admissibility under the principle of complementarity.

329. While noting differences between the assistance to be provided by States to the Court and the traditional assistance provided between States in criminal matters, it was suggested that the Statute should be guided by the relevant existing conventions and the United Nations Model Treaty on Mutual Assistance in Criminal Matters. The view was also expressed that the Court could utilize existing arrangements for cooperation and mutual legal assistance in criminal matters.

3. Exceptions or limitations

330. The view was expressed that traditional exceptions to requests for assistance between States in criminal matters should not apply to the assistance to be provided to the Court given the serious nature of the crimes and the interest of the international community in the effective investigation and prosecution of those crimes. It was emphasized that any exceptions should be expressly provided in the Statute to provide predictability and uniformity with respect to the obligations of States parties, should be sufficiently narrow in scope to avoid abuse and should be kept to a minimum to avoid hampering the effective functioning of the Court. The view was also expressed that States could indicate the applicable exceptions under national law when becoming a party to the Statute. A question was raised as to whether the Statute would provide a self-contained regime of obligations and exceptions. A question was also raised as to whether the exceptions provided under international public law, such as reprisals or self-defence of States, would be applicable.

(a) National laws and constitutions

331. The view was expressed that national laws and constitutions should provide the procedures for implementing the requests for assistance but should not affect the obligation to provide such assistance under the Statute. It was suggested that national law could also provide the basis for the compulsory nature of investigative actions taken by the national authorities, such as search and seizure orders.

(b) Public or national security interests

332. While the view was expressed that national security interests should constitute a valid exception, as in existing conventions, concerns were expressed about recognizing a broad exception based on public or national security interests. It was suggested that consideration should be given to addressing the legitimate concerns of States regarding requests for information

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or evidence relating to national security interests or other sensitive information while limiting the possibility of abuse which could impede the effective functioning of the Court.

333. Some delegations expressed the view that the traditional exception to requests for assistance based on pending national investigations or prosecutions should not be applicable since the Court would consider this matter in determining the admissibility of a case under the principle of complementarity as a preliminary matter. Other delegations expressed the view that consideration should be given to providing a limited exception in situations in which complying with a request for assistance would interfere with an effective national investigation or prosecution.

(d) Political or military offences

334. Many delegations expressed the view that the traditional exception concerning political or military offences should not apply to requests for assistance.

(e) Dual criminality

335. It was suggested that the dual criminality requirement should not be applied to requests for assistance by the Court.

(f) Manifestly unfounded request

336. Some delegations expressed the view that a State party should be able to refuse to comply with a request for assistance which was manifestly unfounded.

4. General provision or enumeration (article 51, paragraph 2)

337. A number of delegations expressed the view that the Statute should contain a list of the types of assistance that might be requested of States parties so as to indicate clearly their obligations and to facilitate the adoption of implementing legislation. While several delegations favoured a non-exhaustive list to provide a measure of flexibility and to enable the Court to request appropriate kinds of assistance in particular cases not specifically envisaged in the Statute, other delegations favoured a comprehensive list to provide greater clarity concerning the obligation of States parties and thereby facilitate the enactment of implementing legislation. It was suggested that the list contained in article 51, paragraph 2, should be further elaborated based on existing instruments.

5. On-site investigations (article 26, paragraph 2 (c))

338. Several delegations expressed the view that the Prosecutor should not be authorized unilaterally to initiate and conduct on-site investigations in the territory of a State party without its consent since that authority would be contrary to the principle of State sovereignty; it would be difficult for the Prosecutor to conduct on-site investigations and to ensure compliance with divergent national and constitutional law guarantees of individual rights without the assistance of national authorities; and such authorization would go beyond existing international law and would not be generally acceptable to States.

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339. The view was expressed that the on-site investigations envisaged under article 26, paragraph 2 (c), should be considered as a kind of assistance to be provided by States in response to an appropriate request from the Court. It was emphasized that on-site investigations should be carried out only with the consent of the State concerned and by its competent national authorities in accordance with the national and constitutional law guarantees of individual rights. The view was expressed that there might be a limited exception to the State consent requirement in extraordinary situations involving the referral of a matter to the Court by the Security Council under Chapter VII of the Charter of the United Nations. Other delegations felt that the Prosecutor should be authorized to carry out on-site investigations with the consent of the State concerned, and without its consent if the national authorities were unable to conduct an investigation that would meet the Court's needs. In the view of those delegations, it would he up to the Court to decide if that condition had been met.

6. Requests for assistance (article 57)

(a) Form and content of requests

340. Several delegations expressed the view that requests for assistance should include sufficiently detailed, relevant information concerning the crime, the alleged offender, the type of assistance requested, the reasons for requesting assistance and its objective as well as other relevant information depending on the type of assistance requested, such as the identity and location of the alleged offender, the identity and location of witnesses, the location of documents or other evidence. There was an indication of general satisfaction with article 57, paragraphs 3 and 4, while noting the possibility of further refinement based on the relevant instruments. It was suggested that it might be necessary to retain a degree of flexibility in view of divergent national law requirements.

(b) Competent authority for making such requests

341. The view was expressed that the Prosecutor should be competent to request assistance given his or her responsibility for the investigation and prosecution of alleged offenders. There were different views as to the extent to which the Prosecutor should be required to request the assistance of States in obtaining exculpatory information and evidence or the defence should be permitted to request the assistance of States in this regard. The view was further expressed that the Presidency, the Court or the trial chamber should also be competent to request assistance from a State party depending on the stage of the investigation or the judicial proceeding. It was suggested that the Court should be competent to request assistance either ex officio, upon the request of the Prosecutor or of the defence. It was also suggested that the Registry should be responsible for transmitting requests for assistance, as indicated in article 51, paragraph 2.

342. Several delegations expressed the view that States parties should designate the competent national authority to receive requests for assistance to provide an expeditious and direct line of communication, as envisaged in article 57, paragraph 1. A preference was expressed for using diplomatic channels to communicate requests for assistance, while there was also an indication that this was not the current practice. It was suggested that there should be some flexibility to enable States parties to select different channels of communication.

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343. In the view of some delegations modern means of communication should be used to facilitate expeditious communications, such as by fax or other electronic means. It was emphasized that it might be necessary to provide subsequently an original written request without delay to enable the national authorities to take appropriate action. However, concerns were expressed regarding the reliability and the confidentiality of such means.

7. Role of national authorities

344. It was emphasized that requests for assistance should be carried out by the competent national authorities in accordance with national law and constitutional guarantees of individual rights. It was also emphasized that it would be necessary for the national authorities to comply with relevant international standards in implementing the requests for assistance. It was suggested that the national authorities could carry out investigations pursuant to instructions provided by the Court and that the Prosecutor or staff members could be present during the investigation and possibly participate therein.

8. Non-compliance

345. The view was expressed that consideration should be given to situations in which a State refused to assist in an investigation in an attempt to shield an individual from criminal responsibility or was unable to provide such assistance owing to the lack of an effective, functioning judicial or legal system. It was suggested that it might be possible to envisage a role for the Security Council in certain situations. It was also suggested that the Statute should envisage a special chamber that would consider refusals or failures to comply with requests for assistance and render appropriate decisions.

9. Rule of speciality (article 55)

346. The view was expressed that the rule of speciality should apply to information or evidence transmitted to the Court by a State. There was an indication of general satisfaction with the limited rule contained in article 55, paragraph 2. Emphasis was also placed on envisaging an exception to the rule based on the express consent or waiver given by the State that had provided the information or evidence, with reference being made to article 55, paragraph 3. It was suggested that such an exception should be based on the consent or waiver of the accused. It was also suggested that the rule of speciality could be limited to situations in which the State concerned raised an objection.

10. Reciprocity

347. Some delegations were of the view that the rule of reciprocity should apply to the relation between the Court and States, to the effect that the Court should be under an obligation to comply with requests by States exercising jurisdiction in conformity with the notion of complementarity. The view was also expressed that the Statute should merely envisage the possibility of the Court providing information or evidence to a State to assist with a national investigation or prosecution of a similar or related case without overburdening the Court. Although some delegations raised this issue under the rubric of reciprocity, other delegations pointed out that since the Court would not be a State and could not be obligated to reciprocate assistance rendered by a State in a strict sense, it would be more appropriate to consider the issue as

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possible cooperation provided by the Court to a State. It was further stated that a provision stipulating such cooperation by the Court could be included in the Statute. The view was expressed that the Court could not provide information obtained from one State to another State without the consent of the former State.

11. Assistance of non-States parties (article 56)

348. The view was expressed that non-States parties should be encouraged to provide assistance to the Court as envisaged in article 56. It was suggested that the Court should be authorized to enter into special agreements or ad hoc arrangements with non-States parties to encourage and enable such States to provide assistance to the Court in gpneral or i n particular cases. It was also suggested that reciprocity or mutual cooperation might be an important factor in obtaining the assistance of non-States parties.

12. Recognition of judgements and enforcement of sentences

349. It was generally recognized that because this subject involved novel features and therefore only preliminary comments could be made at the current stage, these issues would require further consideration and elaboration.

350. Concerning the issue of penalties, it was felt that penalties other than imprisonment, e.g., fines, restitution, compensation, might have to be considered under part θ.

(a) Recognition of judgements (article 58)

351. The view was expressed that by accepting the jurisdiction of the Court States parties would, by definition, recognize the Court's judgements. Therefore, it was not necessary to provide for a particular recognition procedure in the Statute. Article 58, therefore, should be modified to provide that a State not only should recognize a judgement of the Court but also should enforce the Court's sentences in its territory. The view was also expressed that States parties were bound to recognize the Court's judgements upon the entry into force of the Statute, and it was proposed that article 58 be amended by adding the sentence: "States parties have to recognize the judgements of the Court as judgements rendered by their national judiciaries." It was further proposed that, as a consequence of the rule of reciprocity, a provision in article 58 should stipulate that the Court also should recognize the judgements of the States parties.

352. Some delegations felt that automatic recognition of judgements and enforcement of sentences of the Court should be subject to the provision that recognition should not be inconsistent with fundamental provisions of the domestic law of States parties.

353. A contrasting view envisaged the Court as being on equal footing with national legal systems and that the Court's judgements, therefore, should not be automatically recognized, but rather examined by the national Court concerned.

354. There was support for both a method of continued enforcement and a national exequatur procedure. Regarding a national exequatur procedure, the point was made that the Statute should ensure that the reasons for a State's refusal to execute the Court's judgement were kept to an absolute minimum.

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A/51/22

Report of the Preparatory Committee on the Establishment of an International Criminal Court

Volume II

(Compilation of proposals)

General Assembly Official Records · Fifty-first Session Supplement No. 22A (A/51/22)

United Nations · New York, 1996 ICC-02/04-14-AnxA 13-02-2007 122/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 122/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

CONTENTS (continued) Article 27. Commencement of prosecution Article 28. Arrest

Article 29. Pre-trial detention or release

Article 30. Notification of the indictment Article 34. Challenges to jurisdiction Article 35. Issues of admisaibility Article 36. Procedure under articles 34 and 35 Article 37. Trial in the presence of the accused Article 38. Functions and powers of the Trial Chamber Article 41. Rights of the accused Article 43. · Protection of the accused, victims and witnesses Article 44. Evidence Article 45. Quorum and judgement H. Appeal and review I. Penalties Article 46. Sentencing Article 47. Applicable penalties J. Cooperation between States and the International Criminal Court 1. General issues relating to States' cooperation with the Court 2. Apprehension and surrender K. International cooperation and judicial assistance 1. Nature of assistance 2. Obligation of States parties to provide assistance (article 51, paragraph 1) 3. Exceptions or limitations (a) National laws and constitutions (b) Public or national security interests (c) National investigation or prosecution

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Article 28

Arrest

I. ILC DRAFT 1. At any time after an investigation has been initiated, the Presidency may at the request of the Prosecutor issue a warrant for the provisional arrest of a suspect if :

(a) there is probable cause to believe that the suspect may have committed a crime within the jurisdiction of the Court; and (b) the suspect may not be available to stand trial unless provisionally arrested. 2. A suspect who has been provisionally arrested is entitled to release from arrest if the indictment has not been confirmed within 90 days of the arrest, or such longer time as the Presidency may allow. 3. As soon as practicable after the confirmation of the indictment, the Prosecutor shall seek from the Presidency a warrant for the arrest and transfer of the accused. The Presidency shall issue such a warrant unless it is satisfied that : (a) the accused will voluntarily appear for trial; or (b) there are special circumstances making it unnecessary for the time being to issue the warrant. 4. A person arrested shall be informed at the time of arrest of the reasons for the arrest and shall be promptly informed of any charges.

II. PROPOSALS

A. Is it possible - and on which grounds - to order measures restricting or suppressing the liberty of an accused -.vi.i.-.. ï _·! ·. ·;:· At any time after an investigation has been initiated, the Presidency may at the request of the Prosecutor issue a warrant for the provisional arrest of a suspect if: (a) there is probable cause to believe that the suspect may have committed a crime within the jurisdiction of the Court; and (b) the suspect may not be available to stand trial unless provisionally arrested.

Any person implicated under this Statute shall remain free during the proceedings, unless he is placed under judicial supervision or taken into

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custody prior to the judgement, in accordance with the rules and conditions set forth below.

Persons aged 13 to 18 at the time of the proceedings may be taken into custody prior to the judgement only under exceptional circumstances.

The decision to place a person under judicial supervision prior to the judgement shall be taken by the Preliminary Investigations Chamber of the Court at the request of the Prosecutor.

The Preliminary Investigations Chamber may also place a person under judicial supervision when it declines to grant the Prosecutor's request that he be taken into custody, but wishes to impose certain restrictions on his freedom, or when it releases a person and wishes to impose certain restrictions on hie release.

When it issues a warrant for judicial supervision, the Preliminary Investigations Chamber subjects a person to one or more obligations, in particular:

(a) not to go outside the territorial limits established by the Preliminary Investigations Chamber without its explicit agreement;

(b) not to leave his place of abode or a residence established by the Preliminary Investigations Chamber except under the conditions and for the reasons determined by it; ! j (c) not to frequent certain places and to refrain from contact with certain persons designated by the Preliminary Investigations Chamber;

(d) to respond to attendance notices issued by any authority or qualified person designated by the Preliminary Investigations Chamber;

(e) not to engage in certain professional activities;

(f) to pay a security deposit, the amount, time limits and payment terms of which shall be determined by the Preliminary Investigations Chamber;

(g) to hand-over to the Registrar of the Court all documents establishing his identity, including his passport;

(h) to furnish securities in rem or in personam designed to guarantee the rights of the victims.

Persons aged 13 to 18 at the time of the proceedings may also be placed in appropriate educational institutions.

Warrants for judicial supervision may be issued at any time before trial.

Prior to the confirmation of the indictment, the Preliminary Investigations Chamber may issue warrants of provisional arrest and detention after the investigation has been initiated.

While it is considering the confirmation of the indictment, the Preliminary Investigations Chamber may issue warrants of arrest and transfer.

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Replace "Presidency" by "Indictment Chamber"

No person shall be subjected to arbitrary arrest or detention. Nor shall any person be deprived of his liberty except on such grounds and in accordance with such procedure as are established by the rules of the Court.

When the Trial Chamber deems that the danger of the accused escaping or hindering the proceedings may reasonably be avoided by methods other than detention, it may order any of the following measures:

(a) home arrest, in his own home or under somebody else's custody, and watched or guarded in the way the Trial Chamber shall determine;

(b) the obligation of submitting himself to the care or guard of a certain person or institution, who shall periodically report to the tribunal;

(c) the prohibition to absent himself without leave from the territory of the State where he is or to absent himself from the territory determined by the Trial Chamber.

The Trial Chamber may impose one of these measures or combine some of them, depending on the case, and shall order the steps to be taken and the notifications necessary to guarantee their enforcement.

In cases of urgency, when the Court makes a request for provisional detention, notifying the requested Party that a warrant of arrest has been issued or a sentence had been imposed for an offence specified in article [ ], the requested State party may provisionally detain the person sought in accordance with its national laws.

At any time after an investigation has been initiated, the Presidency may at the request of the Prosecutor issue a warrant for the arrest of a suspect before indictment if :

fa) there is probable cause to believe that the suspect may have committed a crime within the jurisdiction of the Court; and

(b) the suspect may not be available to stand trial unless arrested before indictment.

B. Maximum duration of detention before indictment

A suspect who has been provisionally arrested is entitled to release from arrest if the indictment has not been confirmed within 90 days of the arrest, or such longer time as the Presidency may allow.

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Any person for whom a warrant of arrest and detention is issued shall be released if the indictment concerning him, accompanied by a warrant of arrest and transfer replacing the initial warrant, are not served on him within 60 days from the date of his arrest.

Notwithstanding the provisions of paragraph 2 of this article and article 66 (5), the effects of a warrant of arrest and detention shall not be interrupted by the actions challenging the submission of cases to the Court provided for in article 69.

"... within 60 days of the arrest . Upon request of the Prosecutor, the Indictment Chamber mav under exceptional circumstances extend this period to a maximum extent of 90 days."

1. A warrant of arrest issued pursuant to article X (A 28 (3) ILC) of the Statute shall be signed by the Presidency or the Judge (or Trial Chamber) who has dealt with the matter pursuant to a delegation under article X (A 8 (5) ILC) of the Statute and shall bear the seal of the Court. It shall be accompanied by a copy of the indictment and a statement of the rights of the accused under the Statute and rules.

2. A warrant for the arrest of the accused and an order for his surrender to the Court shall be transmitted by the Registrar to the national authorities of the State in whose territory or under whose jurisdiction or control the accused resides, or was last known to be, together with instructions that at the time of arrest the indictment and the statement of the rights of the accused be read to him or her in a language he or she understands and that he or she be cautioned in that language.

3. When an arrest warrant issued by the Court is executed, a member of the Prosecutor's Office may be present as from the time of arrest with the agreement of the State concerned.

[Note. If provisional arrest as contemplated in A 28 (1) of the ILC Statute is retained, a similar rule to this one will need to be elaborated in part VI, Investigation and rights of suspects.]

A suspect who has been provisionally arrested is entitled to release from arrest if the indictment has not been confirmed within 30 days of the arrest, or such longer time as the Presidency may allow if the special circumstances so recuire.

If the Court fails to present the request for extradition within [30] days from the date of provisional detention, the person detained shall be set at liberty; provided that this stipulation shall not prevent the requested State from instituting a proceeding with a view to extraditing the person sought if a request for extradition is subsequently received.

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(a) The Prosecutor shall transmit the warrant to the State where the suspect is located« along with a request for the arrest of the suspect and a statement of the reasons to believe that the suspect may have committed a crime within the jurisdiction of the Court and that the Prosecutor expects to file an indictment and make a request for indictment within [90] days. The arrest request should be accompanied by a description of the person sought, together with all available information that will help to identify and locate the person. Where necessary under the law of the State where the suspect is located, the Prosecutor should also provide a brief summary of the facts of the case and the reasons why pre-indictment arrest is believed to be urgent and necessary.

(b) Where a suspect is arrested before the indictment and an indictment is subsequently filed against the suspect, the Prosecutor shall transmit a copy of the indictment to the State with custody of the accused, along with a request that the accused be surrendered to the Court for trial. The request should be followed by such other additional material as may be required by the law of the State with custody of the accused.

(c) In the case where a suspect has been arrested before indictment, if before the expiry of [90] days, a decision is taken by the Prosecutor not to indict the suspect or the Presidency decides not to confirm the indictment, the Prosecutor shall immediately advise the custodial State of that fact and the custodial State shall take steps to have the suspect immediately released from custody or any conditions of bail. 33/

C. Measures that can be taken at the time of or after the indictment

As soon as practicable after the confirmation of the indictment, the Prosecutor shall seek from the Presidency a warrant for the arrest and transfer of the accused. The Presidency shall issue such a warrant unless it is satisfied that:

(a) the accused will voluntarily appear for trial; or

(b) there are special circumstances making it unnecessary for the time being to issue the warrant.

Under a warrant of arrest and detention, the person shall be arrested by the competent national authorities and brought before the appropriate national judicial authority pursuant to article 55 (3).

If the accused is already in custody under a warrant of arrest and detention, pursuant to article 58, the warrant of arrest and transfer shall replace the initial warrant.

3_3_/ A concern is that this provision may create constitutional problems for certain States for which it would be unacceptable for a person to be in custody for a period and then not be indicted. A possible solution is to insert a provision that some form of assurance should be given that an indictment will follow the request for arrest. -132- ICC-02/04-14-AnxA 13-02-2007 128/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 128/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

The warrant of arrest and transfer and the confirmed indictment shall be served on the accused in his place of detention. He shall be brought before the appropriate national judicial authority pursuant to article 55 (3).

The accused shall be kept in custody and transferred to the Court in the conditions provided for in Part 4, Title III, of this Statute.

If the accused is not in custody and his place of residence is known, he shall be arrested by the competent national authorities and brought before the appropriate national judicial authority pursuant to article 55 (3).

The accused shall be taken into custody pursuant to the warrant of the Preliminary Investigations Chamber, in an appropriate place of detention in the State responsible for executing the warrant and shall be transferred to the Court in the conditions provided for in Part 4, Title III, of this Statute.

If the accused is a fugitive, the warrant of arrest and transfer issued by the Preliminary Investigations Chamber shall have the effect of a warrant to search for the wanted person and shall be disseminated by all appropriate means. Once the accused is apprehended, the authorities shall proceed in accordance with paragraph 2 of this article.

A warrant of arrest and transfer shall remain in effect until the date of the judgement. Its effects shall not be interrupted by the actions challenging the submission of cases to the Court provided for in article 69.

In the case where no pre-indictment warrant has been obtained, as soon as practicable after the confirmation of the indictment, the Prosecutor shall seek from the Presidency a warrant for the arrest of the accused. The Presidency shall issue such a warrant unless it is satisfied that:

(a) the accused will voluntarily appear for trial;

(b) there are special circumstances making it unnecessary for the time being to issue the warrant.

The Prosecutor shall transmit the warrant to the State where the accused is located along with a request that the accused be arrested and surrendered to the Court for trial. The request should be accompanied by a description of the ; person sought, together with all available information that will help identify i and locate the person. The request should be followed by such other additional material as may be required by the law of the State where the accused is located.

D. Who can request - and following which formal requirements and procedure - such measures to be taken, whether before or after the indictment

A request for arrest or surrender [duly signed by the Prosecutor] shall :

(a) be made by letter, fax, e-mail or any medium capable of delivering a written record (provided that a request shall be confirmed through the diplomatic channel);

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(b) contain or be supported by.

(i) information describing the person sought, sufficient to identify the person and information as to that person's probable location;

(ii) in the case of a request for pre-indictment arrest:

a. a copy of the warrant for arrest;

b. a statement of the reasons to believe the suspect may have committed a crime within the jurisdiction of the Court and that the Prosecutor expects to seek an indictment within [90] days;

c. a brief summary of the facts of the case;

d. a statement as to why pre-indictment arrest is urgent and necessary;

(iii) in the case of a request for post-indictment arrest and surrender of a person not yet convicted:

a. a copy of the warrant of arrest and indictment;

b. such information, documents or statements outlining the facts of the case as may be required by the law of the requested State;

(iv) in the case of a request for the arrest and surrender of a person already convicted:

a. a copy of any warrant of arrest for that person;

b. a copy of the judgement of conviction;

c. information to demonstrate that the person sought is the person referred to in the judgement of conviction;

d. (if the person sought has been sentenced) a copy of the sentence imposed and a statement of any time already served and that remaining.

Where the requested State Party considers the information provided insufficient to allow it to comply with the request it may seek, without delay, additional information.

The decision to detain a person prior to the judgement shall be taken by the Preliminary investigations Chamber of the Court at the request of the Prosecutor. The Preliminary Investigations Chamber must give a reason for its decision based on paragraphs 2 and 3 of this article.

tmder this Statute, a person may be detained prior to the judgement when, notwithstanding his assertions to the contrary, there are serious reasons for believing that he has participated in a crime, either as perpetrator or as accomplice, and that taking him into custody is the only way to:

(a) preserve the evidence or material clues;

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(b) avoid pressure on witnesses and victims;

(d) protect him;

(e) put a stop to the crime or prevent its recurrence;

(f) ensure that he remains at the disposal of the Court if the risks of flight appear to be high.

Detention prior to the judgement may also be decided on if the person wilfully evades the obligations of judicial supervision to which he has been subjected under article 53.

The Prosecutor's written request for the issuance of a. warrant of arrest or restriction of liberty prior to the judgement must contain the name of the person concerned, a statement of the charges against him and the reasons for which the warrant is necessary, along with a list of States Parties capable of executing the warrant. The Preliminary Investigations Chamber shall request the Prosecutor to provide it with all available evidence.

The warrant issued by the Preliminary Investigations Chamber must contain: (a) the name of the person concerned;

(b) a statement of the charges against him; (c) the reasons for the issuance of the warrant; (d) a statement of the suspect's rights under article 51 (1); (e) a statement of the suspect's right to request, at any time, either his release or the suspension or amendment of judicial supervision, pursuant to article 56.

The States Parties listed in the Prosecutor's request shall be notified of a warrant issued by the Preliminary Investigations Chamber. The warrant shall take effect as soon as it is brought to the attention of the person concerned by the national authorities charged with executing it. Any person for whom the Preliminary Investigations Chamber issues a warrant of arrest or restriction of liberty must receive a certified copy of the warrant and must be promptly brought before the appropriate judicial authority of the State in which the warrant is executed. The national judicial authority shall ensure that the warrant does, in fact, apply to that person and that it meets the formal requirements laid down in this Statute.

1. A warrant of arrest issued pursuant to article X (A 28 (3) ILC) of the Statute shall be signed by the Presidency or the Judge (or Trial Chamber) who has dealt with the matter pursuant to a delegation under article X (A 8 (5) ILC) of the Statute and shall bear the seal of the Court. It shall be accompanied by a copy of the indictment, and a statement of the rights of the accused under the Statute and Rules.

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2. λ warrant for the arrest of the accused and an order for his surrender to the Court shall be transmitted by the Registrar to the national authorities of ' the Stat· in whose territory or under whose jurisdiction or control the accused i resides, or was last known to be, together with instructions that at the time of arrest the indictment and the statement of the rights of the accused be read to him or her in a language he or she understands and that he or she be cautioned . in that language. 3. When an arrest warrant issued by the Court is executed, a member of the Prosecutor's Office may be present as from the time of arrest with the agreement ; of the State concerned. i l [Note. If provisional arrest as contemplated in A 28 (1) of the ILC Statute is retained, a similar rule will need to be elaborated in Part VI, Investigation and rights of suspects.] I

The request for provisional detention shall describe the identity of the person to be sought and the facts of the case, and shall contain such further information as may be required by the laws of the requested State.

When ratifying this Statute, States Parties shall notify the Secretary- General of the United Nations of the conditions under which they would refuse provisional detention and shall specify elements which must be included in a written request for provisional detention. States Parties shall not refuse a request for detention for reasons other than those indicated.

E. Information which should be given to the arrested person [Note. The question of the rights of the arrested is dealt with in detail in paragraph 26 (6); the question of the information to be provided to the suspected/accused is dealt with in paragraph 30.] A person arrested shall be informed at the time of arrest of the reasons for the arrest and shall be promptly informed of any charges.

If the accused is already in custody under a warrant of arrest and detention, pursuant to article 58, the warrant of arrest and transfer shall replace the initial warrant. The warrant of arrest and transfer and the confirmed indictment shall be served on the accused in his place of detention. He shall be brought before the appropriate national judicial authority pursuant to article 55 (3).

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The accused shall be kept in custody and transferred to the Court under the conditions provided for in Part 4, Title III, of this Statute.

Any person who is arrested or provisionally arrested shall be informed, at | the time of arrest or provisional arrest, of the reasons for his arrest or j provisional arrest and shall be promptly informed of any charges against him/her in accordance with the rules of the Court. I Any person arrested, provisionally arrested or detained on a criminal ! charge shall, in accordance with the rules of the Court, be brought promptly j before a judge or other officer authorized to exercise judicial power and shall be entitled to trial within a reasonable time or to release.

[Note. The question of challenge against such measures is dealt with under paragraph 29. The questions of the content of a warrant of arrest and transfer and of provisional arrest are also dealt with in articles 53, 53 bis and 53 ter of the report of the working group on cooperation. See in particular pages 117, 121, 122, 123 and 124 of the report of the first session of the Preparatory Committee {A/AC.249/1).]

The following proposal for article 28 was also made by the informal group ! on judicial cooperation and enforcement: '

1. At any time after an investigation has been initiated, the Presidency may at the request of the Prosecutor issue a warrant for the arrest of a suspect before indictment if:

(a) there is probable cause to believe that the suspect may have committed a crime within the jurisdiction of the Court; and

(b) the suspect may not be available to stand trial unless arrested before , indictment. j

2. (a) The Prosecutor shall transmit the warrant to the State where the suspect is located, along with a request for the arrest of the suspect and a statement of the reasons to believe that the suspect may have committed a crime within the jurisdiction of the Court and that the Prosecutor expects to file an indictment and make a request for indictment within [90 days]. The arrest ! request should be accompanied by a description of the person sought, together with all available information that will help to identify and locate the person. Where necessary under the law of the State where the suspect is located, the Prosecutor should also provide a brief summary of the facts of the case and the reasons why pre-indictment arrest is believed to be urgent and necessary.

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(c) In the case where a suspect has been arrested before indictment, if before the expiry of [90 days], a decision is taken by the Prosecutor not to indict the suspect or the Presidency decides not to confirm the indictment, the Prosecutor shall immediately advise the custodial State of that fact and the custodial State shall take steps to have the suspect immediately released from custody or any conditions of bail. 34 /

3. In the case where no pre-indictment warrant has been obtained, as soon as practicable after the confirmation of the indictment, the Prosecutor shall seek from the Presidency a warrant for the arrest of the accused. The Presidency shall issue such a warrant unless it is satisfied that :

(a) the accused will voluntarily appear for trial; or

(b) there are special circumstances making it unnecessary for the time being to issue the warrant.

3 bjLfi. The Prosecutor shall transmit the warrant to the State where the accused is located along with a request that the accused be arrested and surrendered to the Court for trial. The request should be accompanied by a description of the person sought, together with all available information that will help identify and locate the person. The request should be followed by euch other additional material 35/ as may be required by the law of the State where the accused is located.

3_i/ A concern is that this provision may create constitutional problems for certain States, for which it would be unacceptable for a person to be in custody for a period and then not be indicted. A possible solution is to insert a.provision that some form of assurance should be given that an indictment will follow the request for arrest. 3_£/ Only information pertaining to elements of fact, and not of law, is envisaged under this provision.

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PART 7. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE* 78/

[Article X 7j>/

[Reciprocity] Obligation to coopérât« and general provisions 80/

A. General obligation to cooperate

1. States Parties shall, in accordance with the provisions of this Part, cooperate with the Court in its investigation and prosecution of crimes under this Statute. A State shall not deny a request for cooperation except as specifically provided in this Part.

[ [States Parties shall afford to the Court the widest possible measure of mutual assistance] or [States Parties and the Court shall afford each other reciprocal cooperation and mutual assistance] in connection with [the] criminal investigations and proceedings under this Statute.]

States Non-Parties may offer their assistance to the Court under conditions determined by them or pursuant to a specific agreement.

States Parties shall respond without undue delay to the request.

* * *

States Parties shall respond without delay to any request for cooperation submitted by the Court under this Statute. They may request the Court to provide any additional information which they consider necessary to enable them to respond to the request.

* Note. These proposals and compilations were prepared by an informal group dealing with Part 7. They neither represent a text agreed upon among delegations nor suggest that every item should be included .in the Statute. They identify possible elements to be included and examples of some possible texts. The order of the articles as well as the headings are only of an indicative character and have not been finally agreed upon.

78/ Not all assistance is provided by judicial authorities. "Mutual assistance", which is developing into a term of art, may be a better option and has throughout the text been inserted in square brackets after "judicial".

79/ Some delegations are of the view that the obligation to cooperate should be subject to certain preconditions. Theref re, there is no need as such in the Statute for an article X, which may cause jine confusion on the understanding of obligation and limitations on it.

SO/ This provision reflects the need for a general statement of the obligation of States to cooperate with the Court and related matters.

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The obligation to cooperate provided for in paragraph 1 of this article ahall be discharged in accordance with the conditions set out in. this Statute.

The Court may request the extradition of a fugitive to States Parties as regards an offence specified in article [ ] when the Court has issued a warrant of arrest.

* * *

[Note. Another option is to couch this provision in reciprocal terms.]

B. Channels for communication of requests/Authorities competent to make and receive requests

2. [Requests for cooperation may be made by the Court, [or Prosecutor] and shall be transmitted through diplomatic channels, unless the Court and the requested State agree on another mode for transmitting the requests.] 8l/

The request under paragraph l shall be made in written form through diplomatic channels. If a requested State considers the information and evidence provided by the Court insufficient as a basis for decisions whether to offer assistance, it may seek further information and evidence from the Court as it deems necessary.

All the documents to be provided by the Court to State Party shall be accompanied by a duly certified translation in the language of the party.

The requested State shall through diplomatic channels promptly notify the court of its decision as regards the request for extradition.

An alternative would be to provide that "Communications relating to a request under this Part shall be between the Registrar, or Prosecutor acting under article 26, and the national authority designated by each State party for this purpose [unless otherwise permitted by the laws of that State party]. See also article 53 (l) and 57 (2).

The ILC draft Statute commingles provisions of mutual assistance on the one hand, ana. arrest and surrender on the other. In this text these two aspects have been separated into two distinct provisions, respectively articles 51 and 53. Each provision contains its own provisions relating to the obligation to cooperate and the grounds for denial of the request.

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Each State Party shall designate, at the time of deposition of Its instruments of ratification, the national authority competent to receive requests for cooperation transmitted by the Court and the various authorities to which requests for cooperation may be submitted, as determined by the urgency of the request and the means of its transmission.

However, a State Party may amend the list of competent national authorities subsequent to ratification, but such amendment shall not be opposable until six months have elapsed from the date of its deposition.

Requests for cooperation shall be transmitted to States by the Registrar. The replies of States shall be addressed to him, as shall any accompanying documents or papers.

[Note. Alternatively reliance,could be had on cooperation between States (see A/AC.249/1, para. 179) or a combination of the two systems.]

C. States Parties' failure to cooperate 827

3. Where non-coopérâtion by States with requests by the Court [or Prosecutor] prevents the Court from performing its duties in terms of this Statute, the Court may request the Security Council to take the measures necessary to enable the Court to exercise its jurisdiction, in relation to both States Parties to this Statute, or States not parties.

The Preliminary Investigations Chamber of the Court may bring to the attention of the Security Council any failure to discharge the obligation to cooperate provided for in paragraph 1 of this article which obstructs the performance of the Chamber's functions. 83/

827 Reservations were expressed regarding the role of the Security Council in the Court. Some delegations consider that it should not be involved in any way in the work of the Court while others underscored that all provisions in the Statute pertaining to its role should confirm to the agreement to be reached on principles of relationship between the Court and the United Nations among the States Members of the united Nations. The legal basis of the role of the Security Council -will also have to be viewed in the context of the powers of the Security Council in the Charter of the United Nations.

83/ Paragraph 1 deals with the general obligation to cooperate with the Court.

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D. Cooperation bv non-States Parties

4. The Court may call on any State not party to this Statute to provide assistance fi4/ provided for in this Part on the basis of comity, an ad hoc arrangement or through entry into agreement with such State. 85/

The Court may also make a request under paragraph X to any non-State Party. Non-State Parties may honour the request and provide necessary assistance in accordance with their national laws.

I Stafces non-parties may offer their assistance to the Court under conditions determined by them or pursuant to a specific agreement with the Court.

Ξ. Language of requests and answers 8fi/

5. [Requests for cooperation shall be in an official language of the requested State unless otherwise agreed.]

The request under paragraph 1 shall be made in written form through diplomatic channels. If a requested State considers the information and evidence provided by the Court insufficient as a basis for decisions whether to offer assistance, it may seek further information and evidence from the Court as it deems necessary.

All the documents to be provided by the Court to State Party shall be accompanied by a duly certified translation in the language of the Party.

Requests for cooperation addressed to States Parties by the Court shall be drafted in one of the two working languages referred to in article 25, in accordance with the choice made by that State at the time of deposition of its instruments of ratification.

8_4/ See Syracuse draft, article 56. This is preferable to article 56 of the ILC draft, which formulates the same principle in the form of an entitlement to States which are not party to the Statute. It appears more correct to formulate the principle as empowering the Court to request cooperation, leaving open the reaction of the requested State.

This could form the substance of a separate article. It should also be considered whether a provision should be added providing that the Court shall have the power to respond to any counter- request by such a State that has been requested to cooperate.

The issue of the working languages of the Court has not yet been addressed by the Preparatory Committee. Some delegations expressed doubts about the current drafting of article 25 of the Statute.

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The same shall apply to papers and documents transmitted to the Court by States Parties in response to the requests referred to in paragraph λ of this article. The Court may also request the transmission of documents in their original language.

tNote. It was mentioned that in the field of international cooperation there exists no obligation to translate documents transmitted in the execution of a request.]

F. Extent to which national law controls procedures for execution of requests

6. States Party to this Statute shall inform the Registrar of any conditions under their laws that requests for cooperation and judicial [mutual] assistance are required to comply with, and of any amendments to such laws.

The obligation to cooperate provided for in paragraph 1 of this article shall be discharged in accordance with the conditions set out in this Statute.

Subject to the provisions of paragraph 2 of this article, the procedure by which a State Party discharges its obligation to cooperate shall be governed by its internal law. 87/

The Court may also make a request under paragraph 1 to any Non-State Party. Non-State Parties may honour the request and provide necessary assistance in accordance with their national laws.

States Parties shall undertake to extradite to the Court any fugitive requested for extradition and found in their territories in accordance with this Statute and their national laws.

When a State Party honours the request for extradition, it shall promptly detain the fugitive under its national laws.

The request for extradition shall include a description of the identity of the fugitive and the facts of the case, and shall contain such further information as may be required by the laws of the requested State.

In cases of urgency, when the Court makes a request for provisional detention, notifying the requested Party that a warrant of arrest has been issued or a sentence has been imposed for an offence specified in article [ ], the requested State Party may provisionally detain the person sought in accordance with its national laws.

877 Paragraph 2 deals with the obligation to cooperate.

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States Parties shall honour and comply with the request for assistance through proceedings according to their national laws.

States Parties shall give approval for the transportation of the persons to the Court through their territories in accordance with their national laws.]

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Article 51

Cooperation and "Judicial assistance

I. ILC DRAFT 1. States parties shall cooperate with the Court in connection with criminal investigations and proceedings under this Statute. 2. The Registrar may transmit to any State a request for cooperation and judicial assistance with respect to a crime, including, but not limited to:

(a) the identification and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the arrest or detention of persons; and

(e) any other request which may facilitate the administration of justice, including provisional measures as required. 3. Upon receipt of a request under paragraph 2: (a) in a case covered by article 21 (1) (a), all States parties; (b) in any other case, States parties which have accepted the jurisdiction of the Court with respect to the crime in question; shall respond without undue delay to the request.

II. PROPOSALS The title of the article should read: "Cooperation and judicial [mutual] assistance".

A. Obligation to provide Judicial [mutual] assistance 1. [States Parties shall] [in a case which is not inadmissible under article 35] [afford to the Court the widest possible measures of judicial [mutual] assistance] OR [States have the obligation to provide assistance to the Court] 88/ in connection with any investigations and proceedings under this Statute. * * *

88/ The success of the Court depends on the effectiveness of the provisions pertaining to cooperation by States with requests for assistance. In this regard the imposition of a definite obligation on States to cooperate, as opposed to a more vague provision allowing a discretion on whether to cooperate, should be considered. The argument for the former option is that a rigid and absolute obligation, allowing for no discretion to States party which accept the jurisdiction of the Court, would be crucial to, and strengthen, the principle of complementarity. Consideration could be given to making the same rigid principles applicable to requests by States with preferent jurisdiction over a. crime.

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States Parties shall [in a case which is (decided by the Court as) not inadmissible under article 35] cooperate with the Court in connection with criminal investigations and proceedings under this Statute.

States Parties shall honour and comply with the request for assistance through proceedings according to their national laws.

The obligation to cooperate provided for in article 60 jL9/ shall take precedence over all the legal obstacles which the State to which the request for judicial assistance is made invokes against the Court pursuant to its internal law or the treaties to which it is a party.

B. Types/categories of assistance (exhaustive or non-exhaustive) 90/

2. The Registrar, or the Prosecutor lin the performance of his functions under article 26], £!/ may with respect to a crime under article 20 transmit a request in accordance with article 57 92/ to any State Party for cooperation and judicial [mutual] assistance, pertaining to:

The Court's requests for judicial assistance may concern, without being i limited thereto: i ι (a) The seizure and transmission to the Court of all papers, files or documents, including judicial decisions, extracts from criminal records, and documents of governmental bodies;

(b) The service of procedural documents;

8j>/ Article 60 deals with the general obligation to cooperate with the Court .

Depending on the Court's remedies, is there a need to include assistance relating to compensation or restitution to victims?

See article 26 (2) (e) , which empowers the Prosecutor to seek the assistance of States, or article 26 of the ILC draft, which refers to pre-indibtment requests. Requests by the Prosecutor after the indictment could also be provided for.

See the note under article 52 in the present compilation. If elements of article 57 of the ILC draft are slotted in as article 52, bringing them into close proximity of these assistance provisions, this reference would change to »article 52".

Paragraph (j) is already a catch-all, obviating the need for "including, but not limited to".

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(à.) The questioning of any suspect or accused, including those named in a request for transfer;

(e) The production and transmission of any expert opinion or report necessary to the Court . * * *

Scope of assistance. States Parties shall, in accordance with the provisions of this article, comply with requests for legal assistance by the Court [or Prosecutor] with respect to the investigation or prosecution of a crime under the Court's jurisdiction, which assistance shall include:

(a) the identification and whereabouts of persons or the location of items;

(b) the taking of testimony and the production of evidence; * * *

the taking and production of [testimony or other] evidence and statements of persons; 94/

(d) the temporary transfer of persons in custody, with their consent, in order to provide testimony or other assistance to the Court;

(d bis) assisting in the [making available/transfer] of other persons not in custody, in order to provide testimony or other assistance to the Court;

(e) the conduct of on- site investigations and inspections; 96 /

(f) permitting the Court to sit on its territory for the purpose of taking of evidence or of conducting a proceeding before the Court;

94/ Other aspects that could be included in this provision are "including records of government" in regard to the production of evidence, and "whether or not under oath" with regard to statements. 95/ The problem of the arrest and forcible transfer of recalcitrant witnesses to the Court creates problems for many States. Provision could be made in the rules of the Court for the Court to accept testimony recorded by the requested State in alternative ways, for instance by way of video recordings (see footnote 106 below). Another alternative would be to allow the Prosecutor/ Court to take a deposition from such a witness within the territory of the requested State, provided of course that the defence would also be allowed to cross-examine the witness if the Prosecutor takes the deposition. 96_/ See ILC draft Statute article 26 {2} (c). It has been observed that this is also a form of cooperation. This provision as drafted is conceivably wide enough to allow not only the Prosecutor to utilize it, but the Court as well.

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(g) executing searches ana seizures; 97/

(h) provision of originals and certified copies of relevant records and documents ;

(i) taking action as permitted by law to prevent injury to, or the intimidation of, a witness or the destruction of evidence,· 98/ or

(j) identifying, tracing, freezing, seizing and forfeiting proceeds and instrumentalities of crime;

(k) any other assistance [not prohibited by the law of the requested State 99/1 which the Court may require, loo/

The Court may request the cooperation and assistance of any State party on matters including, but not limited to:

(a) the extradition of fugitives;

(b) the provisional detention of fugitives;

(d) search and seizure;

(e) inspections and expert examinations;

(t) the identification and location of suspects, witnesses or any other persons;

(g), the forwarding of evidentiary documents and seizable evidentiary materials;

(h) the approval of transportation of persons surrendered through its territory.

The Court may make a request to States Parties for assistance as provided for in subparagrapha l (c) to (g) inclusive of article 1 (hereinafter referred

S2/ This provision appeared as a provisional measure in article 52 (!) (b) of the ILC draft Statute.

These measures also appeared in the ILC draft Statute as provisional measures .

If inserted here, this qualification may only apply to subparagraph (k) , and not all the forms of assistance provided for in this article. The aim is, however, to allay concerns States may have regarding the open-endedness of the provision.

100/ Despite the open-endedness created by this subparagraph, it should be considered whether there are any other forms of assistance that need to be specifically provided for.

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to as request for assistance) as regards offences specified in article [ ], j either ex officio or upon request of the prosecution or a defence counsel. i i C. Limitations on obligation; bases for denial of requests -, assistance pursuant to conditions (paragraph 5 (c)} ;

3. With regard to a request pertaining to a crime under: 101/ |

(a) article 20 (a) to (d) , all States Parties; i

(b) article 20 (e), States Parties which have accepted the jurisdiction of ; the Court with respect to the crime in question, : shall respond without undue delay to the request. i

I * + * j

I 3. ... request, without prejudice to the rights under article 26. j

* * * i

Secrecy of defence The obligation to cooperate provided for in article 60 shall take ! precedence over all the legal obstacles which the State to which the request for judicial assistance is made invokes against the Court pursuant to its internal law or the treaties to which it is a party. 1. Any person heard or examined by the Trial Chamber may invoke restrictions provided for in his national law and designed to prevent the divulgation of confidential information connected with national defence. 2. The Trial Chamber may ask the State of which the persons being heard or : examined are nationals whether it confirms their claim to be bound to secrecy. If the State confirms to the Trial Chamber that an obligation of secrecy '. exists, the Chamber shall note this fact. 3. The provisions of the preceding paragraphs shall also apply to execution of a request for judicial assistance made under article 72. * * *

When ratifying this Statute, States Parties shall notify the Secretary- General of the United Nations of the conditions under which they would refuse assistance and shall specify elements which must be included in a written

ΙΟΙ/ The final wording of this provision, as well as that of the whole article, depends on which crimes are ultimately included under the jurisdiction of the Court. This drafting reflects a situation where the core crimes are under the inherent jurisdiction of the Court. If treaty crimes are excluded initially and a provision is inserted for the revision of the list of crimes, then a proviso could be considered along with auch revision provision, providing for the cooperation by a requested State that has accepted the expanded jurisdiction of the Court with regard to the crime in question. -255- ICC-02/04-14-AnxA 13-02-2007 145/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 145/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

request. States Parties shall not refuse assistance for reasons other than those indicated.

The following conditions do not constitute conditions under which a requested State may refuse to provide assistance, irrespective of paragraph 3: 102/

(a) when the act constituting the offence for which extradition is requested does not constitute an offence under the laws, regulations or ordinances of the requested State;

(b) when the requested State does not deem it appropriate to honour the request.

All the offences specified in article [ ] shall not be deemed to be offences of a political nature as regards a request for assistance under this Statute.

5. (a) A requested State Party may deny a request for assistance, in whole or in part, if: 103/

(i) except for [the crime of genocide under article 20 (a) ] [the crimes under article 20 (a) to (d)], it has not accepted the jurisdiction of the Court with respect to the offence which is the subject of the investigation or prosecution; or

(ii) [the action requested is prohibited by the law of the requested State] 104/

[the authorities of requested State would be prohibited by its domestic laws from carrying out the action requested with regard to the investigation or prosecution of a similar offence in that State];

102/ It was emphasized that other traditional grounds for refusal, such as the public order clause, should also not be allowed to be invoked with respect to requests of the Court for assistance.

103/ The Preparatory Committee generally felt that the grounds on which the request may be refused should be limited in nature and should be specifically spelt out in the Statute. In this regard non bis in idem could also be considered for inclusion, as well as manifest errors of fact or law by the Court, and a statute of limitations if such a provision is included.

104/ This provision should not allow proliferation of grounds for refusal of a request on the basis of national law. The grounds for denial should remain limited to only those contained in this Statute. This provision is intended to cover the situation where, for instance, telephone tapping is requested and the law of the requested State does not allow such action. Consideration could also be given to formulating the provision in positive terms, for instance that "compliance with a request for assistance shall be in accordance with the national law of the requested State".

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(iii) execution of the request would seriously prejudice its security [, ordre public] or other of its essential interests; 105/

(iv) [if the request would be manifestly ungrounded]; or

(v) [if the request is not made in conformity with the provisions of this article.]

(b) [Except where the Court has determined that a case is admissible under section 35, the requested State may postpone or refuse assistance where, in its opinion, execution of the request would interfere with an ongoing investigation or prosecution of the same matter in the requested State or in another State [or with a completed investigation or prosecution of that matter that might have led to an acquittal] ]

[A State may deny a request for assistance, in whole or in part, if:

(i) execution would interfere with an ongoing criminal investigation or proceeding in that State; or

(ii) execution would conflict with an obligation to provide assistance to another State in its investigation or prosecution.

(b bis) Assistance may not be denied on the basis of subparagraph (b) (i) or (b) (ii) if the Court has already declared the case giving rise to the request for assistance to be admissible, and

(i) in a case under subparagraph (b) (i), its decision took into consideration the investigation or proceedings pending in the requested State; or

(ii) in a case under subparagraph (b) (ii), the other State is a State Party, and the Court's decision took into consideration the investigation or proceedings in the other State.]

(c) Before denying a request for assistance, the requested State shall consider whether the requested assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later time or in an alternative manner: 106/ Provided that if the Court or the Prosecutor accepts the assistance subject to conditions, it shall abide by them;

105/ The inherent danger of this provision is that it is possible to interpret it so broadly as to be ultimately counterproductive to the obligation to provide assistance. In this regard a proposal has been made to, where a witness refuses to give evidence on the basis of not wishing to disclose government secrets, provide for the Court to approach the State concerned to confirm the status of the information. The Court would then have to abide by the classification of that State. 106/ In this regard it is conceivable that testimony could, for instance, be recorded electronically and made available to the Court in that format. It should be considered whether it is necessary to include a specific provision to the effect that the Court will be allowed to receive and consider such testimony. See footnote 95 above.

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(d) If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for the denial.

[A requested State Party may deny a request for assistance, in whole or in part, if compliance with the request would put it in breach of an existing [international law] [treaty] obligation undertaken to another [State] [non-State Party]. ] 107/

D· Application to the Court to set aside assistance request

4. [A State Party] may, within 28 days of receiving a request under paragraph 2, file a written application with the Registrar [, or with the Prosecutor where the request is made by the Prosecutor during the investigation phase,] requesting that the Court set aside the request on specified grounds. Pending a decision of the Court on the application, the State concerned may delay complying with paragraph 3, but shall take any provisional measure necessary to ensure that assistance can be given at a later moment. 108./

107/ If a breach of another international law obligation is a ground for denying assistance, what is its precise scope?

(a) Is it confined to obligations owed to non-States Parties only? As between States Parties to the International Criminal Court, participation in the Statute could override earlier inconsistent treaty obligations (see article 30 of the 1969 Vienna Convention on the Law of Treaties) but would it be desirable to have an express provision in the Statute stating so?

(b) Is it confined to obligations arising out of treaties only?

(c) Does it cover requests for arrest and transfer (e.g., requests for the surrender of a foreign diplomat accredited to the requested State Party) or only requests for other forms of assistance (e.g., search and seizure of diplomatic premises)?

Consideration should be given to the relationship between the obligations of States Parties to cooperate with the Court and their other existing but inconsistent international law obligations, e.g., arising from bilateral extradition treaties, the Vienna Convention on Diplomatic Relations. 108/ An expressed concern is that this provision could allow States, in bad faith, to block or delay compliance with requests for assistance. It has been pointed out that it is not in accordance with State practice for a State to challenge the decision of another state to request assistance. Does the provision therefore serve a useful purpose in the context of the Court? Two views are that: (a) the provision opens up other grounds for denial of a request, in direct opposition to the intention that the grounds for refusal should be exhaustively enumerated in the Statute; and (b) that the provision is necessary. It allows for a useful interplay between the Court and national jurisdictions in order to allow the latter to better (in view of the principle of complementarity) take an informed decision. -258- ICC-02/04-14-AnxA 13-02-2007 148/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 148/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

E. Priority of the Court's requests

5. [States Parties and the Court shall give absolute priority to the request under paragraph 1 of this article even over concurring requests from other States [Parties] not having primary jurisdiction according to this Statute. 109/

F. Confidentiality

6. The Court shall ensure the confidentiality of evidence and information except as required for the investigation and proceedings described in the request.

The requested State shall keep confidential a request and any supporting documents, except to the extent that the disclosure is necessary for execution of the request.

The requested State may, when it deems it to be in its interest, transmit documents, papers, files or information to the Prosecutor on a confidential basis. The Prosecutor may then use them only for the purpose of collecting new evidence.

The State may automatically or at the request of the Prosecutor subsequently authorize the publication of such documents, papers, files or information. They may then be used as evidence, provided that they are previously communicated to the accused.

Q. Reciprocal cooperation of the Court with States Parties

7. If requested, the Court shall reciprocally cooperate with and IIP/ provide assistance to a State Party conducting an investigation into actions which constitute a crime under this Statute.

1. The States parties may, for the purposes of a current investigation or legal proceeding, request the Court to transmit papers or documents obtained in the course of an investigation or a legal proceeding conducted by the Court.

2. If such papers or documents have been obtained with the assistance of a State, this State must give its prior consent to any communication addressed to the requesting State. It shall be invited, at the request of the Preliminary Investigations Chamber and through the Registrar, to make its decision known.

3. In the case of the testimony of a witness or expert, such witness or expert must also give his prior consent to any communication addressed to the

109/ If the option, expressed in paragraph 3, is found to be undesirable in view of arguments related to the principle of complementarity, this alternative, reflecting a reciprocal and rigid obligation approach, could be considered.

IIP/ Some support exists for providing a reciprocal obligation on the Court also to provide assistance to States.

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requesting State. He shall be invited to do so at the request of the Preliminary Investigations Chamber and through the Registrar.

4. The Preliminary Investigations Chamber shall grant the request after having obtained the necessary consents.

The Preliminary Investigations Chamber may, under the same conditions, grant such a request from a State non-party. In talcing its decision it shall bear in mind the behaviour of that State in connection with earlier requests for cooperation addressed to it by the Court and the interests of justice.

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Article 52 Provisional measures ! 'j i I. ILC DRAFT

1. In case of need, the Court may request a State to take necessary provisional measures, including the following: (a) to provisionally arrest a suspect;

(b) to seize documents or other evidence; or

2. The Court shall follow up a request under paragraph 1 by providing, as soon as possible and in any case within 28 days, a formal request for assistance complying with article 57.

II. PROPOSALS The title of the article should read:

[Provisional measures] [Request for assistance in case of urgency] I [Note. In view of the proposal at the first session of the Preparatory Committee that provisional arrest be included under the provisions of articles 28 and 29 {as pre-indictment arrest and post-indictment arrest) this provision as contained in the ILC draft Statute could be deleted. Hi/ The : provisional measures pertaining to protection of evidence and witnesses can be seen as assistance measures and have been inserted under article 51 (2). If this is done, the current ILC draft Statute's article 57 pertaining to the form and contents of the request could be inserted here as article 52, bringing it in closer proximity to article 51 to which it applies. ι The question of provisional detention is dealt with in article 53 bis. The question of provisional arrest in case of urgency is dealt with in article 53 ter.l

In cases of urgency, when the Court makes a request for provisional detention, notifying the requested Party that a warrant of arrest has been issued or a sentence has been imposed for an offence specified in article [ ], ] the requested State Party may provisionally detain the person sought in accordance with its national laws.

Ill/ It should be noted, however, that other provisional measures, such as for instance deprivation of freedom through the seizure of passports, may indeed exist that may warrant the retention of this provision if these measures cannot be read in under the catch all provision of article 51 (2) (i). -261- ICC-02/04-14-AnxA 13-02-2007 151/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 151/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

In an emergency the request for transfer referred to in paragraph 1 of this article may be transmitted to a State by any means producing a written communication. It shall be accompanied by a statement of the facts and shall indicate the existence of one of the warrants referred to in paragraph 4 of this article.

The person named in a request for transfer transmitted in this way may be arrested and placed in detention in the manner prescribed for the execution of the warrant mentioned in the said request. This person shall be released automatically if the request for transfer accompanied by the documents referred to in paragraphs 3 and 4 of this article does not reach the State which is detaining him within 30 days from the date of his arrest. However, the person may consent to his transfer to the Court before the expiry of this period if the legislation of the requested State so allows, in which case that State shall proceed to transfer him to the Court as soon as possible.

The release of this person pursuant to the preceding paragraph shall not prevent his re-arrest and transfer to the Court if a request for transfer satisfying the requirements of paragraphs 3 and 4 of this article arrives subsequently.

In an emergency, the request referred to in paragraph 1 of this article may be transmitted to a State by any means producing a written communication.

At the request of the Court, the documents produced in response to the request shall also be sent urgently by any means. The procedure described in paragraphs 2 and 3 of this article shall subsequently be followed.

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Article 53

Transfer of an accused to the Court

I. ILC DRAFT 1. The Registrar shall transmit to any State on the territory of which the accused may be found a warrant for the arrest and transfer of an accused issued under article 28, and shall request the cooperation of that State in the arrest and transfer of the accused.

2. Upon receipt of a request under paragraph 1 : (a) all States Parties: (i) in a case covered by article 21 (1) (a), or (ii) which have accepted the jurisdiction of the Court with respect to the crime in question; shall, subject to paragraphs 5 and 6, take immediate steps to arrest and transfer the accused to the Court; (b) in the case of a crime to which article 20 (e) applies, a State Party which is a Party to the treaty in question but which has not accepted the Court's jurisdiction with respect to that crime shall, if it decides not to transfer the accused to the Court, forthwith take all necessary steps to extradite the accused to a requesting State or refer the case to its competent authorities for the purpose of prosecution; (c) in any other case, a State Party shall consider whether it can, in accordance with its legal procedures, take steps to arrest and transfer the accused to the Court, or whether it should take steps to extradite the accused to a requesting State or refer the case to its competent authorities for the purpose of prosecution. 3. The transfer of an accused to the Court constitutes, as between States Parties which accept the jurisdiction of the Court with respect to the crime, sufficient compliance with a provision of any treaty requiring that a suspect be extradited or the case referred to the competent authorities of the requested State for the purpose of prosecution. 4. A State party which accepts the jurisdiction of the Court with respect to the crime shall, as far as possible, give priority to a request under paragraph 1 over requests for extradition from other States. 5. A State Party may delay complying with paragraph 2 if the accused is in its custody or control and is being proceeded against for a serious crime, or serving a sentence imposed by a court for a crime. It shall within 45 days of receiving the request inform the Registrar of the reasons for the delay. In such cases, the requested State:

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(a) may agree to the temporary transfer of the accused for the purpose of standing trial under this Statute; or

(c) shall comply with paragraph 2 after the prosecution has been completed or abandoned or the sentence has been served, as the case may be.

II. PROPOSALS

The title of the article should read:

Surrender of accused or convicted persons to the Court 112/

The Court may request the extradition of a fugitive to States Parties as regards offences specified in article [ ] when the Court has issued a warrant of arrest. * * *

A. Transmittal and purposes of request

1. The Registrar shall transmit to any State on the territory of which the accused or convicted person may be found the warrant for the arrest and [a request for the] transfer [surrender] of such person issued under article 28, or in order to enforce the sentence of the convicted person, [along with the supporting material outlined in article 53 bial and shall request the cooperation of that State in the arrest and surrender of such person. 113/

The request for transfer, in written form and signed by the Prosecutor, shall be addressed by the Registrar to the competent authority of the requested State designated in accordance with article 62. 114/

ill/ This article will require especial consideration of the principle of complementarity, and specific drafting to reinforce the principle may be necessary. It is conceivable that convicted persons may be at large for some reason. It may therefor be necessary to provide for the arrest of such convicted persons. Although this aspect is dealt with under this article, it has been pointed out that it may be more appropriate to deal with this aspect under article 59 on enforcement of sentences.

113/ See article 53 (4) of both the ILC and the Siracusa drafts. lit/ Article 62 deals with the designation of a competent national authority.

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States parties shall respond without delay to any request for cooperation submitted by the Court under this Statute. They may request the Court to provide any additional information which they consider necessary to enable them to respond to the request.

The competent authority of the requested State and the Registrar of the Court shall agree on the date and modalities of the transfer of the person concerned to the seat of the Court or to the place which it specifies.

All the documents to be provided by the Court to the State Party shall be ! accompanied by a duly certified translation in the language of the party. !

B. Limitations on obligation/Basis for denial us/ 2. A requested State Party on whose territory the accused or convicted person is found 116/ shall, subject to paragraphs 8 and 9, take immediate steps to ! arrest and surrender a convicted person to the authorities identified in the i warrant of arrest in the case of a convicted person, 117 / or arrest and ! surrender an accused to the Court if the case is covered by. !

(a) articles 20 (a) to (d) [(a) or Article 23 (1)]; lie/ or

(b) if the requested state has accepted the jurisdiction of the Court with respect to the crime in question.

115/ The refusal to transfer on the grounds that a State exercises its jurisdiction is neither a denial nor a limitation on the obligation to transfer but a question of complementarity to be addressed in the appropriate section of the draft Statute. 116/ Apart from stating the obvious fact that, since the request will in all probability be transmitted to more than one State, the State on whose territory the person is found should arrest and surrender that person, the text basically accords with article 53 (2) of the Siracusa draft. See, however, article 53 (2) of the ILC draft. 117/ It is conceivable that a convicted fugitive should be surrendered to the authorities of the State which has been designated as the administering State, and that warrant would provide for this. US./ The first option would apply if the Court was given inherent jurisdiction over the core crimes.

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The extradition legislation of a requested State shall be opposable by that State to any request for transfer of the accused or the suapect to the Court.

When ratifying this Statute, States parties shall inform the Secretary- General of the United Nations of the conditions under which they would refuse extradition and shall specify elements which must be included in a written request for extradition. States Parties shall not refuse extradition for reasons other than those indicated.

The following do not constitute conditions under which a requested State may refuse extradition, irrespective of paragraph 4 :

(a) The act constituting the offence for which extradition is requested does not constitute an offence under the laws, regulations or ordinances of the requested State;

(b) The requested State does not deem it appropriate to honour the request;

[(c) The requested State has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing the person concerned on account of that person's race, religion, nationality, ethnic origin, political opinions, sex or status, or that that person's position may be prejudiced for any of those reasons;]

[ (d) The requested State has grounds for believing that the person whose extradition is requested has been or would be subjected in the Court to torture or cruel, inhuman or degrading -treatment or punishment or if that person has not received or would not receive the minimum guarantees in a criminal proceeding, as contained in the International Covenant on Civil and Political Rights, article 14.]

All the offences specified in article [ ] shall not be deemed to be offences of a political nature as regards extradition under this Statute.

States Parties shall not be bound to extradite their own nationals, but may extradite them at their discretion.

Where the law of the requested State Party so requires, the accused person shall be entitled to challenge the request for arrest and surrender in the court of the requested State Party on the ground that the evidence submitted in support of the request would not be sufficient to commit him to trial for such an offence in a court of the requested State.

[A requested State Party may deny a request for arrest or surrender if compliance with the request would put it in breach of an existing [international

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law] [treaty] obligation undertaken to another [State] [non-State party] . ]

C. Competing [parallel! requests from the Court and Statefs)

3. The requested State Party, if it is a party to the treaty covered by article 20 (e) and has accepted the jurisdiction of the Court, shall give priority to surrender the accused to the Court over requests for extradition from other States.

[3. If the requested State also receives a request from a State for the extradition of the same person, either for the same offence or for a different offence for which the Court is seeking the person's surrender, the appropriate authority of the requested State shall determine whether to surrender the person to the Court or to extradite the person to the State. In making its decision the requested State shall consider all relevant factors, including but not limited to

(a) whether the extradition request was made pursuant to a treaty;

(b) if the offences are different, the nature and gravity of the offences,·

(c) the interests of the State requesting extradition, including, where relevant, whether the offence was committed in its territory and the nationality of the victims of the offence;

(d) the possibility of subsequent surrender or extradition between the Court and the State requesting extradition; and

(e) the chronological order in which the requests were received.

3 bis. The requested State may not, however, deny a request for the surrender made under this article in deference to another State's request for extradition of the same person for the same offence, if the State requesting extradition is a State party, and the Court has ruled the case before it admissible, and its decision took into consideration the proceedings in that State which gave rise to its extradition request.] 120/

1. The States Parties shall undertake to give priority to requests for transfer submitted by the Court over requests for extradition submitted by other States Parties.

119/ Consideration should be given to the relationship between the obligations of States Parties to cooperate with the Court and their other existing but inconsistent international law obligations, e.g. arising from bilateral extradition treaties, the 1961 Vienna Convention on Diplomatic Relations, etc. See footnote 107 above. 1207 This issue may be considered as part of the wider question of whether a State Party can rely on an existing but inconsistent international law obligation to deny such a request. See footnote 107. -267- ICC-02/04-14-AnxA 13-02-2007 157/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 157/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

2. If the State Party to which the request for transfer is addressed has also received a request for extradition from a State Party to which it is bound by an extradition agreement, it ehall rule on that request for extradition, unless the Court, pursuant to article 39, has already rejected the challenge to submission to the Court made by the State requesting the extradition.

3. The State requesting the extradition may, if it has not already contested submission to the Court pursuant to article 39, request the Court to withdraw its request for transfer, on the basis of the principle of complementarity stated in the preamble to this Statute. The person named in the request for transfer may, under the same conditions, challenge submission to the Court and seek the withdrawal of the request for transfer.

Taking into account the facts and the identity of the persons named in the request for transfer, the Court shall rule in accordance with article 35, paragraphs (a) and (c), and article 39, paragraphs 3, 5, 6 and 7. The warrants issued earlier by the Court shall remain in force and the States parties shall be bound to cooperate.

4. If the State detaining the person concerned rejects the request for extradition, it shall so inform the Court without delay. The request referred to in paragraph 3 of this article shall then cease to have effect, and the Court shall note this fact in a decision.

5. If the Court decides not to grant the request submitted under paragraph 3 of this article, the Registrar shall immediately so inform the requested State, and the demand for extradition submitted by the requesting State shall cease to have effect. The person concerned shall then be transferred to the Court as soon as possible.

6. If the State detaining the person concerned decides to grant the request for extradition before the Court has finally ruled on the request submitted under paragraph 3 of this article, it may either keep the person concerned at its disposal or transfer him to the Court, in which case it shall notify its decision in favour of extradition to the requesting State and to the Court.

If the Court subsequently accepts the request submitted by the requesting State in accordance with paragraph 3 of this article and if the person concerned has been transferred to it pursuant to the preceding paragraph, it shall order the return of the person concerned to that State.

For tha purposes of prosecution the requesting State shall be bound by the decision on extradition taken by the requested State and by all other provisions of the extradition treaty between the two States. The duration of the person's detention in the requested State and at the seat of the Court or in the place which it specifies shall be deducted in full from any sentence imposed in that requesting state.

7. If the State Party requested to make a transfer to the Court has also received a request for extradition from a State non-party but one to which it is bound by an extradition agreement, it shall rule as in the case of concurrent requests for extradition, taking into account the following circumstances:

The respective dates of the requests;

The respective seriousness of the offences in question, with priority given to the request based on the most serious offences;

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The possibility that an agreement may be concluded between the State non-party requesting the extradition and the Court providing either that, following hie trial by that State or after he hae served his sentence, the person concerned may be transferred to the Court, or that the Court agrees to return him temporarily to the State requesting his extradition after having tried him, in order that that State may try him in turn or have him serve his sentence.

D. Extradite or prosecute obligation

4. In the case of a crime to which article 20 (e) applies, the requested State Party, if it is a party to the treaty in question but has not accepted the Court's jurisdiction with respect to that crime shall, where it decides not to surrender the accused to the Court, promptly take all necessary steps to extradite the accused to a State having requested extradition or refer the case to its competent authorities for the purpose of prosecution. 121/

If the requested State refuses to carry out a transfer, it shall, at the request of the Court, submit the case to the competent authorities in order that judicial proceedings may be instituted if grounds exist.

I If a State Party decides not to extradite a fugitive who is present in its [ territory, it shall submit, without undue delay, the case to its competent ι authority for the purpose of prosecution, through proceedings in accordance with its national laws. This provision shall not apply in the following cases: I (a) if it is deemed that under the laws, regulations or ordinances of the requested State it would be impossible to impose or to execute punishment upon the fugitive; if the act constituting the offence for which extradition is requested was committed in the territory of the requested State; or if the trial therefore would be held in a court of requested State;

(b) if there is no probable cause to suspect that the fugitive has committed an act which constitutes an offence for which extradition is requested.

5. In any other case, the requested State Party shall [consider whether it can] , Î22./ in accordance with its legal procedures, take steps to arrest and surrender the accused to the Court, or [whether it should] take steps to extradite the accused to a State having requested extradition or refer the case to its competent authorities for the purpose of prosecution. J.23/

It is conceivable that a convicted fugitive should be surrendered to the authorities of the State which has been designated as the administering State, and that the warrant would provide for this. Should there be a discretion in this regard? If not, then both the phrases in square brackets in this provision could be deleted. See ILC draft article 53 (2) (c) and Siracusa draft article 53 (5) . -269- ICC-02/04-14-AnxA 13-02-2007 159/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 159/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

5 bis. A requested State Party may not deny a request for surrender on the grounds that

(a) the person sought is a national of the requested State;

(b) the offence for which the person is being sought is a political or military offence [or an offence connected to such offences]; 124/ or

5 ter. A requested State may deny a request for surrender if the person is being proceeded against or has been proceeded against, convicted or acquitted in the requested State or another State for the offence for which his surrender is sought, unless the Court has declared the case before it to be admissible under article 35 or 42, notwithstanding such proceedings or such prior conviction or acquittal.

6. The surrender of an accused to the Court constitutes, as between States Parties which accept the jurisdiction of the Court with respect to the crime in question, compliance with a provision of any treaty requiring that a suspect be extradited or the case be referred to the competent authorities of the requested State for the purpose of prosecution. 125/

7. A State Party which has accepted the jurisdiction of the Court with respect to the crime in question shall, as far as possible, give priority to a request under paragraph 1 over requests for extradition from other States. 126/

B. Delayed or temporary surrender of persons in custody for different offence

8. The requested 127/ State Party may delay complying with a request under paragraphs 2 to 4 if the accused or convicted person is in its custody or control and is being proceeded against for a serious crime, or serving a

124/ The separation of provisions dealing with mutual assistance and with arrest and transfer necessitates the insertion in this article of a provision dealing with the grounds on which the request for arrest and surrender may be refused. Further grounds such as double criminality and public order should also be inserted. 1257 This specific language of such a provision would need to reflect whether, in the final analysis, such situations are governed as matters of admissibility, under a separate non bis in idem provision, or a combination of the two. The notion here is to preserve the traditional non bis in idem concept, save where the Court, in accordance with the Statute, has specifically ruled that the exercise of its jurisdiction over the case is proper notwithstanding the prior proceedings in a State. 1267 See Siracusa draft article 53 (7) and ILC draft article 53 (4). 127/ Siracusa draft article 53 (8). If "requested" is retained here, it should also be inserted at the beginning of the next paragraph for the sake of uniformity. It would, however, appear to be redundant owing to the specific reference to "request" in both provisions and could therefore be deleted. -270- ICC-02/04-14-AnxA 13-02-2007 160/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 160/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

sentence imposed by [a/the] 128/ Court for a crime. It shall within [28 days] of receiving the request inform the Registrar of the reasons for the delay. In such case it:

(a) may agree to the temporary surrender of the accused for the purpose of standing trial under this Statute; or

(b) shall comply with the request under paragraphs 2 to 4 after the prosecution has been completed or abandoned or the sentence has been served, as the case may be. 129/

The requested State may, with the consent of the Preliminary Investigations Chamber, which shall rule after having heard the Prosecutor, defer the transfer of the person in question if he is being prosecuted or serving a sentence in respect of facts different from those for which he is being sought.

If the requested State does not request deferment of the transfer or if such deferment is denied by the Preliminary Investigations Chamber, that State may request the Preliminary Investigations Chamber to return the person concerned after completion of his trial by the Court, in order that he may be prosecuted or serve his sentence in respect of facts different from those for which he has finally been sentenced by the Court.

F. Application to the Court to set aside surrender request

9. A [requested] State Party may, within [28 days] of receiving a request under paragraph \, file a written request with the Registrar requesting the Court to set aside the request on specified grounds including those mentioned in articles 35 and 42. Pending a decision of the Court on the application, the State concerned may delay complying with paragraphs 2 to 4 but shall take any provisional measures necessary to ensure that the accused or convicted person remains in its custody or control. 1307

Q. Provisions of evidence irrespective of surrender

10. To the extent permitted under the law of the requested State and subject to the rights of third parties, all [property] found in the requested State that has been acquired as a result of the alleged offence or that may be required as evidence shall, upon request, be transmitted to the Court if surrender is granted, even if the surrender cannot be carried out, on conditions to be determined by the Court. 131/

128/ Article S3 (8) of the Siracusa draft contains an error here: either "a" or "the" depending on whether any court, or specifically the International Criminal Court is being referred to. 129/ See Siracusa draft article 53 (8). 130/ See ILC draft article 53 (6) and Siracusa draft article 53 (9). 131/ Siracusa draft article 53 (10). Some delegations questioned the utility of this paragraph. -271- ICC-02/04-14-AnxA 13-02-2007 161/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 161/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

H. Transit of surrendered person

11. 132/ (a) A State Party shall authorize transportation through its territory of a person being surrendered to the Court by another State. Ά request by the Court for transit shall be transmitted through diplomatic channels, unless otherwise agreed. The request for transit shall contain a description of the person being transported and a brief statement of the facts of the case. Λ person in transit shall be detained in custody during the period of transit.

(b) No authorization is required where air transportation is used and no landing is scheduled on the territory of the State of transit. If an unscheduled landing occurs on the territory of the State of transit, it may require a request for transit as provided for in subparagraph (a). The State of transit shall detain the person to be transported until the request for transit is received and the transit is effected, so long as the request is received within 96 hours of the unscheduled landing.

1. Transit through the territory of one of the States Parties shall be granted on application to the competent authority designated in accordance with article 62.

2. The transit of a national of the transit State may be refused.

3. Subject to the provisions of paragraph 4 of this article, the documents referred to in article 66, paragraphs 3 (a) and 4 (a) and (b), shall be produced.

4. If air transport is used, the following provisions shall apply:

(a) when no intermediate landing is envisaged, the Court shall notify the State over whose territory the aircraft will fly and certify the existence of one of the documents referred to in article 66, paragraph 4;

(b) in the event of an unscheduled landing or when a landing is envisaged, the Court shall submit a regular transit request as provided for in paragraph 3 of this article.

5. The transit of the person concerned shall not be effected through a territory where there are grounds for believing that his life or liberty may be threatened by reason of his race, religion, nationality or political opinions.

States Parties shall give approval for the transportation of the persons to the Court through their territories in accordance with their national laws.

132/ The need for a transit provision has been identified, It is suggested that this provision should form a separate article. -272- ICC-02/04-14-AnxA 13-02-2007 162/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 162/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

Article 53 bis 133/ Form and content of requests for arrest or surrender ! 1. A request for arrest or surrender [duly signed by the Prosecutor] shall: (a) be made by letter, fax, e-mail or any medium capable of delivering a written record (provided that a request shall be confirmed through the diplomatic channel): (b) contain or be supported by: i (i) information describing the person sought, sufficient to identify the ! person and information as to that person's probable location; (ii) in the case of a request for pre-indictment arrest: j a. a copy of the warrant for arrest; ii b. a statement of the reasons to believe the suspect may have committed a crime within the jurisdiction of the Court and that ; the Prosecutor expects to seek an indictment within (90) days; c. a brief summary of the facts of the case; d. a statement as to why pre-indictment arrest is urgent and i necessary. (iii) in the case of a request for post-indictment arrest and surrender of a person not yet convicted: i I a. a copy of the warrant of arrest and indictment; b. such information, documents or statements outlining the facts of the case as may be required by the law of the Requested State. (iv) in the case of a request for the arrest and surrender of a person already convicted: a. a copy of any warrant of arrest for that person; ' b. a copy of the judgement of conviction; ι c. information to demonstrate that the person sought is the person referred to in the judgement of conviction; , d. (if the person sought has been sentenced) a copy of the sentence imposed and a statement of any time already served and that remaining. 2. Where the requested State Party considers the information provided insufficient to allow it to comply with the request it may seek, without delay, additional information.

This article has no equivalent in the draft proposed by the International Law Commission. -273- ICC-02/04-14-AnxA 13-02-2007 163/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 163/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

Article 53 ter 134/

Provisional arrest

1. In case of urgency, the Court may request the provisional arrest of the person sought pending presentation of the request for surrender and supporting documents under paragraph 53 bis.

2. The request for provisional arrest shall contain:

(a) a description of the person sought and information regarding the probable location of such person,·

(b) a brief statement of the essential facts of the case, including, if possible, the time and location of the offence;

(c) a statement of the existence of a warrant of arrest or a judgement of conviction against the person sought, and a description of the specific offence or offences with which the person has been charged or for which he has been convi c t ed; and

(d) a statement that a request for surrender of the person sought will follow.

3. A person who is provisionally arrested may be discharged from custody upon the expiration of [60] days from the date of provisional arrest if the Requested State has not received the formal request for surrender and the supporting documents specified under paragraph [ ].

4. The fact that the person sought has been discharged from custody pursuant to paragraph 3 shall not prejudice the subsequent rearrest and surrender of that person if the request for surrender and supporting documents are delivered at a later date.

134/ This article has no equivalent in the draft prepared by the International Law Commission.

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Article 54

Obligation to extradite or prosecute

I. ILC DRAFT

In a case of a crime referred to in article 20 (e), a custodial State party to this Statute which is a party to the treaty in question but which has not accepted the Court's jurisdiction with respect to the crime for the purposes of article 21 (1) (b) (i) shall either take all necessary steps to extradite the suspect to a requesting State for the purpose of prosecution or refer the case to its competent authorities for that purpose.

II. PROPOSALS j

[Note. Owing to the insertion of article 53 (4), (5) and (6) , the need for article 54 of the ILC draft falls away. The provisions of the proposed j article 54 (Judicial assistance) of the Siracusa draft have been absorbed into ' article 51 and therefore do not require incorporation as a separate ! article. 135/1 ;

135/ This provision has a tight connection with the item under article 59 dealing with the recognition of the Court's sentences.

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Article 55

Rule of speciality

I. ILC DRAFT

1. A person transferred to the Court under article 53 shall not be subject to prosecution or punishment for any crime other than that for which the person was transferred.

3. The Court may request the State concerned to waive the requirements of paragraphs l or 2, for the reasons and purposes specified in the request.

II. PROPOSALS

A. Limit on other proceedings against surrendered person 1. A person surrendered to the Court under Article 53 shall not be proceeded against, sentenced or detained for any crime other than that for which the person has been surrendered. 136/ * * *

1. A person extradited under this Statute shall not, except under any one of the following circumstances, be detained, prosecuted, tried or punished for an offence other than that for which extradition was effected: (a) when a person extradited commits an offence after extradition; (b) when a requested State has consented to his detention, prosecution, trial or punishment for an offence other than that for which the extradition has been effected.

B. Limit on other uses cf evidence 2. A State providing evidence under this Part may require that the evidence not be used for any purpose other than that for which it was provided unless

j.36/ See article 55 (1) of both the ILC draft and the Siracusa draft. This wording is based on the more comprehensive formulation of the Siracusa draft.

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this is necessary to preserve a right of the accused under article 41 (2). 137/

2. Evidence provided by States Parties under this Statute shall not be used in connection with any offence other than that which is mentioned in the request for assistance ae being a subject of investigation unless the requested State offers its consent.

C. Waiver of rule by requested State

3. The Court may request the state concerned to waive the requirements of paragraphs 1 or 2, for the reasons and purposes to be specified in the request. In a case of paragraph 1, the request shall be accompanied by an additional warrant of arrest and by a legal record of any statement made by the accused with respect to the offence.

HI/ The Preparatory Committee expressed general satisfaction with the limited rule contained in article 55 (2) of the ILC draft. The proposed wording reflects the wording of article 55 (2) of the Siracusa draft.

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Article 56

Cooperation with State's not parties to this Statute

I. ILC DRAFT

States not parties to this Statute may assist in relation to the matters referred to in this Part on the basis of comity, a unilateral declaration, an ad hoc arrangement or other agreement with the Court.

II. PROPOSALS

[Kote. This provision has been inserted as subparagraph 4 of the proposed article X of this Part, obviating the need for its inclusion as a separate article.]

Certain delegations suggested that there should be a separate provision for cooperation with non-State Parties.

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Article 57

Communications and documentation

I. ILC DRAFT

2. When appropriate, communications may also be made through the International Criminal Police Organization.

3. A request under this Part shall include the following, as applicable:

(a) a brief statement of the purpose of the request and of the assistance sought, including the legal basis and grounds for the request;

(b) information concerning the person who is the subject of the request on the evidence sought, in sufficient detail to enable identification;

(d) information concerning the complaint or charge to which the request relates and of the basis for the Court's jurisdiction.

4. A requested State which considers the information provided insufficient to enable the request to be complied with may seek further particulars.

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II. PROPOSALS j ! The title of the article should be changed to read:

Form and contenta of the request 13B/ [for assistance! 139/ 1. Requests for judicial (mutual) assistance shall: 140/

A. Assistance The request for judicial assistance, in written form and signed by the Prosecutor, shall be addressed by the Registrar to the competent authority of the requested State designated in accordance with article 62. The request referred to in paragraph 1 of this article shall be accompanied by the following information:

(a) A statement of the facts in respect of which the request for judicial assistance is made, the date and place of their commission and their legal characterization in accordance with articles 27 to 32;

(b) The identity, and if possible, the address of any person named in the request;

(c) The fullest possible details of the requested assistance. The documents produced in response to the request for judicial assistance shall be addressed by States to the Registrar of the Court. The Court may request the transmission of the original copies of these documents or of any other documents. In such cases the requested State may, with the consent of the Preliminary Investigations Chamber, defer the dispatch of these documents for as long as is necessary for the conduct of an investigation or legal proceeding in its territory. If the original copies of the documents are transmitted to the Court, they shall be returned as soon as possible to the State which transmitted them, if that State so requests.

13.8/ The deletion of article 52 has been proposed so that the matters previously dealt with as "provisional measures11 may be dealt with in articles 28 and 29 as pre-indictment and post indictment arrest. The present article could then be inserted as article 52. If this is done it may be necessary to let the provisions inserted as article 52 deal with the form and content for requests for mutual assistance. A separate provision would then need to be inserted after article 53 to deal with the form and content of a request for arrest and surrender of persons. Ü2/ In this report article 57 embodies only those proposals that bear on the form that requests for judicial assistance should take and not requests for transfer. 140/ Siracusa draft article 57 (i), elaborates on ILC draft article 57 (1) and (2). The Preparatory Committee was generally satisfied with the ILC draft but indicated that article 57 (3) and (4) could be further refined. -280- ICC-02/04-14-AnxA 13-02-2007 170/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 170/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

if the Court does not make any request under the preceding paragraph, the requested State may transmit merely certified copies or photocopies of the documents.

B. Transfer

The request for transfer, accompanied by the documents specified in paragraphs 3 and 4 of this article, may also be addressed to all the States Parties in whose territory the suspect or accused may be found, as well as to all the States non-parties willing to comply with the request. j l In all cases the request for transfer shall be accompanied by:

(a) A statement of the facts in respect of which the transfer is requested, the date and place of their commission and their legal I characterization in accordance with articles 27 to 32; '

(b) The fullest possible description of the suspect or accused and any other information which may help to determine hie identity,·

The request for transfer shall also be accompanied by: j

(a) Either the warrant for arrest and transfer, together with the indictment, in an original copy or a copy certified by the Registrar, if the \ request for transfer is made after the filing of the indictment; ;

(b) Either the warrant for arrest and detention, in the original copy or a copy certified by the Registrar, if the request for transfer is made before the filing of the indictment, article 58, paragraph 2, being then applicable. i

(a) be made by letter, fax, e-mail or any medium capable of delivering a written record[, provided that a request shall be confirmed through the diplomatic channel];

(b) contain the following, as applicable:

(i) a brief statement of the purpose of the request and the assistance sought including the legal basis [and grounds] for the request;

(ii) as much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided; 141/

(iii) a brief description of the [essential] facts underlying the request including a statement explaining the nexus between the assistance sought and the matter under investigation or subject to prosecution;

At the Preparatory Committee it was proposed that the "identity and location of witnesses" should also be included in this list. This provision appears to be wide enough to encompass witnesses as well. -281- ICC-02/04-14-AnxA 13-02-2007 171/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 171/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

(iv) information 142/ concerning the complaint or charge to which the request relates and of the basis of the Court's jurisdiction;

(v) such information as may be required under the law of the requested State in order to execute the request;

(vi) any other information relevant to the assistance being sought; 143/ and

(c) where applicable and unless otherwise agreed, as soon as practicable be provided' to a requested State in the form of a duly certified translation in the official language of that state. 14V

2. Communications relating to a request under this Part shall be between the Registrar, or Prosecutor acting under article 26, and the national authority designated by each State Party for this purpose, 145/ and where appropriate may be made through the International Criminal Police Organization. 146/

Transmittal of Requests. Requests for cooperation may be made by the Court [or Prosecutor], and shall be transmitted through diplomatic channels, unless the Court and the requested State agree on another mode for transmitting requests.

"Information" includes the charge and any relevant evidence.

143/ This catch-all provision derives from a proposal during the discussions of the Preparatory Committee.

144/ To provide for such translations would conceivably facilitate the procedures to be followed in the requested State. The provision as drafted provides for later transmission of the translation. This could avoid delays in urgent situations where the immediate preparation in a specific language could take time.

IAS/ Siracusa draft article 57 (1), with the added provision for requests by the prosecutor during the investigative phase. ILC draft article 57 (1) refers only to «between the competent national authority and the Registrar". The Preparatory Committee had some divergence of views on this aspect. The proposed wording is intended to be a compromise that could accommodate all views.

146 / ILC draft article 57 (2), Siracusa draft article 57 (l) (2). This provision has, in this draft, been linked to the provision contained in paragraph 1 of both the ILC and the Siracusa drafts.

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All the documents to be provided by the Court to a State Party shall be accompanied by a duly certified translation in the language of the Party.

3. Where the requested State Party considers the information provided I insufficient to allow it to comply with the request it may seek, without delay, | additional information. 147/

4. Provided that the request contains sufficient information to meet the requirements of the relevant law of the administering party, the latter shall ι execute the request as expeditiously as possible and transmit the results to the requesting party. US./

(a) The requested State shall promptly execute the request and transmit the result to the Court [or Prosecutor]; (b) The requested State shall, to the extent permitted by its law, execute the request in accordance with any procedures specified in the request and permit persons specified in the request to be present at or assist in execution of the request.

Article 57 bis Execution of recruests 149/ 1. Requests for assistance shall be executed as expeditiously as possible and the results transmitted to the requesting party. 2. Requests for assistance shall be executed in accordance with the law of the requested State except that the requested State shall execute the request in the manner specified in the request, including following any procedures outlined therein or permitting persons specified in the request to be present at and assist in the execution process; unless prohibited by the law of that State.

3. The ordinary costs for execution of requests shall be borne by the requested State except for the following which should be borne by the requesting party:

147/ Siracusa draft article 57 (2), which elaborates on ILC draft article 57 (4). 143/ This provision is drafted in reciprocal terms to allow for the Court to be subject to the same obligation if requested to assist a State. 149/ This article will require some alteration if the decision is taken to make the obligation to assist reciprocal. -283- ICC-02/04-14-AnxA 13-02-2007 173/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 173/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

(a) Costs associated to the travel of witnesses or the surrender of an accused or convicted person;

(b) Costs of translation, interpretation and transcription. Where the execution of a request will result in extraordinary costs, there should be consultations to determine how those costs will be met.

λ. Assistance Subject to the provisions of paragraph 2 of this article, the procedure by which a State Party discharges its obligation to cooperate shall be governed by its internal law. The Prosecutor or members of the procuracy may assist with the execution of the request for judicial assistance by the authorities of the requested State. The requested State may authorize them to carry out certain inquiries in its territory. If the competent authorities of the requested State are no longer able, owing to their lack of organization, to respond to requests for judicial assistance submitted by the Prosecutor, he may request from the Preliminary Investigations Chamber authorization to conduct the necessary inquiries directly in the territory of the requested State. The requested State shall be given prior notification and may submit comments to the Preliminary Investigations Chamber, in particular for the purpose of obtaining an extension of the period for execution of the request for judicial assistance. Witnesses or experts may not be compelled to testify at the seat of the Court. If they do not wish to travel to the seat of the Court, their testimony shall be taken in the country in which they reside or in some other place which they may determine by common accord with the Court. In order to guarantee the safety of witnesses and experts, any means of communication may be used in order to take their testimony while preserving their anonymity. No witness or expert who appears before the Court may be prosecuted, detained or submitted to any other restriction of personal freedom by the Court. Notwithstanding the provisions of the second and third sentences of paragraph 1 of this article, any detainee whose appearance as a witness or for the purposes of confrontation is requested by the Court shall, if necessary, be transferred temporarily to the seat of the Court or to the place which it specifies.

If this person must pass in transit through the territory of another State party, the Registrar of the Court shall proceed in accordance with article 68. A person transferred in this manner shall remain in detention for as long as is necessary for his testimony or confrontation, unless the State in whose territory he was detained requests his release. In such circumstances the Court

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ehall grant the request as soon as possible, and the person may not be prosecuted, detained or subjected to any other restriction of his personal freedom by the Court.

If the State which has transferred the person concerned to the seat of the Court or to the place which it specifies does not request his release, he shall be transferred back to that State as soon as possible after his testimony or i confrontation.

I B. Transfer i The competent authority of the requested State and the Registrar of the Court shall agree on the date and modalities of the transfer of the person concerned to the seat of the Court or to the place which it specifies. ! The duration of the person's detention in the territory of the requested ! State shall be communicated to the Court and deducted in full from any sentence ! imposed by the Court. !

On the completion of the proceedings or after the person has served his : sentence, he may be transferred back to the Court or to the place which it ' specifies, in order to serve the sentence handed down by the Court. ISO/

Articles found in the possession of the suspect or accused shall be handed over to the Court, at its request, at the time of his transfer. This may be done even if the transfer cannot take place owing to the death or escape of the individual sought. The Court shall return such articles free of charge as soon as possible after the trial, if they are the property of a third party or the requested State.

C. Costs

The costs of the transfer of a suspect to the seat of the Court or to the place which it specifies shall be borne by the requested State.

The costs of executing requests for judicial assistance in the territory of States parties shall be borne by them, except with respect to the travel and subsistence costs of the Prosecutor, members of his office or any other member of the Court.

The view was expressed that this provision required further clarification.

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The costs of transmitting documents or papers, including urgent transmission, to the seat of the Court or to the place which it specifies shall be borne by the States parties. The costs of transferring to the seat of the Court, or to the place which it specifies, detainees whose appearance is requested by the Court as witnesses or for the purposes of confrontation shall be borne by the States parties. The costs of the travel of witnesses or experts to the seat of the Court or to the place which it specifies and the costs of their subsistence shall be borne by the budget of the Court. The costs of any expert opinion or report requested by the Court shall be borne by the budget of the Court.

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A/AC.249/1997/WG.4/CRP.10 8 September 1997

ORIGINAL: ENGLISH

PREPARATORY COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 4-15 August 1997 Working Group on Procedural Matters

REVISED ABBREVIATED COMPILATION

Article 38: Arrest'

1. At any time after an investigation has been initiated, the Presidency [Pre-trial chamber] may at the request of the Prosecutor issue a warrant for the provisional [pre-indictment] arrest of a suspect [before indictment] if :

(a) there is probable cause [serious reason] [reasonable ground·] [sufficient evidence that could justify the conviction of the suspect with respect to a crime within the jurisdiction of the Court] to believe that the suspect may have committed a crime within the jurisdiction of the Court; and

(b) the suspect may not be available to stand trial unless provisionally arrested [before indictment]. [unless arrested before indictment, the suspect may] [there are serious reasons for believing that talcing the suspect into custody is the only way to ensure that the suspect does not] :

[(i) [flee] [fail to appear for trial];

[(ii) [tamper with evidence;}

[(iii) intimidate witnesses or victime;]

' The text between square brackets was put forward by a delegation in order to simplify the existing text and to show more clearly which are the various options. The proposal does not constitute as such a new substantive proposal. Some delegations indicated that this article had implications for part 7 of the Statute.

Other provisions dealing with international cooperation aspects of arrest will be considered in the context of State cooperation with the Court.

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[(iv) engage in collusion with accomplie··;]

[(v) [continu· to] commit a crime.]

C(vi) b· harmed.]] t; or

[(c) there i· probable eau·· to beliave that th· auapect or the indicted parson [accused] will diarupt the investigation, auch aa by intimidating witne···· or destroying evidenceι or

(d) there ia probable cauaa to believe that the auepact or the indicted peraon [accuaed] will continue the criminal activity.]

[The Pre-Trial Chamber may alao iaaue a warrant of judicial supervision in order to place a parson under restriction· of liberty other than arreat.]

[No parson shall be subjected to arbitrary arreat or detention. Mor shall any parson be deprived of hia liberty except on auch ground· and in accordance with such procedure· aa are eatabliahed by the rule· of the Court.]

[1 bia. The Proaecutor ahall tranamit the warrant to the State where the suspect [ia located] [may ba found], along with a request for the arreat of the auapact and a atatament that the Proaecutor axpecta to file an indictment and make a request for tranafer under Part 7 within [30] [60] [90] day·.]

[Option; move paragraph 28 (1 bia) to become new paragraph 28 (4), and amend it to read aa followa:

The Prosecutor ahall tranamit the warrant to the State where the peraon i· located, along with a requeat for the proviaional arreat, or arreat and transfer, of the peraon under Part 7.]

[l ter, in the caae where a suspect haa been arreated before indictment, if before the expiry of [30][60][90] [daya] [a reasonable time] a decision ia taken by the Proaecutor not to indict the auapect or the [Preaidency] [Pre-Trial Chamber] decidea not to confirm the indictment, the Proaecutor ahall immediately adviae the cuatodial State of that fact [and the custodial State ahall take atapa to have the auapect immediately releaaed from cuatody or any condition· of bail.]1]

[Option: exchange paragraphe 28 (l ter) and 28 (2).]

2. A suspect who has been provisionally arrested [before indictment] is entitled to release from arrest [The warrant for the proviaional arreat [and detention] issued under paragraph [1] shall be deemed to have lapsed and the request for the arrest of a suspect under paragraph [l bis/1 ter] shall be deemed to have been withdrawn by the Court] if [a requeat for tranafer has been received] the indictment has not been confirmed [a poet-indictment warrant ha· not been served] within [30][60] 90 daya [a reasonable time] of the arrest, or

'There waa a suggestion to move this clause to part 7 of the Statute. ICC-02/04-14-AnxA 13-02-2007 178/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 178/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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[under exceptional circumstance·] such longer [reasonable] time [not longer than 90 day·] as the Presidency [Pre-Trial Chanber] may allow [to a maximum of 90 day·]. [The release of the person shall not preclude that person'· rearrest should a [request for transfer] [indictment and warrant] [post indictment warrant] be subsequently received.]

3. [In the case where no pre-indictment warrant has been obtained,] [Prior to the confirmation hearing,] As soon as practicable after the confirmation of the indictment, the Prosecutor shall seek from the Presidency [Pre-Trial Chamber] a [post-indictment] warrant for the arrest and transfer of the accused. The Presidency [Pre-Trial Chamber] shall issue such a warrant unless it is satisfied that:

[Option:

[Upon confirmation of the indictment, a warrant for the arrest of the accused shall be issued by the Pre-Trial Chamber, unless, having heard the views of the Prosecutor, it is satisfied that:]

(a) the accused will voluntarily appear for trial [and none of the factors in paragraph 1 (b) (ii) through (b) O are present] [the preconditions referred to in paragraph 1 (b), (c) and (d) are not fulfilled]; or

(b) there are special circumstances making it unnecessary for the time being to issue the warrant.

[Pre-indictment and post-indictment warrants may also be issued when the accused is a fugitive. In this case, the post-indictment warrant issued by the Pre-Trial Chamber shall have the effect of an international warrant and shall be disseminated by all appropriate mean·. When the accused is apprehended, the authorities shall proceed as provided for in Part 7.]

[A post-indictment warrant shall remain in effect until the date of the judgement. The effects of the warrant delivered by the Pre-Trial Chamber shall not be interrupted by the actions challenging the submission of cases to the Court.]

4. A person arrested shall be informed at the time of arrest of the reasons for the arrest and shall be promptly informed of any charges [and of his/her rights] . '

[5. The execution of a warrant for the arrest in the territory of a State Party shall be conducted in accordance with its national law. The State Party concerned shall cooperate in executing a warrant for the arrest as far as possible pursuant to the provisions of Part 7 of this Statute.

2 While the view was expressed that paragraph 4 should be retained, the view was also expressed that this provision related to notification and should be considered in connection with article 30. ICC-02/04-14-AnxA 13-02-2007 179/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 179/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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6. The Prosecutor may, however, execute a warrant for the arrest by himself/herself only in cases where the competent authority of the State Party concerned may not be available or may be ineffective. ICC-02/04-14-AnxA 13-02-2007 180/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 180/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

A/AC.249/1997/WG.5/CRP.1 25 November 1997

ORIGINAL: ENGLISH

PREPARATORY COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 1-12 December 1997 Working Group on International Cooperation and Judicial Assistance

ABBREVIATED COMPILATION OF PROPOSALS ON INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE (ILC DRAFT STATUTE PART 7) AND ENFORCEMENT (ILC DRAFT STATUTE PART 8)

This working paper is an abbreviated version of the compilation of proposals on international cooperation and matters contained in volume II of the report of the Preparatory Committee (pp. 245-297 and 307-323) (hereinafter referred to as Report Vol. II). It has been prepared by experts from many delegations, including the authors of some of the proposals concerned. These experts participated in the exercise, which was open to participation by all delegations to the Preparatory Committee, in their personal capacity.

This document is not a new proposal. It attempts to reflect all the proposals currently on the table in a manageable format. The purpose was not to exclude any proposals contained in Report Vol. II, except where the authors have expressly indicated the acceptability of an exclusion. Extensive use has been made of footnotes for purposes of highlighting issues and cross-referencing. The document is only intended as a tool to facilitate the discussions.

The order in which the articles have been arranged in this document differs from the order which appears in the ILC draft statute. This has been done for the sake of coherence, and cross-referencing has been done to facilitate comparison between this text and texts following the order of the ILC statute.

It is hoped that its reduced size and clearer content will assist in identifying and focusing on the issues contained in the Report Vol. II which need to be addressed at this stage of the work of the Preparatory Committee.

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PAP.T 7 . INTERNATIONAL COOPERATION [AND JUDICIAL AND LEGAL [MUTUAL·]1 ASSISTANCE]

ARTICLE 51

[GENERAL OBLIGATION TO COOPERATE]J

1. States Parties shall, in accordance with the provisions of this [Part] [Statute], [cooperate with] [afford the widest possible measure of assistance to]3 the Court* in its investigation and prosecution of crimes under this Statute.5 [A State Party shall not deny a request for cooperation except as specifically provided in this Part.]'

2. States Parties shall [respond to]7 [comply with] without [undue] delay' any request' for cooperation by the Court.

1 Not all assistance is necessarily provided by judicial authorities. There is also a question whether use of term "judicial" assistance would limit the ability of the Prosecutor to request assistance directly. There are, however, views that the assistance is directed at judicial proceedings before the Court. "Mutual" assistance, which is developing into a term of art, is more commonly used with respect to truly reciprocal cooperation between States (the issue of reciprocal cooperation by the ICC being itself a topic of discussion). 2 This provision reflects the need for a general statement of the obligation of States to cooperate with the Court.

3 Taken from the second formulation under "General obligation to cooperate" on p. 245 of the compilation.

* "Court" is understood to include its constituent organs, including the Prosecutor, as defined in article 5. * Derived from ILC article 51 (1). 6 The need for and the propriety of this sentence was questioned. It could be reconsidered in the light of the other provisions on cooperation. 7 Derived from ILC article 51 (3).

1 This is taken from the fourth formulation under the section on "General obligation to cooperate" on p 245 of the compilation and ILC article 51 (3). ' Does this include an order from the Court? ICC-02/04-14-AnxA 13-02-2007 182/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 182/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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ARTICLE 52

REQUESTS FOR COOPERATION: GENERAL PROVISIONS

1. Authorities competent to make and receive requests/Channels for communication of requests

(a) Requests for cooperation may be made by the Court te*-rrooeeutor] and shall be transmitted [by the Registrar]" _through diplomatic channels [or any other mode of transmitting such requesters may be [agreed by-the -Court-aneH— [designated at the time of ratification by] the requested Statéjj

(b) When appropriate, communications may also be made through the International Criminal Police Organization.11

(c) Each State Party shall designate at the time of ratification the national authority competent to receive requests for cooperation transmitted by the Court [or—Prosecutor] [Registrar] [and such authorities to which requests for cooperation may be submitted in cases of urgency].

(d) λ State Party may change its list of competent national authorities subsequent to ratification in accordance with the rules of procedure."

(e) [Replies from States Parties shall be transmitted to the Registrar [or Prosecutor]" [Court] as shall any accompanying documents or papers.]14

2. Language of requests15

Requests for cooperation shall be in [an official language of the requested State unless otherwise agreed]1' [one of the two working languages reflected in article 1Θ, in accordance with the choice made by that State upon ratification].

10 Derived from ILC article 51 (2). '·' Taken from ILC article 57 (2) (p. 279 of the compilation) . 12 This is derived from the second paragraph of p. 247 of the compilation. 11 Paragraph (a) of the third formulation on p. 283 of the compilation. 14 This proposal has been lifted from the third paragraph of the compilation on p. 247. Further issues are whether the Registrar is the appropriate entity; the channels of communication for replies in urgent cases; and the extent to which this provision should be contained in the Rules. l- This is largely taken from the third formulation under the section on "Language of requests and answers" on p. 248 of the compilation. " Taken from the first formulation under "Language of requests and answers" on p. 248 of the compilation. ICC-02/04-14-AnxA 13-02-2007 183/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 183/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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[All the docurencs to be provided by the Court to States Parties shall be accompanied by a duly certified translation in that language.]17

13 . Confidentiality of requests Court

The requested State shall keep confidential a request and any supporting documents, ex.:epc to the extent that the disclosure is necessary for execution of the request.

4. Cooperation by non-states Parties1'

The Cour- may call on any State not party to this Statute to provide assistance provided for in this part on the basis of comity, an ad hoc arrangement, or through entry into agreement with such State.1'

5. [States'.1 [States Parties'] failure to cooperate"

Where non-cooperation"- by {States] [States Parties] with requests by the Court prevents the Court from performing its duties under this Statute, the Court may [refer the non-cooperation to the Security Council22] [request the Security Council to take the measures necessary to enable the Court to exercise its jurisdiction] [in relation to States Parties and States not parties to this Statute"].

1 Taken from the second formulation under "Language of requests and answers" on p. 248 of the compilation. 18 Some proposals treat cooperation with non-States Parties as a separate article. The ILC draft and certain other proposals referred to the possibility of cooperation by non-States Parties. This text takes the approach of providing explicit authority for the Court to request cooperation, leaving the reaction of the requested State open. It also provides clear authority for the Court to enter into agreements on ad hoc arrangements with non-States Parties. 19 Issues to be considered are whether bases for cooperation by non-States Parties should be set out; whether further bases exist; and whether a provision for cooperation with international organizations should be included. " There has been little discussion of the failure of States Parties to Cooperate with the ICC. The possibility of referral to the Security Council, reflected abcve, has been the only approach in a written proposal to date. :i Should a distinction be drawn between a deliberate refusal to comply and the situation where the normal functions of a State have broken down? 2i Is the Security Council the appropriate enforcement body of the United Nations in this context? ·'' There is an issue whether non-compliance by non-States Parties should apply only in cases where a referral has been made by the Security Council, whether another mechanism might be appropriate in the case of referrals by States and whether the referral should be dependent on a determination of non-compliance. ICC-02/04-14-AnxA 13-02-2007 184/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 184/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

A/AC.249/1997/WQ.5/CRP.l/Add.l 25 November 1997

ORIGINAL: ENGLISH

PREPARATORY COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT ,1-12 December 1997 'Working Group on International Cooperation and Judicial Assistance

ABBREVIATED COMPILATION OF PROPOSALS ON INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE (ILC DRAFT STATUTE PART 7) AND ENFORCEMENT (ILC DRAFT STATUTE PART 8}

ARTICLE 53

[SURRENDER] [EXTRADITION] [TRANSFER]" OF ACCUSED OR CONVICTED PERSONS" TO THE COURT

1. Transmittal of requests; obligation of States

24 There is an issue of what is the appropriate term for the process of delivering accused or convicted persons to court, and whether that process is sui generis, or more in the vein of traditional extradition. The use of specific terms does not denote any choice of approach, but is used as a matter of convenience and is intended to be broad enough to encompass various approaches.

" It is conceivable that convicted persons may be at large for some reason. It may therefore be necessary to provide for the arrest of such convicted persons. Although this aspect is dealt with under this article, it has been pointed out that it may be more appropriate to deal with this aspect under article 59 (Enforcement of sentences).

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(a) The [Court] [Prosecutor] [Registrar]" shall transmit to any State on the territory of which the accused or convicted person may be found, a request for the [surrender] [transfer] of that person, along with the supporting material outlined in article 54, and shall request the cooperation of that State in the arrest and [surrender] [transfer] of such person.27 States Parties shall, in accordance with the provisions of this article [and their national law],28 comply with requests for [surrender] [transfer] without delay.

(b) [The extradition legislation of a requested State shall govern the conditions for granting or denying a request for [surrender] [transfer]]."

2. [Grounds for refusal]

Option 1

No grounds for refusal.

Option 2

[A State Party may deny a request for [surrender] [transfer] only if:30

26 This portion of the text is derived from ILC article 53 (1) . Under the ILC text, the Registrar would transmit the request; it was also proposed that the Prosecutor might be the proper channel (Report, Vol. II, pp. 247, 252, 282) or that the term "the Court" might be used (ibid., pp. 267, 282). A number of experts believed that the process would be more efficient and more confidential if the Registrar were not the channel for transmission of the request. • 27 Article 53 bis, below, contains the requirement that an arrest warrant be included in the surrender documentation, in conformity with ILC article 53(1) . 28 From Vol. II, p. 313. This bracketed provision raises issues of whether only national procedural provisions for execution of a request are applicable or the entire body of domestic law applicable to the execution of extradition requests. Some experts have proposed that this text, if retained, should only pertain to procedures, with the approach taken in paragraph 2 below governing the grounds for refusal. 20 Under this approach, a State's domestic legislation pertaining to bilateral international extradition would govern the procedure for executing a surrender request from the Court, the conditions for granting surrender, and the grounds for refusal. To the extent that domestic extradition law regarding grounds for refusal would be applied, this proposal represents an additional alternative to the options set forth in paragraph 2, below. 30 This list attempts to reflect some of the more frequently raised possible grounds for denial of requests for surrender. Other bases for denial that could be considered would include, but are not limited to, non bis in idem, dual criminality, expiry of statute of limitations. ICC-02/04-14-AnxA 13-02-2007 186/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 186/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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(a) with respect to a crime under [article 20 (b) through (e)] [article 20 (e) ] , it has not accepted the jurisdiction of the Court;·11

(b) the person is a national of the requested State;

(c) the person is being proceeded against or has been proceeded against, convicted or acquitted in the requested State or another State for the offence for which his [surrender] [transfer] is sought, except that a request may not be denied if the Court has determined that the case is admissible under article 35;33

(d) the request is manifestly unfounded;

(e) compliance with the request would put it in breach of an existing [international law] [treaty] obligation undertaken to another [State] [non-State party].]33

Option 3"

(a) [When ratifying this Statute, States Parties shall notify the Secretary-General of the conditions under which they would refuse [provisional arrest or] [surrender] [transfer] and shall specify elements which must be

M This subparagraph corresponds to the grounds for refusal set forth in TLC article 53(2) (d) (see Vol. II, pp. 263, 265). The final wording of such a paragraph, if it or any portion thereof is retained, may depend on which crimes are ultimately included under the jurisdiction of the Court, the extent to which an 'opting1· (or consent regime) as to jurisdiction is included, and the extent to which the Court might be deemed to have inherent jurisdiction. If the Court will have inherent jurisdiction over core crimes, this subparagraph may not be required. The brackets suggest two possible approaches if such a provision is deemed appropriate: one where acceptance of jurisdiction could be a consideration with respect to all crimes but genocide; the other where it would be a consideration only with respect to treaty crimes. ij The need for and contents of this provision must take into account articles 34 to 36 (principles of and procedure on complementarity). Issues relating to pardon and amnesty may also need to be considered. JJ See footnote to subparagraph (f) of option 1 in article 55(2) above. Subparagraphs (a) through (e) are set forth at Vol. II, p. 313; see also pp. 266-267. ?4 This paragraph would not be required if the sole permissible grounds for a State to refuse surrender are contained in option 1, subparagraphs (a) through (e), above. ICC-02/04-14-AnxA 13-02-2007 187/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 187/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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included in written request. States Parties shall not refuse [surrender] [transfer] for reasons other than those indicated.]35 (b) However, a State shall not deny a request for assistance, in whole or in part, on the grounds that: (i) the act constituting the offence to which the request relates does not constitute an offence under the laws, regulations or ordinances of the requested State; (ii) the offence is a political or military offence, or an offence connected to such an offence; or (iii) the person is a national of the requested State; (iv) [the requested State has substantial grounds for believing that the request for [surrender] [transfer] has been made for the purpose of prosecuting or punishing the person on account of that person's race, religion, nationality, ethnic origin, political opinions, sex or status, or that person's position may be prejudiced for any of those reasons;] (v) [the requested State has grounds for believing that the person whose extradition is requested has been or would be subjected in the Court to torture or cruel, inhuman or degrading treatment or punishment if that person has not or would not receive minimum guarantees in a criminal proceedings, as contained in the International Covenant on Civil and Political Rights, article 4;] (vi) the requested State does not deem it appropriate to honour the request. ] " 2 bis. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.37

35 See Vol. II, p. 266. This proposal contemplates, however, that certain grounds would be excluded as bases for denying request, such as those set out immediately below. " There are other potential grounds that might be included in this list, such as denial on the basis of ordre public. " Taken from subparagraph (d) on p. 258 of the compilation. ICC-02/04-14-AnxA 13-02-2007 188/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 188/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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3. Application to the Court to set aside [surrender] f^ransfgrl request38

A State Party may, within [ ]39 days of receiving a request under paragraph 1, file a written application with the Registrar requesting the Court to set aside the request on specified grounds [including those mentioned in articles 35 and 42]. Pending a decision of the Court on the application, the State concerned may delay complying with the request but shall take any provisional measures necessary to ensure that the accused remains in its custody or control.

4. Parallel requests the Court and State(s)

Option I40

A State Party which has accepted the jurisdiction of the Court with respect to the crime shall, as far as possible, give priority to a request from the Court under paragraph 1 over requests for extradition from other States.

Option 2

A State Party [, if it is a party to the treaty covered by [article 20 (e) and has accepted the jurisdiction of the Court,] shall [undertake to] give priority to a request from the Court under paragraph I over requests for extradition from other States*1 [Parties],42

Option 3

(a) If the requested State also receives a request from a [State] [State Party] [to which it is bound by an extradition agreement] for the extradition of the same person, either for the same offence or for a different offence for which the Court is seeking the person's [surrender] [transfer], the appropriate authority of the requested State shall determine whether to [surrender] [transfer] the person to the Court or to extradite the person to the State. In making its decision the requested State shall consider all relevant factors, including but not limited to:

[(i) whether the extradition request was made pursuant to a treaty;]

3B This is ILC article 53(6); see Vol. II, pp. 264, 271. ·" Some delegations suggested 30 days, others 45 days. The issue may also be appropriate for treatment in the Rules. 40 ILC article 53(4). This text introduces an element of discretion for the requested State, in contrast to option 2 below. 41 See Vol. II, p. 314, and top of p. 267. This provision is not compatible with subparagraph (e) of article 53(2), option 2, above. 42 See Vol. II, p. 314, and bottom of p. 267. ICC-02/04-14-AnxA 13-02-2007 189/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 189/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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(ii) the respective dates of the requests;

(iii) if the offences are different, the nature and gravity of the offences;

(iv) the interests of the State requesting extradition, including, where relevant, whether the offence was committed in its territory and the nationality of the victims of the offence; and

(v) the possibility of subsequent [surrender] [transfer] or extradition between the Court and the State requesting extradition."11

(b) The requested State may not, however, deny a request for the [surrender] [transfer] made under this article in deference to another State's request for extradition of the same person for the same offence if the State requesting extradition is a State Party and the Court has ruled the case before admissible, and its decision took into consideration the proceedings in that i State which gave rise to its extradition request/11 ! Option 4

(a) A State Party [, if it is a party to the treaty covered by [article 20 (e) and has accepted the jurisdiction of the Court,] shall give priority to a request from the Court under paragraph 1 over requests for extradition from other States Parties.

(b) If the requested State also receives a request from a non-State Party to which it is bound by an extradition agreement for the extradition of the same person, either for the same offence or for a different offence for which the Court is seeking the person's [surrender] [transfer], the requested State shall determine whether to [surrender] [transfer] the person to the Court or to extradite the person to the State. Ί '.'ng its decision the requested State shall consider all relevant factors, including but not limited to:

(i) the respective dates of the requests;

(ii) if the offences are different, the nature and gravity of the offences;

(iii) Lhe interests of the State requesting extradition, including, where relevant, whether the offence was committed in its territory and the nationality of the victims of the offence; and

(iv) the possibility of subsequent [surrender] [transfer] or extradition between the Court and the State requesting extradition.

4- Vol. II, pp. 314-315, 267.

44 The need for and contents of this provision must take into account articles 34 to 36 (principles of and procedure on complementarity). See also Vol. II, pp. 267-269. ICC-02/04-14-AnxA 13-02-2007 190/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 190/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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5. Proceeding in requested State"

Where the law of the requested State so requires, the person whose [surrender] [transfer] is sought shall be entitled to challenge the request for arrest and [surrender] [transfer] in the court of the requested State on [only] the following grounds:

(a) lack of jurisdiction of the Court;

(b) non bis in idem;46 or

(c) the evidence submitted in support of the request would not be sufficient to commit him for trial for such an offence in a court of the requested State.

6. Delayed or temporary [surrender] [transfer]

If the person sought is being proceeded against or is serving a sentence in the requested State for an offence different from that for which his [surrender] [transfer] to the Court is sought, the requested State may [with the consent of the Pre-Trial Chamber, which shall rule after having heard the Prosecutor,]:

(i) delay the [surrender] [transfer] of person until the prosecution has been completed or abandoned or the sentence has been served, at which time the person shall be [surrendered] [transferred] to the Court; or'17

(ii) temporarily [surrender] [transfer] the person to the Court, in which case the requested State may request the Court to return the person after the completion of his trial by the Court, in order that he may be prosecuted or serve his sentence in the requested State.

7. Extradite or prosecute obligation**

(a) (i) [In the case of a crime to which article 20 (e) applies,] the requested State [, if it is a party to the treaty in question but has not accepted the Court's jurisdiction with respect to that

^ See Vol. II, pp. 266, 315. Some experts felt that this provision should include a duty by the State to notify the Court of the challenge. There were also some questions about the appropriateness of this provision. There may be linkages to grounds of refusal. 'h Non bis in idem is treated in article 42. ;' See Vol. II, pp. 270-271, 315. Some delegations felt that a State should give notice to the Court regarding the reasons for any delay. ia The text of paragraph 6 (a) and (b) applies if there is a consent regime. If the Court has jurisdiction over core crimes and there is no consent regime, these provisions could be deleted. ICC-02/04-14-AnxA 13-02-2007 191/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 191/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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crime,] shall, where it decides not to [surrender] [transfer] the accused to the Court, promptly take all necessary steps to extradite the accused to a State having requested extradition or [at the request of the Court] refer the case [through proceedings in accordance with national laws] to its competent authorities for the purpose of prosecution.

(ii) [This provision shall not apply in the following' cases:

[(1) if the act constituting the offence for which [surrender] [transfer] is required was committed in the territory of the requested State and the imposition or the execution of punishment would be barred for reasons of justification or non-imputability prescribed under its laws;]

[(2) if there is no probable cause to suspect that the person has committed an act which constitutes an offence for which [surrender] [transfer] is requested.]]

[ (b) In any other case, the requested State Party shall [consider whether it can], in accordance with its legal procedures, take steps to arrest and [surrender] [transfer] the accused to the Court, or [whether it should take steps to extradite the accused to a State having requested extradition or [at the request of the Court] refer the case to its competent authorities for the purpose of prosecution.]49 [ (c) The [surrender] [transfer] of an accused to the Court constitutes, as between States Parties which accept the jurisdiction of the Court with respect to the crime in question, compliance with a provision of any treaty requiring that a suspect be extradited or that the case be referred to the competent authorities of the requested State for the purpose of prosecution.]

8. Provisions of evidence irrespective of [surrender][transfer]50

To the extent permitted under the law of the requested State and subject to the rights of third parties, all [property] [items] found in the requested State that has been acquired as a result of the alleged offence or that may be required as evidence" shall, upon request, be transmitted to the Court if

49 This was derived from article 53(2)(c) of the ILC draft, but additions were made during the August 1996 session of the Preparatory Committee. See Vol. II, p. 259. 50 At the August 1996 session of the Preparatory Committee, some delegations questioned the utility of this paragraph. Others noted that it is derived from the United Nations model and found it very useful. 51 Some experts suggested that it would be inappropriate to condition the obligation to provide evidence on third-party considerations, noting that third- party interests may instead be protected through safe return of the items. ICC-02/04-14-AnxA 13-02-2007 192/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 192/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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[surrender] [transfer] is granted on conditions to be determined by the Court even if the [surrender] [transfer] cannot be carried out.52

9. Transit of [surrendered] [transferred] person"

(a) A State Party shall authorize transportation through its territory of a person being [surrendered] [transferred] to the Court by another State. A request by the Court for transit shall be transmitted in accordance with article 52. The request for transit shall contain a description of the person being transported, a brief statement of the facts of the case and the legal characterization and the warrant for arrest and [transfer] [surrender]. A person in transit shall be detained in custody during the period of transit.

(b) (i) [No authorization is required where air transportation is used and no landing is scheduled on the territory of the State of transit.]

(ii) If an unscheduled landing occurs on the territory of the State of transit, it may require a request for transit as provided for in subparagraph (a). The State of transit shall detain the person to be transported until the request for transit is received and the transit is effected, so long as the request is received within 96 hours of the unscheduled landing.

(c) The transit of the person shall not be effected through a territory where there are grounds for believing that his life or liberty may be threatened by reason of his race, religion or nationality or political asylum.

(d) The transit of a national may be refused.

10. Costs

The costs associated with the [surrender] [transfer] of an accused or convicted person shall be borne by the [Court] [requested State].5*

" Some experts noted that in case of death of the fugitive, the provision might be necessary. 53 Vol. II, pp. 272, 316-317. It has been suggested that this or other provisions could form the basis for a separate article. In addition, some experts felt that a number of details set forth in this text would be more appropriately regulated in the Rules. rjt Taken from the second paragraph under the section on 'Costs' on p. 285 of the compilation. ICC-02/04-14-AnxA 13-02-2007 193/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 193/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

A/AC.249/1997/WG.4/DP.1 26 November 1997

ORIGINAL: ENGLISH

PREPARATORY COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 1-12 December 1997 Working Group on Procedural Matters

DRAFT REVISED ABBREVIATED COMPILATION

Article 2q.· Arrest* 1. At any time after an investigation haa been initiated, the Presidency rvre-Trial Chaaber] may at the request of the Prosecutor issue a warrant for the provisional [pr·-Indiataent] arrest of a suspect [before inoLiobaent] if: (a) there is probable cause [serious reason] (reasonable ground·! [sufficient evidence that could justify the conviction of the suspect with respect to a crime within the jurisdiction of the Court] to believe that the suspect may have committed a crime within Che jurisdiction of the Court; and (b) the suspect may not be available to stand trial unless arrested before indictment. [unless arrested before indictment, the suspect may] [there are serious reasons for believing that taking the suspect into custody is the only way to ensure that the suspect does not]: [(i) [flee] [fail to appear for trial]; [(ii) [tamper with evidence;] [(iii) intimidate witnesses or victims;] [(iv) engage in collusion with accomplices,·]

* The text between square brackets was put forward by a delegation in order to simplify the existing text and to show more clearly which are the various options/ The proposal does'not constitute as-such a new substantive proposal'.

Some delegations indicated that this article had implications for Part 7 of the Statute.

Other provisions dealing with international cooperation aspects of arrest will be considered in the context of State cooperation with the Court.

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[ (v) [continue to commit a crime within the jurisdiction of the Court; '.

[(vi) b· harmed.]] [; or

[Th· Pre-Trial Chamber may alao iaau· a warrant of judicial euperviaion in ord« to plaça a paraon under raetrictiona of liberty other than arreat.]

[Mo peraon shall be subjected to arbitrary arreat or detention. Hor aha.ll any peraon be deprived of hia liberty except on auch grounda and in accordance wit t auch procedurea aa are established by the rulea of the Court.]

2. [Ά suspect who has been arrested before indictment is entitled to release from arrest] [The warrant for the pre-indictment arreat shall be deemed to have lapsed and the request for the pre-indictment arrest of a suspect shall be deemed to have been withdrawn if [the indictment haβ not been confirmed] [a post-indictment warrant has not been aerved] within [30] [60] 90 daya of the arrest, or such longer [reasonable] time [not longer than 90 daya] as the Presidency [Pre-Trial Chamber] may allow [to a man-lain· of 90 daya] . [Th· releaaa of the peraon ahall not preclude that peraon'a rearreat should a [request for tranafer] [indictment and warrant] [post-indictment warrant] b· subsequently received.!

3. In the caae where a suspect haa been arreated before indictment, if before the expiry of [30] [SO] [90] [daya] [a reasonable time] a deeiaion ia taken by the Prosecutor not to indict the suspect or the [Presidency] [Pre-Trial Chamber decide« not to confirm the indictment, the Prosecutor ahall immediately advise the custodial State of that fact [and the custodial State shall take Steps to have the auspect immediately released from custody or any conditions of bail.]1]

4. [In the caae wnere no pre-indictment warrant haa been obtained,] [Prior to the confirmation hearing,] As soon as practicable after the confirmation of th< indictment, the Prosecutor shall seek from the Presidency [Pre-Trial Chamber] a [post-indictment] warrant for the arrest and transfer of the accused. The Presidency [Pre-Trial Chamber) shall issue such a warrant unless it is satisfiei that:

[Optional chaoeau to paragraph 4 [Open confirmation of the indictment, a warrant for the arreat of the accueed ahall be iasued by the Pre-Trial Chamber, unless, having heard the view· of the prosecutor, it is satisfied that:]

(a) the accused will voluntarily appear for trial and none of the factors in paragraph 1 (b) (ii) through (b) () are present]; or

(b) there are special circumstances making it unnecessary for the time being to issue the warrant.

There was a suggestion to move this clauae to Part 7 of the Statute. ICC-02/04-14-AnxA 13-02-2007 195/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 195/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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5. Th· Prosecutor «hall transmit the warrant to the St«t· where th· person i· located, along with a request for th· provisional arrest, or arr«s£ and transfer, of th· person under Part 7.

6. a The execution of a warrant for the arrest1 in the territory of a State Party shall be conducted in accordance with its national law. The State Party concerned shall cooperate in executing a warrant for the arrest as far as possible pursuant to the provisions of Part 7 of this Statute.

6.b The Prosecutor may, however, execute a warrant for the arrest by himself/herself only in cases where the competent authority of the State Party concerned may not be available or may be ineffective.

7. A person arrested shall be informed at the time of arrest of the reasons for the arrest and shall be promptly informed of any charges [and of his/her rights].}

[7re-indietM&t and post-indictment warrant· may also be issued when th· accused is a fugitive. In this case, th· post-indictment warrant issued by th· Pre-Trial Chamber shall have th· effect of an international warrant and shall b· disseminated by all appropriât· maan·. Whan th· accused is apprehended, the authorities shall proceed as provided'for in Part 7.]

[λ post-indictment warrant shall remain in effect until th· date of the judgement. The effects of th· warrant delivered by th· Pre-Trial chamber shall not b· interrupted by the actions challenging th· submission of cas·· to th· Court.]

1 The issue of the execution of arrest warrants is also addressed in article 29 of the abbreviated compilation.

1 While the view was expressed that paragraph 7 should be retained, the view was also expressed thac this provision related to notification and should be considered in connection with article 30. ICC-02/04-14-AnxA 13-02-2007 196/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 196/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

A/AC.249/1997/WG.4/CRP.11 11 December 1997

ORIGINAL: ENGLISH

PREPARATORY COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 1-12 December 1997 Working Group on Procedural Matters

REPORT OF THE WORKING GROUP ON PROCEDURAL MATTERS

The Working Group recommends to the Preparatory Committee the text of the following articles concerning procedural matters as a first draft for inclusion in the draft consolidated text of the convention for an international criminal court: Article 28. Arrest.

Article 29. Pre-trial detention or release.

Article 36. Challenges to the jurisdiction of the Court on the admissibility of a case.

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REVISED ABBREVIATED COMPILATION

Article 28: Arrest 1. At any time after an investigation has been initiated, the [Presidency] [Pre-Trial Chamber] may at the request of the Prosecutor issue a warrant for the pre-indictment arrest of a suspect if there are reasonable grounds1 2 to believe that: (a) the suspect has committed a crime within the jurisdiction of the Court; and (b) taking the suspect into custody is necessary to ensure that the suspect does not:

(i) fail to appear for trial;

C(ii) [interfere with or destroy evidence;]1

[(iii) [intimidate] [influence] witnesses or victims;]

[(iv) engage in collusion with accomplices;] or

[(v) [continue to commit a crime within the jurisdiction of the Court.]4

[The Pre-Trial Chamber may also issue a warrant of judicial supervision in order to place a person under restrictions of liberty other than arrest.]5

[No person shall be subjected to arbitrary arrest or detention. Nor shall any person be deprived of his liberty except on such grounds and in accordance with such procedures as are established by the rules of the Court.]6

• 1 The term "reasonable grounds" was understood to embody objective criteria. 2 Some delegations preferred the term "serious reasons". 3 Some delegations suggested that subparagraphs (ii), (iii) and (iv) could be merged under a more general formulation such as "obstructing or endangering the investigation or the court proceedings". 1 Some delegations favoured addressing situations in which the accused may be harmed or at risk. Other delegations stated that the accused could be adequately protected under article 43. 5 It was suggested that this provision could be deleted because it is addressed in article 29, paragraph 4. 6 It was suggested that this provision could be moved to article 26, paragraph 6. ICC-02/04-14-AnxA 13-02-2007 198/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 198/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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2. [a] The warrant for the pre-indictment arrest shall be deemed to have lapsed and the request for the pre-indictment arrest of a suspect shall be deemed to have been withdrawn if [the indictment has not been confirmed] [a post-indictment warrant has not been served] within [30] [60] [90] days of the arrest, or in exceptional circumstances such longer time up to a total of [60] [90] days as the [Presidency] [Pre-Trial Chamber] may allow.

[b] In the case of a State Party which has notified the Council under article 53 bis (1 bis) that it can surrender pre-indictment, the warrant for the pre-indictment arrest of a suspect shall be deemed to have been withdrawn if [the indictment has not been confirmed] [a post-indictment warrant has not been confirmed] [a post-indictment warrant has not been served] within [30] [60] [90] days of the surrender, or in exceptional circumstances such longer time up to a total of [60] [90] days as the [Presidency] [Pre-Trial Chamber] may allow.

If the Prosecutor decides not to indict the suspect or the [Presidency] [Pre-Trial Chamber] decides not to [confirm the indictment] [not to issue an arrest warrant after the indictment], the Prosecutor shall immediately advise the custodial State of that fact.1

3. [In the case where no pre-indictment warrant has been obtained,] [Prior to the confirmation hearing,] [As soon as practicable] [after the confirmation of the indictment], the Prosecutor shall seek from the Presidency [Pre-Trial Chamber] a [post-indictment] warrant for the arrest and transfer of the accused. The Presidency [Pre-Trial Chamber] shall issue such a warrant unless it is satisfied that:

[Optional chapeau to paragraph 3]

[Upon confirmation of the indictment, a warrant for the arrest of the accused shall be issued by the Pre-Trial Chamber, unless, having heard the views of the Prosecutor, it is satisfied that:]

(a) the accused will voluntarily appear for trial and none of the factors in paragraph 1 (b) (ii) through (b) [(...) are present]; or

(b) there are special circumstances making it unnecessary for the time being to issue the warrant.

4. The Prosecutor shall transmit the warrant to the State where the person may be located, along with a request for the provisional arrest, or arrest and transfer, of the person under Part 7.

5. [Pre-indictment and post-indictment warrants may also be issued when the accused is a fugitive. In this case, the post-indictment warrant issued by the Pre-Trial Chamber shall have the effect of an international warrant and shall be disseminated by all appropriate means. When the accused is apprehended, the authorities shall proceed as provided for in Part 7.]

7 It was suggested that the questions of release and re-arrest could be addressed in another provision of this Statute. ICC-02/04-14-AnxA 13-02-2007 199/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 199/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT I

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6. [A post-indictment warrant shall remain in effect until the date of the judgement. The effects of the warrant delivered by the Pre-Trial Chamber shall not be interrupted by the actions challenging the submission of cases to the Court.] ICC-02/04-14-AnxA 13-02-2007 200/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 200/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

A/AC.249/1997/WG.4/CRP.11/Corr.1 12 December 1997

ORIGINAL: ENGLISH

PREPARATORY COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 1-12 December 1997 Working Group on Procedural Matters

REPORT OF THE WORKING GROUP ON PROCEDURAL MATTERS

REVISED ABBREVIATED COMPILATION

Article 28: Arrest

1. Footnote 2 (**) of paragraph 1 should read as follows:

"Some delegations preferred other terms such as "serious reasons"

2. The end of footnote 5 (*****) of paragraph 1 should read: "paragraph 5".

3. In the third subparagraph of paragraph 2, lines 2 and 3, the bracketed words "[not to issue an arrest warrant after the indictment]" should be replaced by the words "[not to issue a post indictment warrant]".

4. In paragraph 3, the bracketed words "[Optional chapeau to paragraph 4]" should read "[Optional chapeau to paragraph 3]".

5. Also in paragraph 3, the last part of subparagraph (a) should read: "and none of the other factors in paragraph 1(b) are present]; or

6. In paragraph 4, the word "Prosecutor" should be replaced by the word "Court" to which the following footnote should be attached: The term Court is understood to include its constituent organs, including the Prosecutor, as defined in Article 5."

7. The last part of paragraph 4 should read as follows: ", or arrest and [surrender, transfer, extradition], of the person under Part 7. ICC-02/04-14-AnxA 13-02-2007 201/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 201/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Article 29: Pre-trial detention or release

1. In paragraph Ibis, first line, between the words "may" and "execute", add the following words: ", with the consent of the Trial-Chamber,".

2. In paragraph 4, the words "decision to" should be placed between square brackets.

3. In paragraph 5, the last part of the first sentence should read as follows: ...."and none of the other factors in Article 28(1 )(b) are present".

4. In paragraph 6, the second sentence, namely: 'The [Presidency] [Pretrial Chamber] shall also,· on its own initiative, review its ruling periodically", should be transferred, between brackets, from paragraph 6 to the end of paragraph 5.

5. At the end of paragraph 9, the square brackets should be closed. ICC-02/04-14-AnxA 13-02-2007 202/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 202/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

UNITED NATIONS

General Assembly Distr. LIMITED

A/AC.249/1997/L.9/Rev.l 18 December 1997

ORIGINAL: ENGLISH

PREPARATORY COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 1-12 December 1997

DECISIONS TAKEN BY THE PREPARATORY COMMITTEE AT ITS SESSION HELD FROM 1 TO 12 DECEMBER 1997

1. At its 54th meeting, on 1 December 1997, the Preparatory Committee decided to conduct its work through the following working groups: Working Group on Definitions and Elements of Crimes (chaired by Mr. Adriaan Bos); Working Group on General Principles of Criminal Law (chaired by Mr. Per Saland); Working Group on Procedural Matters (chaired by Ms. Silvia Fernandez de Gurmendi); Working Group on International Cooperation and Judicial Assistance (chaired by Mr. Pieter Kruger); and Working Group on Penalties (chaired by Mr. Rolf Einar Fife).

2. At its 55th meeting, on 12 December 1997, the Preparatory Committee took note of the reports of the Working Groups mentioned above, which are annexed to the present document (annexes I to V).

3. The Preparatory Committee also took note that, pursuant to paragraph 7 of General Assembly resolution 51/207 of 17 December 1996, the Secretary-General had established a trust fund for the participation of the least developed countries in the work of the Preparatory Committee and in the diplomatic conference of plenipotentiaries. Guidelines have been established for the administration of the Fund. The following Governments have made contributions to the Fund: Belgium, Canada, Denmark, Finland, Netherlands, Norway and Sweden. Ten States have utilized the Trust Fund to facilitate their participation in the December session. The General Assembly in resolution 51/207 calls upon States to contribute voluntarily to the Trust Fund.

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A/AC.249/1997/L.9/Rev.l English Page 23

Article 28

1. At any time after an investigation has been initiated, the [Presidency] [Pre-Trial Chamber] may at the request of the Prosecutor issue a warrant for the pre-indictment arrest of a suspect if there are reasonable grounds1 J to believe that:

(a) the suspect has committed a crime within the jurisdiction of the Court ; and

(b) taking the suspect into custody is necessary to ensure that the suspect does not :

(i) fail to appear for trial;

[(ii) [interfere with or destroy evidence;]''

[(iii) [intimidate] [influence] witnesses or victims;]

[(iv) engage in collusion with accomplices;] or

[ (v) [continue to commit a crime within the jurisdiction of the Court.]1'

[The Pre-Trial Chamber may also issue a warrant of judicial supervision in order to place a person under restrictions of liberty other than arrest.]'

' The term "reasonable grounds" was understood to embody objective criteria.

J Some delegations preferred other terms such as "serious reasons".

' Some delegations suggested that subparagraphs (ii), (iii) and (iv) could be merged under a more general formulation such as "obstructing or endangering the investigation or the court proceedings".

6 Some delegations favoured addressing situations in which the accused may be harmed or at risk. Other delegations stated that the accused could be adequately protected under article 43.

It was suggested that this provision could be deleted because it is addressed in article 29, paragraph 5.

Λ It was suggested that this provision could be moved to article 26, paragraph 6. ICC-02/04-14-AnxA 13-02-2007 204/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 204/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

A/AC.249/1997/L.9/Rev.l English Page 24

[b] In the case of a State Party which has notified the court under article 53 bis (1 b_isj that it can surrender pre-indictment, the warrant for the pre-indictment arrest of a suspect shall be deemed to have been withdrawn if [the indictment has not been confirmed] [a post-indictment warrant has not been confirmed] [a post-indictment warrant has not been served] within [30] [60] [90] days of the surrender, or in exceptional circumstances such longer time up to a total of [60] [90] days as the [Presidency] [Pre-Trial Chamber] may allow.

If the Prosecutor decides not to indict the suspect or the [Presidency] [Pre-Trial Chamber] decides not to [confirm the indictment] [not to issue a post-indictment warrant], the Prosecutor shall immediately advise the custodial State of that fact. "

3. [Tn the case where no pre-indictment warrant has been obtained,] [Prior to the confirmation hearing,] [As soon as practicable] [after the confirmation of the indictment], the Prosecutor shall seek from the Presidency [Pre-Trial Chamber] a [post-indictment] warrant for the arrest and transfer of the accused. The Presidency [Pre-Trial Chamber] shall issue such a warrant unless it is satisfied that :

[Optional chapeau to paragraph 3]

[Upon confirmation of the indictment, a warrant for the arrest of the accused shall be issued by the Pre-Trial Chamber, unless, having heard the views of the Prosecutor, it is satisfied that:]

(a) the accused will voluntarily appear for trial and none of the other factors in paragraph 1 (b) are present]; or

(b) there are special circumstances making it unnecessary for the time being to issue the warrant.

4. The Court'" shall transmit the warrant to any State whfrp the person may be located, along with a request for the provisional arrest, or arrest and [surrender, transfer, extradition] of the person under part 7.

5. [Pre-indictment and post-indictment warrants may also be issued when the accused is a fugitive. In this case, the post-indictment warrant issued by the

' It was suggested that the questions of release and re-arrest could be addressed in another provision of this Statute. ·'' The term "Court" is understood to include its constituent organs, including the Prosecutor, as defined in article 5. ICC-02/04-14-AnxA 13-02-2007 205/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 205/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

A/AC.249/1997/L.9/Rev.l English Page 25

Pre-Trial Chamber shall have the effect of an international warrant and shall be disseminated by all appropriate means. When the accused is apprehended, the authorities shall proceed as provided for in part 7.]

6. [A post-indictment warrant shall remain in effect until the date of the judgement. The effects of the warrant delivered by the Pre-Trial Chamber shall not be interrupted by the actions challenging the submission of cases to the Court.] ICC-02/04-14-AnxA 13-02-2007 206/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 206/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

A/AC.249/1997/L.9/Rev.l English Page 40

Annex IV

REPORT OF THE WORKING GROUP ON INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE*

The Working Group recommends to the Preparatory Committee the text of the following articles concerning international cooperation and judicial assistance as a first draft for inclusion in the draft consolidated text of the convention for an international criminal court:

Article 51. [General obligation to cooperate] (A/AC.249/1997/WG.5/CRP.2 and Corr.1);

Article 52. [Requests for cooperation: General provisions] (ibid.);

Article 53. [Surrender] [Transfer] [Extradition] of persons to the Court (A/AC.249/1997/WG.5/CRP.2/Add.1);

Article 53 b_ia. [Contents of request for [surrender] [transfer] [extradition] (ibid.);

Article 54. Provisional arrest (ibid.);

Article 55. Other forms of cooperation [and judicial and legal [mutual] assistance] (A/AC.249/1997/WG.5/CRP.2/Add.2);

Article 56. Execution of requests under article 55 (ibid.);

Article 57. Rule of speciality (ibid.);

Article 58. General obligation regarding recognition [and enforcement] of judgements (A/AC.249/1997/WG.5/CRP.2/Add.3);

Article 59. Role of States in enforcement of sentences [and supervision] of sentences of imprisonment (ibid.);

Article 59 b_ia. Limitation of prosecution/punishment for other offences (ibid.);

Article 59 ££r. Enforcement of fines and forfeiture measures (ibid.);

Article 60. [Pardon,] parole and commutation of sentences [early release] (ibid.);

Article 60 b_ia. Escape (ibid.).

Incorporating the documents listed in the opening paragraph. ICC-02/04-14-AnxA 13-02-2007 207/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 207/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

A/AC.249/1997/L.9/Rev.1 English Page 41

PART 7. [INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE]

Article 51

[General obligation to cooperate]1

States Parties shall, in accordance with the provisions ot this [PartJ [Statute], fully cooperate with the Court" in its investigation and prosecution of crimes under this Statute. States Parties shall so cooperate without [undue] delay.

Article 52'

[Requests for cooperation: general provisions]

1. Authorities competent to make and receive requests/Channels for communication of requests

(a) The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, accession or approval.

Such designation and subsequent changes shall be done in accordance with the Rules of Procedure.

• It was suggested that there was no need for titles.

2 "Court" is understood to include its constituent organs, including the Prosecutor, as defined in article 5. Such a provision could be inserted elsewhere in the Statute.

' It was suggested that the provisions of article 53 bis., paragraph 3, and article 55, paragraph 7, concerning the protection of witnesses and victims should be combined in a single paragraph in article 52, which would read:

"The Court may withhold, in accordance with article 43, from the requested State [or a State making a request to the Court under article 55 (6)], specific information about any victims, potential witnesses and their families if it considers that this is necessary to ensure their safety or physical and psychological well-being. Any information that is made available to a State under this part shall be provided and handled in a manner that protects the safety or physical or psychological well-being of any victims, potential witnesses or their families."

It was also suggested that the content of such a provision should be considered further. ICC-02/04-14-AnxA 13-02-2007 208/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 208/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

A/AC.249/1997/L.9/Rev.l English Page 42

(b) When appropriate, without prejudice to the provisions of paragraph 1 (a), requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization.

2. Language of requests"

Requests for cooperation [and supporting documents] shall be [either] in [an official language of the requested SLdLe [unless otherwise agreed]] [or in] [one of the working languages reflected in article 18, in accordance with the choice made by that State upon ratification, accession or approval].

[The legal effect of such request shall not be diminished if any supporting document is not in such working language provided that a brief summary of any such document in that working language is also submitted.]

3. Confidentiality of requests from the Court

The requested State shall keep confidential a request and any supporting documents, except to the extent that the disclosure is necessary for execution of the request.

4 . Cooperation by non-States Parties'1

[ (a) The Court may [call on] [invite] any State not party to this Statute to provide assistance under this part on the basis of [comity], an ad hoc arrangement, an agreement with such State [or any other appropriate basis].]

[ (b) Where a State not party to this Statute [which has entered into an ad hoc arrangement or an agreement with the Court"] , fails to cooperate with requests under paragraph (a), thereby preventing the Court from performing its duties under this Statute, the Court may make a finding to that effect and refer the matter to [the Council of States Parties'] [or] [the United Nations General Assembly] [or, where the Security Council referred the matter to the Court,] [to the Security Council] [so that necessary measures may be taken to enable the Court to exercise its jurisdiction].8]

4 The language to be used by States in their rppli es to the Court is dealt with under article 56.

s It was suggested that the issue of non-States Parties should be addressed in a separate article 51 bis.

fi It was suggested that a reference to paragraph (a) would cover this concern.

' It was suggested that the referral be made to a standing committee of the Council of States Parties. This issue needs to be further addressed in the organization of the Court.

8 The question of "necessary measures" has to be further examined. ICC-02/04-14-AnxA 13-02-2007 209/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 209/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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5 . Cooperation of intergovernmental organizations

The Court may ask any intergovernmental organizations to provide information or documents. The Court may also ask for other forms of cooperation and assistance as may be agreed upon with such organizations and in accordance with their respective competencies and/or mandates.

6. States Parties' failure to cooperate fcomplyl 'J

Where a State Party fails to comply with a request by the Court contrary to the provisions of the Statute, thereby preventing the Court from performing its duties under this Statute, the Court may make a finding to that effect and refer the matter to [the Council of States Parties1"] [or] [the United Nations General Assembly] [or, where the Security Council referred the matter to the Court] [to the Security Council] [so that necessary measures may be taken to enable the Court to exercise its jurisdiction].-·

Article 53

[Surrender] [Transfer! [Extradition] of persons'2 to the court

1. The Court13 may transmit a request for the arrest and [surrender] [transfer] [extradition] of a person, along with the supporting material outlined in article 53 b_is_, to any State on the territory of which that person may be found, and shall request the cooperation of that State in the arrest and [surrender} [transfer] [extradition] of such person. States Parties shall, in accordance with the provisions of this Part [and the procedure under their national law] , comply with requests for arrest and [surrender] [transfer] [extradition] without [undue] delay.

[1 b_is_. The national law of a requested State shall govern the conditions [procedure] for granting or denying a request for [surrender] [transfer] [extradition] [except as otherwise provided in this Part].]

I It was suggested that this paragraph should be inserted in article 51.

lc It was suggested that the referral be made to a standing committee of the Council of States Parties. This issue needs to be further addressed in the organization of the Court.

II The question of "necessary measures" has to be further examined.

'·'' The term "persons" is understood to include "suspects", "accused" and "convicted persons". [The term "suspect" means a person who is the subject of a pre-indictment arrest warrant.]

·' The term "Court" is understood to include its constituent organs, including the Prosecutor, as defined in article 5. Such a provision could be inserted elsewhere in the Statute. ICC-02/04-14-AnxA 13-02-2007 210/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 210/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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[Option 1 : No grounds for refusal.]

[Option 2 : A State Party may deny a request for [surrender] [transfer] [extradition] only if:14

(A) with respect to a crime under [article 20 (b) through (e)] [article 20 (e)], it has not accepted the jurisdiction of the Court;

[ (b) the person is a national of the requested State,·]11

(c) the person has been investigated or has been proceeded against, convicted or acquitted in the requested State or another State for the offence for which his [surrender] [transfer] [extradition] is sought [, except that a request may not be denied if the Court has determined that the case is admissible under article 35] ;

[ (d) the information submitted in support of the request does not meet the minimum evidentiary requirements of the requested State, as set forth in article 53 b_is, paragraph 1 (c) ; ]

(e) compliance with the request would put it in breach of an existing obligation that arises from [a peremptory norm of] general international law [treaty] obligation undertaken to another State.]16

[2 b_i_s_. If a request for [surrender] [transfer] [extradition] is denied, the requested State Party shall promptly inform the Court of the reasons for such denial. ]

3. Application to the Court to set aside [surrender] [transfer! [extradition]

A State Party [having received a request under paragraph 1 may, in accordance with the Rules1'] [may, in [...] days of receiving a request under

11 There is no agreement on the list of grounds contained in this option.

ls It was suggested that even if a person is a national of the requested State, this does not prevent that State from [transferring] [surrendering] the person to the Court if the latter guarantees that the national in question shall be returned to the requested State to serve the sentence pronounced by the Court (cf. article 59 (1)) .

16 It was suggested that the following ground for refusal should be included: when the imposition or the execution of punishment for the offence for which surrender is requested would be barred by reasons prescribed under the law of the requested State if the requested State were to have jurisdiction over the offence.

l; Questions dealing with the consequences of lapse of time will be addressed in the Rules. ICC-02/04-14-AnxA 13-02-2007 211/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 211/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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paragraph 1], file a written application with the Court to [set aside] [withdraw] the request on specified grounds [including those mentioned in articles 35 and 42]. Pending a decision of the Court on the application, the State concerned may delay complying with the request but shall take appropriate measures [as may be available] to ensure the compliance with the request after a decision of the Court to reject the application.

4. Parallel requests from the Court and State(a)

Option 1

(a) A State Party [which has accepted the jurisdiction of the Court] [, if it is a party to the treaty covered by [article 20 (e)] with respect to the crime,] shall [, as far as possible,] give priority to a request from the Court under paragraph 1 over requests for extradition from other States [Parties].

(b) If the requested State also receives a request from a non-State Party to which it is bound by an extradition agreement for the extradition of the same person, either for the same offence or for a different offence for which the Court is seeking the person's [surrender] [transfer] [extradition], the requested State shall determine whether to [surrender] [transfer] [extradite] the person to the Court or to extradite the person to the State. In making its decision the requested State shall consider all relevant factors, including but not limited to:

(i) the respective dates of the requests;

(ii) if the offences are different, the nature and gravity of the offences;

(iii) the interests of the State requesting extradition, including, where relevant, whether the offence was committed in its territory and the nationality of the victims of the offence; and

(iv) the possibility of subsequent [surrender] [transfer] [extradition] or extradition between the Court and the State requesting extradition.

Option 2

(a) If the requested State also receives a request from a [State] [State Party] [to which it is bound by an extradition agreement] for the extradition of the same person, either for the same offence or for a different offence for which the Court is seeking the person's [surrender] [transfer] [extradition], the appropriate authority of the requested State shall determine whether to [surrender] [transfer] [extradite] the person to the Court or to extradite the person to the State. In making its decision the requested State shall consider all relevant factors, including but not limited to:

(i) whether the extradition request was made pursuant to a treaty;

(ii) the respective dates of the requests;

(iii) if the offences are different, the nature and gravity of the offences; ICC-02/04-14-AnxA 13-02-2007 212/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 212/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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(iv) the interests of the State requesting extradition, including, where relevant, whether the offence was committed in its territory and the nationality of the victims of the offence; and

(v) the possibility of subsequent [surrender] [transfer] or extradition between the Court and the State requesting extradition.

(b) The requested State may not, however, deny a request for the [surrender] [transfer] [extradition] made under this article in deference to another State's request for extradition of the same person for the same offence if the State requesting extradition is a State Party and the Court has ruled the case before it is admissible, and its decision took into consideration the proceedings in that State which gave rise to its extradition request.

Option 3

(a) Subject to paragraph (b), a State Party [shall] [may] accord priority to a request by a State over a request by the Court for the extradition, transfer or surrender of a person to the requesting State under the provisions of any existing bilateral or multilateral agreement.

(b) A State Party shall however accord priority to requests from the Court over a request by a State where the Court has [positively] determined pursuant to article that the requesting State is unwilling or unable genuinely to carry out the investigation or prosecution of the case for which extradition, transfer or surrender is sought.

[5. Proceeding in requested State

Where the law of the requested State so requires, the person whose [surrender] [transfer] [extradition] is sought shall be entitled to challenge the request for arrest and [surrender] [transfer] [extradition] in the court of the requested State on [only] the following grounds:

[(a) lack of jurisdiction of the Court;]

[ (b) non bis in idem.·1" or]

[(c) the evidence submitted in support of the request does not meet the evidentiary requirements ot the requested State as set forth in article 53 b_is, paragraph 1 (b) (v) and (c) (ii).]]

6. Delayed or temporary [surrender] [transfer] [extradition]

If the person sought is being proceeded against or is serving a sentence in the requested State for an offence different from that for which [surrender] [transfer] [extradition] to the Court is sought, the requested State, after making its decision to grant the request, may:

18 Non bis in idem is treated in article 42. ICC-02/04-14-AnxA 13-02-2007 213/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 213/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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(a) temporarily [surrender] [transfer] [extradite] the person to the Court and in that case, the Court shall return the person to that State after the completion of the trial or as otherwise agreed; or

(b) [with the consent of the Court [Pre-Trial Chamber] which shall rule after having heard the Prosecutor] postpone the [surrender] [transfer] [extradition] of the person until the completion or abandonment of the prosecution [or compleLion ot service of the sentence] .15

[7. Extradite or prosecute obligation'"

(a) In the case of a crime to which article 20 (e) applies, the requested State [, if it is a party to the treaty in question but has not accepted the Court's jurisdiction with respect to that crime,] shall, where it decides not to [surrender] [transfer] [extradite] the accused to the Court, promptly take all necessary steps to extradite the accused to a State having requested extradition or [at the request of the Court] refer the case [through proceedings in accordance with national laws] to its competent authorities for the purpose of prosecution.

[ (b) In any other case, the requested State Party shall [consider whether it can], in accordance with its legal procedures, take steps to arrest and [surrender] [transfer] [extradite] the accused to the Court, or [whether it should take steps to extradite the accused to a State having requested extradition or [at the request of the Court] refer the case to its competent authorities for the purpose of prosecution.]

[ (c) The [surrender] [transfer] [extradition] of an accused to the Court will constitute, as between States Parties which accept the jurisdiction of the Court with respect to the crime in question, compliance with a provision of any treaty requiring that a suspect be extradited or that the case be referred to the competent authorities of the requested State for the purpose of prosecution.]]

[8. Provisions of evidence irrespective of [surrender] [transfer! [extradition]

[To the extent permitted under the law of the requested State] and without prejudice to the rights of third parties, all items found in the requested State [that have been acquired as a result of the alleged crime or] that may be required as evidence shall, upon request, be transmitted to the Court [if the [surrender] [transfer] [extradition] [is granted on conditions to be determined by the Court] even if the [surrender] [transfer] [extradition] of the person cannot be carried out.] [Any rights which third parties may have acquired in the said items shall be preserved where these rights exist. The property shall

•3 If it is agreed that consent of the Court will be required for postponement, then the last set of brackets can be removed.

;0 The text of paragraph 7 (a) and (b) applies if there is a consent regime. If the Court has jurisdiction over core crimes and there is no consent regime, these provisions could be deleted. ICC-02/04-14-AnxA 13-02-2007 214/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 214/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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be returned without charge to the requested State as soon as possible after the trial.]]

9. Transit of [surrendered! [transferred! Fextraditedl person21

(a) A State Party shall authorize transportation under its national procedural law through its territory of a person being [surrendered] [transferred] [extradited] Lo the Court by another State. A request by the Court for transit shall be transmitted in accordance with article 52. The request for transit shall contain a description of the person being transported, a brief statement of the facts of the case and the legal characterization and the warrant for arrest and [transfer] [surrender] [extradition]. A person in transit shall be detained in custody during the period of transit.

(b) [No authorization is required where air transportation is used and no landing is scheduled on the territory of the State of transit.]

(c) If an unscheduled landing occurs on the territory of the State of transit, it may require a request for transit as provided for in subparagraph (a). The State of transit shall detain the person to be transported until the request for transit is received and the transit is effected, so long as the request is received within 96 hours of the unscheduled landing.

10. CcsJtS

The costs associated with the [surrender] [transfer] [extradition] of a person shall be borne by [the [Court] [requested State]] [the Court or the requested State depending upon where the cost concerned arises].

Article 53 bis

Contenta of request for [surrender! ftransferl iextraditionl22

1. A request for arrest and [surrender] [transfer] [extradition] shall be made in writing. In urgent cases a request may be made by any medium capable of

21 It has been suggested that this or other provisions could form the basis for a separate article. In addition, some felt that a number of details set forth in this text would be more appropriately regulated in the Rules.

" Portions of this article might also be provided for in the Rules rather than in the Statute. ICC-02/04-14-AnxA 13-02-2007 215/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 215/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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delivering a written record,23 provided that a request shall be confirmed [if necessary] through the channel provided for in article 52.2l The request shall contain or be supported by:

(a) information describing the person sought, sufficient to identify the person and information as to that person's probable location;

(b) in Lhe case of a request for pre-indictment arrest and [surrender] [transfer] [extradition]:

(i) a copy of warrant for arrest;2^

(ii) a statement of the reasons to believe the suspect may have committed a crime within the jurisdiction of the Court and that the Prosecutor expects to seek an indictment within [90] days;

(iii) a brief summary of the [essential] facts of the case;

(iv) a statement as to why pre-indictment arrest is urgent and necessary;"

(v) [such documents, statements, or other types of information regarding the commission of the offence and the person's role therein, which may be required by the laws of the requested State;] [however, in no event may the requested State's requirements be more burdensome than those applicable to requests for extradition pursuant to treaties with other States,·]

(i) a copy of the warrant of arrest and indictment;

(ii) [such documents, statements, or other types of information regarding the commission of the offence and the accused's role therein which may be required by the laws of the requested State; [however, in no event may the requested State's requirements be more burdensome than those

21 Issues relating to the security of this type of transmission will have to be discussed.

24 Articles 52, 53 bis., 54 and 55 contain virtually identical provisions, some of which should be harmonized.

;s The question of authentication of a warrant of arrest will be dealt with in the Rules.

26 Article 28 covers pre-indictment arrest, while this paragraph also addresses the form of a request for pre-indictment arrest. The text of these two provisions must be examined together to ensure that there are no inconsistencies or duplications. ICC-02/04-14-AnxA 13-02-2007 216/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 216/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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applicable to requests for extradition pursuant to treaties or other arrangements with other States;]]

(d) in the case of a request for the arrest and [surrender] [transfer] [extradition] of a person already convicted:2'

(i) a copy of any warrant of arrest for that person;

(ii) a copy of the judgement of conviction;

(iii) information to demonstrate that the person sought is the one referred to in the judgement of conviction;

(iv) (if the person sought has been sentenced,) a copy of the sentence imposed and a statement of any time already served and that remaining.

1 b_is_. A State Party shall notify the Court at the time of ratification, accession or approval whether it can [surrender] [transfer] [extradite] on the basis of a pre-indictment warrant and the information specified in paragraph 1 (b) or it can only [surrender] [transfer] [extradite] following [confirmation of indictment] [issuance of a post-indictment warrant] on the basis of the information in paragraph 1 (c).

[2. Where the requested State Party considers the information provided insufficient to allow it to comply with the request, it shall seek, without delay, additional information and may fix a reasonable time limit for the receipt thereof. [Any proceedings in the requested State may be continued, and the person sought may be detained, for such period as may be necessary to enable the Court to provide the additional information requested.] If the additional information is not provided within the reasonable time limit fixed by the requested State, the person may be released.]

[3. The Court may in accordance with article 43 withhold from the requested State specific information about any victims, potential witnesses and their families if it considers that it is necessary to ensure their safety or physical or psychological well-being. Any information that is made available under this article shall be provided and handled in a manner that protects the safety or physical or psychological well-being of any victims, potential witnesses and their families.]*'1

27 It was suggested that this paragraph is an enforcement-of-sentence issue to be treated in part 8.

:e This paragraph could also be included under article 52.

I... ICC-02/04-14-AnxA 13-02-2007 217/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 217/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Article 54

Provisional arrest·'1'

1. In case of urgency, the Court may request the provisional arrest of the person sought pending presentation of the request for [surrender] [transfer] [extradition] and supporting documents under article 53 b_is_.

2. The request for provisional arrest shall [be made by any medium capable of delivering a written record and shall] contain:

(i) a description of the person sought and information regarding the probable location of such person;

(ii) a brief statement of the essential facts of the case, including, if possible, the time and location of the offence;

(iii) a statement of the existence of a warrant of arrest or a judgement of conviction against the person sought, and, if applicable, a description of the specific offence or offences with which the person has been charged or for which he has been convicted; and

(iv) a statement that a request for [surrender] [transfer] [extradition] of the person sought will follow.

2 b_is_. The Court may withhold from the requested State specific information about any victims, potential witnesses and their families or close associates if it considers that it is necessary to ensure their safety or well-being. Any information that is provided under this article to the requested State shall be provided in a manner that protects the safety or well-being of any victims, potential witnesses and their families or close associates.

3 . A person who is provisionally arrested may be discharged from custody upon the expiration of [ ] '° days from the date of provisional arrest if the requested State has not received the request for [surrender] [transfer] [extradition] and the supporting documents specified under article 53 b_is_. However, the person may consent to [surrender] [transfer] [extradition] before the expiration of this period if the legislation of the requested State allows, in which case that

" ILC article 52 (1) (a) addresses provisional arrest, as well as search and seizure and other measures pertaining to mutual assistance. In order to present all proposals in a clear fashion, the present document treats provisional arrest in this article and the other matters in article 55. Article 28 provides for pre-indictment arrest under certain limited circumstances. To avoid confusion with the term of provisional arrest provided for in this article, it is for consideration whether the form of arrest in article 28 should be termed "provisional arrest". This article may have other implications for article 28.

10 Some delegations have proposed a 30-day period, some a 40-day period and some a 60-day time period. ICC-02/04-14-AnxA 13-02-2007 218/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 218/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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State shall proceed to [surrender] [transfer] [extradite] the person to the Court as soon as possible.31

4. The fact that the person sought has been discharged from custody pursuant to subparagraph (c) shall not prejudice the subsequent rearrest and [surrender] [transfer] [extradition] of that person if the request for [surrender] [transfer] [extradition] and supporting documents are delivered at a later date.

Article 55

Other forms of cooperation Fand judicial and legal Tmutuall assistance"!i 2

1. States Parties shall, in accordance with the provisions of this Part [and their national [procedural] law], comply with requests for assistance by the Court for·.

(a) the identification and whereabouts of persons or the location of items;

(b) the taking of evidence, including testimony under oath, and the production of evidence, including expert opinions or reports necessary to the Court ;

(d) the service of documents, including judicial documents;

(e) facilitating the appearance of persons before the Court;

[(f) the temporary transfer of persons in custody, with their consent [which cannot be withdrawn], in order to provide testimony [or other assistance] to the Court ;]

[ (g) the conduct of on-site investigations and inspections33 [with the consent of the requested State];]

11 It was suggested that the simplified surrender procedure should be the object of a separate paragraph, since it applies to both the provisional arrest stage and after a full surrender request has been submitted.

This paragraph could also be included in article 52.

32 This issue has to be revisited after the title of part 7 is confirmed.

33 This issue is also addressed in article 26 (2) b_is which is being considered by the Working Group on Procedural Matters. ICC-02/04-14-AnxA 13-02-2007 219/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 219/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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[ (h) the conduct of proceedings of the Court in its territory with the consent of the requested State,·]'4

(i) the execution of searches and seizures;

(j) the provision of records and documents, including official records and documents;

(k) the protection of victims and witnesses and the integrity of evidence;

(1) the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual confiscation without prejudice to the rights of bona fide third parties;35 and

(m) any other types of assistance [not prohibited by the law of the requested State].

[2. Grounds for refusal

Option 1

A State Party shall not deny a request for assistance from the Court.

Option 2

A State Party may deny a request for assistance, in whole or in part, only if :lu

(a) with respect to a crime [under [article 20 (b) through (e)] [article 20 (e)], it has not accepted the jurisdiction of the Court;

(b) the authorities of the requested State would be prohibited by its national laws from carrying out the action requested with regard to the investigation or prosecution of a similar offence in that State;

(c) b_i_a the request concerns the production of any documents or disclosure of evidence which relates to its national [security] [defence];

(d) execution of the request would interfere with an ongoing investigation or prosecution in the requested State or in another State [or with a completed

54 The relationship between subparagraphs (g) and (h) and article 56 (4) needs to be examined.

11 The issue of whether the Court is to be vested with such powers is being considered by the Working Group on Penalties.

ifi The list of possible grounds for refusal is not an agreed list. ICC-02/04-14-AnxA 13-02-2007 220/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 220/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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investigation or prosecution that might have led to an acquittal or conviction, except that a request may not be denied if the investigation or prosecution relates to the same matter which is the subject of the request and the Court has determined that the case is admissible under article 35];

(e) compliance with the request would put it in breach of an existing [international law] [treaty] obligation undertaken to another [State] [non-State Party].]

[3. Before denying a request for assistance, the requested State shall consider whether the requested assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later time or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, it shall abide by them.]

4. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.

[4 b_ia. If a requested State does not produce a document or disclose evidence under paragraph 2 (c) b_ia on the ground that it relates to its national defence, the Trial Chamber shall only make such inferences that relate to the guilt or innocence of the accused.]"

5. Confidentiality"

(a) The Court shall ensure the confidentiality of documents and information except as required for the investigation and proceedings described in the request.

(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.

(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts IV and V of the Statute and related Rules.

11 Views have been expressed that consideration should be given to establishing a mechanism for dealing with such sensitive information.

'8 The work of the Working Group on Procedural Matters on the protection of sensitive information and the protection of victims and witnesses may have an impact on this provision. Views have also been expressed that subparagraphs (b) and (c) should be addressed in the Rules. ICC-02/04-14-AnxA 13-02-2007 221/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 221/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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6 . Assistance by the Court"

(a) The Court [may] [shall], upon request, cooperate with and provide assistance [within its competence] to a State Party conducting an investigation into or trial in respect of acts which constitute a crime under this Statute [or which constitute a serious crime under the national law of the requesting State].

(b) (i) The assistance provided under subparagraph (a) shall include, among others :

(1) the transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and

(2) the questioning of any person detained by the Court;

(ii) In the case of assistance under subparagraph (b) (i) (1):

(1) If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State,·411

(2) If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 434: [and shall require the consent of that witness or expert];

(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a non-State party.

7. Form and contents of the request

(a) Requests for judicial and legal [mutual] assistance shall:

(i) be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that it shall be confirmed [, if necessary,] through the channel provided for in article 52; and

39 Views have been expressed that subparagraphs (b) (i) and (ii) should be addressed in the Rules.

40 The relationship with article 57 needs to be considered.

41 This relates to the provisions on the protection of victims and witnesses. ICC-02/04-14-AnxA 13-02-2007 222/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 222/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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(ii) contain the following, as applicable:

(1) a brief statement of the purpose of the request and the assistance sought, including the legal basis and grounds for the request;

(2) as much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;

(3) a brief description of the essential facts underlying the request;

(4) the reasons for and details of any procedure or requirement to be followed;

[(5) such information as may be required under the law of the requested State in order to execute the request ,· ]

(6) any other information relevant to the assistance being sought.

(b) The Court may withhold, in accordance with article 43, from the requested State [or a State making a request under paragraph 6] specific information about any victims, potential witnesses and their families if it considers that this is necessary to ensure their safety or physical and psychological well-being. Any information that is made available under this article to the requested State shall be provided and handled in a manner that protects the safety or physical or psychological well-being of any victims, potential witnesses and their families.'12

Article 56

Execution of requests under article 55

1. Requests for assistance shall be executed in accordance with the law of the requested State [and, unless prohibited by such law, in the manner specified in the request, including following any procedures outlined therein or permitting persons specified in the request to be present at and assist in the execution process41 [by its competent authorities]].

2. In the case of an urgent request, the documents or evidence produced in response shall, at the request of the Court, be sent urgently.44

42 Consideration needs to be given to whether this provision can be relocated to article 52 or article 56.

41 There is a link between this provision and the empowerment provisions of paragraph 4.

44 Views have been expressed that this should be addressed in the Rules. ICC-02/04-14-AnxA 13-02-2007 223/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 223/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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3. Replies from States Parties, including any accompanying documents, [may be in the language of the requested State] [shall be in accordance with paragraph 2 of article 52. The Court may also request the transmission of documents in their original language].

[4. The [Prosecutor] [Court] may [, if requested,] assist the authorities of the requested State with the execution of the request for judicial assistance [and may, with the consent of the requested State, carry out certain inquiries on its territory].]45

[4 b_is_. [For the purposes of paragraph 4,] the requested State shall, upon request, inform the Court of the time and place of execution of the request for assistance. ]4f

5. (a) The ordinary costs for execution of requests in the territory of the requested State shall be borne by the requested State except for the following which should be borne by the Court :

(i) Costs associated with the travel and security of witnesses and experts or the transfer of persons in custody;

(ii) Costs of translation, interpretation and transcription;

(iii) The travel and subsistence costs of the Prosecutor, members of his office or any other member of the Court; and

(iv) The costs of any expert opinion or report requested by the Court.

(b) Where the execution of a request will result in extraordinary costs, [there shall be consultations to determine how those costs will be met] [those costs shall be met by the Court].

(c) The provisions in this paragraph shall apply with appropriate modifications to requests made to the Court for assistance.1"

[6 . (a) Witnesses or experts may not be compelled to testify at the seat of the Court.

[ (b) If they do not wish to travel to the seat of the Court, their evidence shall be taken in the country in which they reside or in such other place as

•^ Views have been expressed that paragraph 1 is an alternative to this paragraph.

*f Views have been expressed that this should be addressed in the Rules.

" Similar provisions may have to be inserted elsewhere to address the situation where the Court renders assistance to States or States Parties. ICC-02/04-14-AnxA 13-02-2007 224/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 224/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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they may agree upon with the Court [in accordance with national requirements [and in compliance with international law standards]4"] .

(c) In order to guarantee the safety of witnesses and experts, any means of communication may be used to take their evidence while preserving their anonymity.49] '"

[ (d) No witness or expert who appears betöre the Court may be prosecuted, detained or submitted to any restriction of personal freedom by the Court in respect of any acts [or omissions] that preceded the departure of that person from the requested State.]

7. Provisions allowing a person heard or examined by the Court under article [...] to invoke restrictions designed to prevent disclosure of confidential information connected with national defence or security also apply to the execution of requests for assistance under this article.

[Article 57

Rule of speciality

1. Limit on other proceedings against [surrendered! [transferred] [extradited! person

A person [surrendered] [transferred] [extradited] to the Court under this Statute shall not be:

(a) proceeded against, punished or detained for any criminal act other than that for which the person has been [surrendered] [transferred] [extradited];

(b) [surrendered] [transferred] [extradited] to another State in respect of any criminal acf'

[except when he or she commits the criminal act after [extradition] [surrender] [transfer]].

43 The exact formulation will depend on the formulation adopted for article 44. 43 The protection of witnesses is also addressed in articles 26 and 43.

'° Views have been expressed on the relationship between subparagraphs (b) and (c) and article 37 on trial in the presence of the accused.

''- The issue of transfer, etc., from the State of enforcement of a sentence of imprisonment to a third State is addressed in article 59 (4). ICC-02/04-14-AnxA 13-02-2007 225/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 225/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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2. Limit on other uses of evidence

Evidence provided by a State Party under this Statute shall [, if that State Party so requests,] not be used as evidence for any purpose other than that for which it was provided [unless this is necessary to preserve a right of the accused under article 41 (2)].

3. Waiver of rule by the requested State

The Court may request the State concerned to waive the requirements of paragraphs 1 or 2, for the reasons and purposes to be specified in the request. In the case of paragraph 1, this request shall be accompanied by an additional warrant of arrest and by a legal record of any statement made by the accused with respect to the offence.]"

PART 8 . ENFORCEMENT1'1

Article 58

General obligation regarding recognition Tand enforcement] of judgements

States Parties [shall] [undertake to recognize] [[and to] enforce directly on their territory] [give effect to] the judgements of the Court [, in accordance with the provisions of this Part].

[The judgements of the Court shall be binding on the national jurisdictions of every State Party as regards the criminal liability of the person convicted and the principles relating to compensation for damage caused to victims and the restitution of property acquired by the person convicted and other forms of reparation ordered by the Court, such as restitution, compensation and rehabilitation. ] '4

52 These square brackets reflect the view that there should be no rule of speciality in the Statute.

11 One delegation was of the view that part 8 deals with issues also relevant to judicial assistance and that there might be grounds for non-recognition or non-enforcement of judgements.

''4 There was a question whether this sort of provision should be in article 45, article 47 or in part 8. ICC-02/04-14-AnxA 13-02-2007 226/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 226/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

UNITED A NATIONS f\

General Assembly Diatr. LIMITED

A/AC.249/1998/L.13 4 February 1998

ORIGINAL : ENGLISH

PREPARATORY COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 16 March-3 April 1998

REPORT OF THE INTER-SESSIONAL MEETING FROM 19 TO 30 JANUARY 1998 IN ZUTPHEN, THE NETHERLANDS

CONTENTS

Page

I. INTRODUCTION 8

II. DRAFT STATUTE FOR THE INTERNATIONAL CRIMINAL COURT 11

PREAMBLE 11

PART 1. ESTABLISHMENT OF THE COURT 12

Article 1. The Court 12 Article 2. Relationship of the Court with the United Nations 12 Article 3. Seat of the Court 13

Article 4. Status and legal capacity 14

PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW 16 Article 5 [20] . Crimes within the jurisdiction of the Court 16 Crime of genocide 17

[Crime of aggression] 19 War crimes 21

98-02528 (Ε) 23029Θ /... ICC-02/04-14-AnxA 13-02-2007 227/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 227/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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N.B. Subparagraph· (d), (·) and (f) of paragraph 5 could b· consolidated further.

Article 52[28Γ"

Arrest

(a) the suspect has committed a crime within the jurisdiction of the Court ; and

(b) taking the suspect into custody is necessary to ensure that the suspect does not:

(i) fail to appear for trial;

[ (ii) [interfere with or destroy evidence;]168

[(iii) [intimidate] [influence] witnesses or victims;]

[ (iv) engage in collusion with accomplices;] or

[ (v) [continue to commit a crime within the jurisdiction of the Court.]1"

[The Pre-Trial Chamber may also issue a warrant of judicial supervision in order to place a person under restrictions of liberty other than arrest.]110

165 A/AC.249/1997/L.9/Rev.l, pp. 23-25. 166 The term "reasonable grounds" was understood to embody objective criteria.

167 Some delegations preferred other terms such as "serious reasons". 168 Some delegations suggested that subparagraphs (ii), (iii) and (iv) could be merged under a more general formulation such as "obstructing or endangering the investigation or the court proceedings". 169 Some delegations favoured addressing situations in which the accused may be harmed or at risk. Other delegations stated that the accused could be adequately protected under article 61 [43]. 170 It was suggested that this provision could be deleted because it is addressed in article 53[29], paragraph 5. ICC-02/04-14-AnxA 13-02-2007 228/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 228/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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2. (a) The warrant for the pre-indictment arrest shall be deemed to have lapsed and the request for the pre-indictment arrest of a suspect shall be deemed to have been withdrawn if [the indictment has not been confirmed] [a post-indictment warrant has not been served] within [30] [60] [90] days of the arrest, or in exceptional circumstances such longer time up to a total of [60] [90] days as the [Presidency] [Pre-Trial Chamber] may allow.

(b) In the case of a State Party which has notified the Court under article 80 [53 bis] (1 bis) that it can surrender pre-indictment, the warrant for the pre-indictment arrest of a suspect shall be deemed to have been withdrawn if [the indictment has not been confirmed] [a post-indictment warrant has not been confirmed] [a post-indictment warrant has not been served] within [30] [60] [90] days of the surrender, or in exceptional circumstances such longer time up to a total of [60] [90] days as the [Presidency] [Pre-Trial Chamber] may allow.

3. "Opening clause":

Option 1

[In the case where no pre-indictment warrant has been obtained,] [Prior to the confirmation hearing,] [As soon as practicable] [after the confirmation of the indictment] , the Prosecutor shall seek from the [Presidency] [Pre-Trial Chamber] a [post-indictment] warrant for the arrest and transfer of the accused. The [Presidency] [Pre-Trial Chamber] shall issue such a warrant unless it is satisfied that:

Option 2

Upon confirmation of the indictment, a warrant for the arrest of the accused shall be issued by the Pre-Trial Chamber, unless, having heard the views of the Prosecutor, it is satisfied that:

(a) the accused will voluntarily appear for trial and none of the other factors in paragraph 1 (b) are present]; or

171 It was suggested that this provision could be moved to article 47 [26], paragraph 6. 172 It was suggested that the questions of release and re-arrest could be addressed in another provision of this Statute. ICC-02/04-14-AnxA 13-02-2007 229/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 229/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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(b) there are special circumstances making it unnecessary for the time being to issue the warrant.

4. The Court173 shall transmit the warrant to any State where the person may be located, along with a request for the provisional arrest, or arrest and [surrender, transfer, extradition] of the person under Part 9[7],

Article 53 [29]174

Pre-trial detention or release

1. [The States [Parties] [in which the person is located] [and in which the crime was committed] shall be notified of a warrant issued by the Pre-Trial Chamber.] The State that has received a pre- or post-indictment warrant and a request for the arrest of a person under article 52[28] (5) shall immediately [in accordance with its laws]175 [[and] in accordance with the provisions of Part 9 [7] of this Statute] take steps to arrest the suspect [on the basis of the warrant issued by the Court or by obtaining a domestic warrant for arrest based on the Court's warrant and request].176

173 The term "Court" is understood to include its constituent organs, including the Prosecutor, as defined in article 29[5]. 17< A/AC.249/1997/L.9/Rev.l, pp. 26-27.

175 Under article 52[28] (5), a warrant for pre-indictment arrest is forwarded to the State in which the individual sought may be located, along with a request for provisional arrest or transfer/surrender under Part 9[7]. If Part 9[7] specifies the extent to which national laws apply to requests for provisional arrest or transfer/surrender, it will be unnecessary to treat this issue here as well.

176 The issue of whether a State can decline to arrest and detain a person, pending resolution of a challenge under article 12[36], could be dealt with in that article. ICC-02/04-14-AnxA 13-02-2007 230/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 230/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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[1 bis. The Prosecutor may, with the consent of the Pre-Trial Chamber, execute a warrant for arrest by him or herself only in cases where the competent authority of the State Party concerned may not be available or may be ineffective. ]ίΊΊ

2. A person arrested shall be brought promptly before a competent judicial authority in the custodial State who shall determine, in accordance with the law of that State, that the warrant applies to that person and the person has been arrested in accordance with the proper process and that the person's rights have been respected.

3. The person shall have the right to apply to [the competent judicial authority in the custodial State] [the Pre-Trial Chamber] for interim release pending [surrender] [transfer] [extradition] [in accordance with its national law] . [The custodial State shall take into account the views of the Prosecutor [and Court] on interim release.]

N.B. Th· term "Court11, if retained in thi· paragraph, ahould be clarified.

4. After the [decision to] [surrender] [transfer] [extradite] to the Court, the person may apply to the [Presidency] [Pre-Trial Chamber] for interim release pending trial.

5. The person shall be detained unless the [Presidency] [Pre-Trial Chamber] is satisfied that the person will voluntarily appear for trial and none of the other factors in article 52 [28] (1) (b) are present. If it decides to release the person, it may do so with or without conditions [or may issue a warrant of judicial supervision restricting the person's liberty other than by arrest]. [The [Presidency] [Pre-Trial Chamber] shall also, on its own initiative, review its ruling periodically. If satisfied that changed circumstances require that the ruling be modified, it may order any measure provided for in paragraph 4.]

N.B. Reference to "any measure provided for in paragraph 4· «hould be revieed in the light of the current language of paragraph 4.

6. (a) The [Presidency] [Pre-Trial Chamber] may, either of its own initiative or at the request of the person concerned or the Prosecutor, modify its ruling as to detention [, judicial supervision] or conditional release in effect at that time.

[ (b) The person may be detained prior to trial for a maximum of one year; however, this period may be extended up to an additional year by the [Presidency] [Pre-Trial Chamber] if the Prosecutor can demonstrate that he or

111 This provision raises a host of issues, including under what conditions the Prosecutor should be able to exercise such authority, whether the Prosecutor would have adequate resources to do so, and whether such issues should be addressed elsewhere in the Statute. ICC-02/04-14-AnxA 13-02-2007 231/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 231/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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she will be ready for trial within that period and can show good cause for the delay.]

(c) The person and the Prosecutor may appeal the [Presidency's] [Pre-Trial Chamber's] determination regarding release or detention to the Appeals Chamber.

7. If necessary, the [Presidency] [Pre-Trial Chamber] may issue a warrant of arrest to secure the presence of an accused who has been released.

8. A person arrested may apply to the [Presidency] [Pre-Trial Chamber] for a determination of the lawfulness under this Statute of any arrest warrant or order of detention issued by the Court. If the [Presidency] [Pre-Trial Chamber] decides that the arrest or detention was unlawful under the Statute, it shall order the release of the person, [and may award compensation] [in accordance with article . . .] .17Θ

9. [A person arrested shall be held, pending trial or release on bail, in an appropriate place of detention in the arresting State, in the State in which the trial is to be held, or if necessary in the host State.] [Once ordered [surrendered] [transferred] [extradited] by the custodial State, the person shall be delivered to the Court as soon as possible, and shall be held in an appropriate place of detention in the host State or other State in which the trial is to be held.]

Article 54[30]179 18°

Notification of the indictment

N.B. It might b· neceeeary to broaden th· title of thi· article to cover the whole of it· content.

1. The [Prosecutor] [Registrar] shall ensure, where necessary with the cooperation of national authorities, that a person who has been arrested is personally served, as soon as possible after being taken into custody, with certified copies of the following documents, in α language underotood by that pegoon [in a language that the accused understands] [in his own language]:

178 A number of issues were raised regarding compensation, including whether it should be mandatory or discretionary, whether it should be granted even when the Prosecutor acted in good faith, whether such determination is not appropriate until the judgement becomes final and whether granting compensation may prevent the Prosecutor from diligently carrying out his or her duties.

179 A/AC.249/1997/L.8/Rev.l, pp. 25-27.

180 The wording of this article might be modified in the light of the decisions to be taken as regards the question of hearing of the confirmation of an indictment. ICC-02/04-14-AnxA 13-02-2007 232/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 232/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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PART 9. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE"7

Article 77 [51]"' General obligation to cooperate

States Parties shall, in accordance with the provisions of this [Part] [Statute] , fully cooperate with the Court3" in its investigation and prosecution of crimes under this Statute. States Parties shall so cooperate without [undue] delay.

Article 78 [52]"° "1 [Requests for cooperation: general provisions] 1 . Authorities competent to make and receive requests/Channels for of requests (a) The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic

"Ί Articles 78[52], 80[53 bis], 81[54] and 82[55] contain virtually identical provisions, some of which should be harmonized.

361 A/AC.249/1997/L.9/Rev.l, p. 41. 269 "Court" throughout this Part is understood to include its constituent organs, including the Prosecutor, as defined in article 29[5]. Such a provision could be inserted elsewhere in the Statute.

N.B. S·· N.B. on article 29 [5] (Organ· of th· Court).

270 A/AC.249/1997/L.9/Rev.l, pp. 41-43. 271 It was suggested that the provisions of article 80 [53 bis], paragraph 3, and article 82[55], paragraph 7, concerning the protection of witnesses and victims should be combined in a single paragraph in article 78 [52], which would read: "The Court may withhold, in accordance with article 61 [43], from the requested State [or a State making a request to the Court under article 82 [55] (6)], specific information about any victims, potential witnesses and their families if it considers that this is necessary to ensure their safety or physical and psychological well-being. Any information that is made available to a State under this part shall be provided and handled in a manner that protects the safety or physical or psychological well-being of any victims, potential witnesses or their families." It was also suggested that the content of such a provision should be considered further. ICC-02/04-14-AnxA 13-02-2007 233/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 233/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

A/AC.249/1998/L.13 English Page 142

channel or any other appropriate channel as may be designated by each State Party upon ratification, accession or approval. Such designation and subsequent changes shall be done in accordance with the Rules of Procedure. (b) When appropriate, without prejudice to the provisions of paragraph 1 (a) , requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization. 2 . Language of requests37'

Requests for cooperation [and supporting documents] shall be [either] in [an official language of the requested State [unless otherwise agreed]] [or in] [one of the working languages reflected in article 42 [18], in accordance with the choice made by that State upon ratification, accession or approval]. [The legal effect of such request shall not be diminished if any supporting document is not in such working language provided that a brief summary of any such document in that working language is also submitted.] 3. Confidentiality of requests from the Court

The requested State shall keep confidential a request and any supporting documents, except to the extent that the disclosure is necessary for execution of the request.

4. Cooperation by non-States Parties'73 [ (a) The Court may [call on] [invite] any State not party to this Statute to provide assistance under this part on the basis of [comity,] an ad hoc arrangement, an agreement with such State [or any other appropriate basis].] [ (b) Where a State not party to this Statute [which has entered into an ad hoc arrangement or an agreement with the Court]274, fails to cooperate with requests under paragraph (a), thereby preventing the Court from performing its duties under this Statute, the Court may make a finding to that effect and refer the matter to [the Council of States Parties]'75 [or] [the United Nations General Assembly] [or, where the Security Council referred the matter to the Court,] [to

272 The language to be used by States in their replies to the Court is dealt with under article 83 [56] . 273 It was suggested that the issue of non-States Parties should be addressed in a separate article 77 [51] bis. 274 It was suggested that a reference to paragraph (a) would cover this concern. 275 It was suggested that the referral be made to a standing committee of the Council of States Parties. This issue needs to be further addressed in Part 4. ICC-02/04-14-AnxA 13-02-2007 234/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 234/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

A/AC.249/1998/L.13 English Page 143

the Security Council] [so that necessary measures may be taken to enable the Court to exercise its jurisdiction]."«]

5. Cooperation of intergovernmental organizations

6.J" States Parties' failure to cooperate [comply]

Where a State Party fails to comply with a request by the Court contrary to the provisions of the Statute, thereby preventing the Court from performing its duties under this Statute, the Court may make a finding to that effect and refer the matter to [the Council of States Parties]271 [or] [the United Nations General Assembly] [or, where the Security Council referred the matter to the Court] [to the Security Council] [so that necessary measures may be taken to enable the Court to exercise its jurisdiction]."'

N.B. In view of th· length of th· article, th· heading· of th· paragraph· •r· retained pending a decision on the text of the article. Consideration may be given to dividing the article into three a· follow·ι

paragraph· 1 to 3;

paragraph· 4 and 5;

paragraph 6.

276 The question of "necessary measures" has to be further examined. 277 It was suggested that this paragraph should be inserted in article 77 [51]. 271 It was suggested that the referral be made to a standing committee of the Council of States Parties. This issue needs to be further addressed in the organization of the Court. 279 The question of "necessary measures" has to be further examined. ICC-02/04-14-AnxA 13-02-2007 235/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 235/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Article 79[53]"°

[Surrender] [Transfer] [Extradition] of persons"1 to the Court

1. The Court may transmit a request for the arrest and [surrender] [transfer] [extradition] of a person, along with the supporting material outlined in article 80 [53 bis], to any State on the territory of which that person may be found, and shall request the cooperation of that State in the arrest and [surrender] [transfer] [extradition] of such person. States Parties shall, in accordance with the provisions of this Part [and the procedure under their national law], comply with requests for arrest and [surrender] [transfer] [extradition] without [undue] delay.

[1 bis. The national law of a requested State shall govern the [conditions] [procedure] for granting or denying a request for [surrender] [transfer] [extradition] [except as otherwise provided in this Part].]

[Option 1 : No grounds for refusal.]

[Option 2 : A State Party may deny a request for [surrender] [transfer] [extradition] only if:3"

(a) with respect to a crime under [article 5 [20] (b) through (e)] [article 5 [20] (e)], it has not accepted the jurisdiction of the Court;

[ (b) the person is a national of the requested State,·]3"

3·° A/AC.249/1997/L.9/Rev.l, pp. 43-48.

3il The term "persons" is understood to include "suspects", "accused" and "convicted persons". [The term "suspect" means a person who is the subject of a pre-indictment arrest warrant.]

3" There is no agreement on the list of grounds contained in this option.

3" It was suggested that even if a person is a national of the requested State, this does not prevent that State from [transferring] [surrendering] [extraditing] the person to the Court if the latter guarantees that the national in question shall be returned to the requested State to serve the sentence pronounced by the Court (cf. article 86 [59] (1)). ICC-02/04-14-AnxA 13-02-2007 236/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 236/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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[ (d) the information submitted in support of the request does not meet the minimum evidentiary requirements of the requested State, as set forth in article 80 [53 bis], paragraph 1 (c);] (e) compliance with the request would put it in breach of an existing obligation that arises from [a peremptory norm of] general international law [treaty] obligation undertaken to another State.]"*

N.B. Th· option· in thi· Bubparagraph «r· not clear.

[2 bis. If a request for [surrender] [transfer] [extradition] is denied, the requested State Party shall promptly inform the Court of the reasons for such denial.] 3. Application to the Court to set aside [surrender] [transfer] [extradition] A State Party [having received a request under paragraph 1 may, in accordance with the Rules2"] [may, in [. . . ] days of receiving a request under paragraph 1], file a written application with the Court to [set aside] [withdraw] the request on specified grounds [including those mentioned in articles 11 [35] and 13 [42]]. Pending a decision of the Court on the application, the State concerned may delay complying with the request but shall take appropriate measures [as may be available] to ensure the compliance with the request after a decision of the Court to reject the application. 4. Parallel requests from the Court and State(s) Option 1 (a) A State Party [which has accepted the jurisdiction of the Court] [, if it is a party to the treaty covered by [article 5 [20] (e)] with respect to the crime,] shall [, as far as possible,] give priority to a request from the Court under paragraph 1 over requests for extradition from other States [Parties]. (b) If the requested State also receives a request from a non-State Party to which it is bound by an extradition agreement for the extradition of the same person, either for the same offence or for a different offence for which the Court is seeking the person's [surrender] [transfer] [extradition], the requested State shall determine whether to [surrender] [transfer] [extradite] the person to the Court or to extradite the person to the State. In making its decision the requested State shall consider all relevant factors, including but not limited to:

SM It was suggested that the following ground for refusal should be included: when the imposition or the execution of punishment for the offence for which surrender is requested would be barred by reasons prescribed under the law of the requested State if the requested State were to have jurisdiction over the offence. a" Questions dealing with the consequences of lapse of time will be addressed in the Rules. ICC-02/04-14-AnxA 13-02-2007 237/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 237/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

UNITED NATIONS

United Nations Diplomatic Conference Distr. of Plenipotentiaries on the GENERAL Establishment A/CONF.183/2/Add.l of an International Criminal Court 14 April 1998

ORIGINAL: ENGLISH Rome, Italy 15 June-17 July 1998

REPORT OF THE PREPARATORY COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT

Addendum

CONTENTS

Page

PART ONE. DRAFT STATUTE FOR THE INTERNATIONAL CRIMINAL COURT 2

PART TWO. DRAFT FINAL ACT OF THE UNITED NATIONS DIPLOMATIC CONFERENCE OF PLENIPOTENTIARIES ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 16Θ

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A/CONF.183/2/Add.l English Page 2

PART ONE

DRAFT STATUTE FOR THE INTERNATIONAL CRIMINAL COURT

CONTENTS

Page

PREAMBLE 9

PART 1. ESTABLISHMENT OF THE COURT 10

Article 1. The Court 10

Article 2. Relationship of the Court with the United Nations 10

Article 3. Seat of the Court 10

Article 4. Status and legal capacity 10

PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW 11

Article 5. Crimes within the jurisdiction of the Court 11

Crime of genocide 11

[Crime of aggression] 12

War crimes 14

Crimes against humanity 25

[Crimes of terrorism] 27

[Crimes against United Nations and associated personnel].... 28

[Crimes involving the illicit traffic in narcotic drugs and psychotropic substances] 29

Article 6. [Exercise of jurisdiction] [Preconditions to the exercise of jurisdiction] 30

[Article 7]. Preconditions to the exercise of jurisdiction 30

[Article 8] . Temporal jurisdiction 32

[Article 9] . Acceptance of the jurisdiction of the Court 32

[Article 10] . [[Action by] [Role of] The Security Council] [Relationship between the Security Council and the International Criminal Court] 34 ICC-02/04-14-AnxA 13-02-2007 239/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 239/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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CONTENTS (continued)

Page

Article 11. Complaint by State 35

[Article 12] . Prosecutor 37

[Article 13] . Information submitted to the Prosecutor 37

Further option for articles 6, 7, 10 and 11 38

Article 14. Duty of the Court as to jurisdiction 40

Article 15. Issues of admissibility 40

[Article 16] . Preliminary rulings regarding admissibility 42

Article 17. Challenges to the jurisdiction of the Court or the admissibility of a case 43

Article 18. Ne bis in idem 45

[Article 19] 46

Article 20. Applicable law 46

PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW 48

Article 21. Nullum crimen sine lege 48

Article 22. Non-retroactivity 48

Article 23. Individual criminal responsibility 48

Article 24. Irrelevance of official position 51

Article 25. Responsibility of [commanders] [superiors] for acts of [forces under their command] [subordinates] 51

Article 26. Age of responsibility 52

Article 27. Statute of limitations 53

[Article 28] . Actus reus (act and/or omission) 54

Article 29. Mens rea (mental elements) 55

Article 30. Mistake of fact or of law 56

Article 31. Grounds for excluding criminal responsibility 57 ICC-02/04-14-AnxA 13-02-2007 240/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 240/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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CONTENTS (continued)

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Article 32. Superior orders and prescription of law 59

[Article 33] . Possible grounds for excluding criminal responsibility specifically referring to war crimes 59

Article 34. Other grounds for excluding criminal responsibility 60

PART 4. COMPOSITION AND ADMINISTRATION OF THE COURT 61

Article 35. Organs of the Court 61

Article 36. Judges serving on a full-time basis 61

Article 37. Qualification and election of judges 61

Article 38. Judicial vacancies 64

Article 39. The Presidency 64

Article 40. Chambers 65

Article 41. Independence of the judges 66

Article 42. Excusing and disqualification of judges 67

Article 43. The Office of the Prosecutor 67

Article 44. The Registry 69

Article 45. Staff 70

Article 46. Solemn undertaking 71

Article 47. Removal from office 71

Article 48. Disciplinary measures 72

Article 49. Privileges and immunities 72

Article 50. Salaries, allowances and expenses 73

Article 51. Working languages 73

Article 52. Rules of Procedure and Evidence 73

Article 53. Regulations of the Court 74 ICC-02/04-14-AnxA 13-02-2007 241/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 241/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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CONTENTS (continued)

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PART 5. INVESTIGATION AND PROSECUTION 75

Article 54. Investigation of alleged crimes 75

[Article 55] . Information on national investigations or proceedings ... 80

[Article 56]. Deferral of an investigation by the Prosecutor 80

[Article 57]. Functions of the Pre-Trial Chamber in relation with investigation 81

Article 58. Commencement of prosecution 82

Article 59. Arrest 86

Article 60. Pre-trial detention or release 89

Article 61. Notification of the indictment 91

Further option for articles 58 to 61 93

PART 6. THE TRIAL 99

Article 62. Place of trial 99

Article 63. Trial in presence of the accused 99

Article 64. Functions and powers of the Trial Chamber 103

Article 65. Proceedings on an admission of guilt 105

Article 66. Presumption of innocence 106

Article 67. Rights of the accused 106

Article 68. Protection of the [accused], victims and witnesses [and their participation in the proceedings] 108

Article 69. Evidence 109

Article 70. Offences or acts against the integrity of the Court Ill

[Article 71] . Sensitive national security information 112

Article 72. Quorum and judgement 115

[Article 73]. Reparations to victims 116 ICC-02/04-14-AnxA 13-02-2007 242/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 242/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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CONTENTS (continued)

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Article 74. Sentencing 118

PART 7. PENALTIES 119

Article 75. Applicable penalties 119

[Article 76]. Penalties applicable to legal persons 121

Article 77. Determination of the sentence 122

[Article 76]. Applicable national legal standards 123

[Article 79]. Fines [and assets] collected by the Court 123

PART θ. APPEAL AND REVIEW 125

Article 80. Appeal against judgement or sentence 125

Article 81. Appeal against interlocutory decision 126

Article 82. Proceedings on appeal 127

Article 83. Revision of conviction or sentence 128

[Article 84]. Compensation to a suspect/accused/convicted person 130

PART 9. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE 131

Article 85. General obligation to cooperate 131

Article 86. [Requests for cooperation: general provisions] 131

Article 87. [Surrender] [Transfer] [Extradition] of persons to the Court 133

Article Θ8. Contents of request for [surrender] [transfer] [extradition] 139

Article 89. Provisional arrest 141

Article 90. Other forms of cooperation [and judicial and legal [mutual] assistance] 143

Article 91. Execution of requests under article 90 147

[Article 92] . Rule of speciality 149 ICC-02/04-14-AnxA 13-02-2007 243/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 243/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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CONTENTS (continued)

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PART 10. ENFORCEMENT 151

Article 93. General obligation regarding recognition [and enforcement] of judgements 151

Article 94. Role of States in enforcement [and supervision] of sentences of imprisonment 151

Article 95. Enforcement of the sentence 152

Article 96. Supervision and administration of sentence 153

Article 97. Transfer of the person upon completion of sentence 153

[Article 98] . Limitation of prosecution/punishment for other offences . 154

[Article 99]. Enforcement of fines and forfeiture measures 154

Article 100. Pardon, parole and commutation of sentences [early release] 155

[Article 101]. Escape 156

PART 11. ASSEMBLY OF STATES PARTIES 157

Article 102. Assembly of States Parties 157

PART 12. FINANCING OF THE COURT 160

Article 103. Payment of expenses of the Court 160

Article 104. Funds of the Court 160

Article 105. Voluntary contributions 161

Article 106. Assessment of contributions 161

Article 107. Annual audit 161

PART 13. FINAL CLAUSES 162

Article 108. Settlement of disputes 162

Article 109. Reservations 162

Article 110. Amendments 164

Article 111. Review of the Statute 165 ICC-02/04-14-AnxA 13-02-2007 244/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 244/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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CONTENTS (continued)

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Article 112. Signature, ratification, acceptance, approval or accession 166

[Article 113]. Early activation of principles and rules of the Statute 166

Article 114. Entry into force 166

Article 115. Withdrawal 167

Article 116. Authentic texts 167 ICC-02/04-14-AnxA 13-02-2007 245/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 245/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Option 2

save in respect of documents or information referred to in article 54, paragraph 4 (g), and subject to subparagraph (f) below, requiring the disclosure to the defence of documents or information which are either considered [material] [relevant] to the preparation of the defence, or are intended for use by the Prosecutor at trial or were obtained from the accused;9

(c) providing for the exchange of information between the Prosecutor and the defence, so that both parties are sufficiently aware of the issues to be decided at the trial;

(d) providing [, at the request of either party or a State, or at the instance of the Court on its own volition,] for the protection of the accused, victims and witnesses and of confidential information;

(e) providing [, at the request of either party or a State, or at the instance of the Court on its own volition,] for the protection and privacy of victims and witnesses;

[(f) providing, at the request of either party or a State, or at the instance of the Court of its own volition, for the non-disclosure or protection of documents or information provided by a State the disclosure of which would [endanger] [prejudice] the national security or national defence interests of a State in accordance with criteria to be specified in rules made pursuant to this Statute.]

N.B. Subparagraph· (d), (·) and (f) of paragraph 10 could b· consolidated further.

Article 59

Arrest

1. At any time after an investigation has been initiated, the [Presidency] [Pre-Trial Chamber] may at the request of the Prosecutor issue a. warrant for the pre-indictment arrest of a suspect if there are reasonable grounds10 ll to believe that:

(a) the suspect has committed a. crime within the jurisdiction of the Court ; and

9 [Quaere: definition of "relevant" for the Rules of Procedure and Evidence?] 10 The term "reasonable grounds" was understood to embody objective criteria. 11 Some delegations preferred other terms such as "serious reasons". ICC-02/04-14-AnxA 13-02-2007 246/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 246/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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(b) taking the suspect into custody is necessary to ensure that the suspect does not :

(i) fail to appear for trial;

[(ii) [interfere with or destroy evidence;]"

[(iii) [intimidate] [influence] witnesses or victims;]

[(iv) engage in collusion with accomplices;] or

[ (v) [continue to commit a crime within the jurisdiction of the Court.]13

[The Pre-Trial Chamber may also issue a warrant of judicial supervision in order to place a person under restrictions of liberty other than arrest.]14

(b) In the case of a State Party which has notified the Court under article 8Θ, paragraph 2, that it can surrender pre-indictment, the warrant for the pre-indictment arrest of a suspect shall be deemed to have been withdrawn if [the indictment has not been confirmed] [a post-indictment warrant has not been confirmed] [a post-indictment warrant has not been served] within [30] [60] [90] days of the surrender, or in exceptional circumstances such longer time up to a total of [60] [90] days as the [Presidency] [Pre-Trial Chamber] may allow.

If the Prosecutor decides not to indict the suspect or the [Presidency] [Pre-Trial Chamber] decides not to [confirm the indictment] [not to issue a

12 Some delegations suggested that subparagraphs (ii), (iii) and (iv) could be merged under a more general formulation such as "obstructing or endangering the investigation or the court proceedings". " Some delegations favoured addressing situations in which the accused may be harmed or at risk. Other delegations stated that the accused could be adequately protected under article 68. 14 It was suggested that this provision could be deleted because it is addressed in article 60, paragraph 6. 15 It was suggested that this provision could be moved to article 54, paragraph 10. ICC-02/04-14-AnxA 13-02-2007 247/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 247/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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post-indictment warrant], the Prosecutor shall immediately advise the custodial State of that fact.16

3. "Opening clause":

Option 1

[In the case where no pre-indictment warrant has been obtained,] [Prior to the confirmation hearing,] [As soon as practicable] [after the confirmation of the indictment], the Prosecutor shall seek from the [Presidency] [Pre-Trial Chamber] a [post-indictment] warrant for the arrest and transfer of the accused. The [Presidency] [Pre-Trial Chamber] shall issue such a warrant unless it is satisfied that:

Option 2

Upon confirmation of the indictment, a warrant for the arrest of the accused shall be issued by the Pre-Trial Chamber, unless, having heard the views of the Prosecutor, it is satisfied that:

(a) the accused will voluntarily appear for trial and none of the other factors in paragraph 1 (b) are present]; or

(b) there are special circumstances making it unnecessary for the time being to issue the warrant.

4. The Court11 shall transmit the warrant to any State where the person may be located, along with a request for the provisional arrest, or arrest and [surrender, transfer, extradition] of the person under Part 9.

16 It was suggested that the questions of release and re-arrest could be addressed in another provision of this Statute. 17 The term "Court" is understood to include its constituent organs, including the Prosecutor, as defined in article 35. ICC-02/04-14-AnxA 13-02-2007 248/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 248/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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PART 9. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE1

N.B. Consideration should b· given to interchanging part· 9 and 10.

Article 85

General obligation to cooperate

States Parties shall, in accordance with the provisions of this [Part] [Statute], fully cooperate with the Court3 in its investigation and prosecution of crimes under this Statute. States Parties shall so cooperate without [undue] delay.

Article 86]

[Requests for cooperation: general provisions]

1. Authorities competent to make and receive requests/Channels for communication of requests

1 Articles 86, 88, 89 and 90 contain virtually identical provisions, some of which should be harmonized.

3 "Court" throughout this Part is understood to include its constituent organs, including the Prosecutor, as defined in article 35. Such a provision could be inserted elsewhere in the Statute.

N.B. See N.B. on article 35 (Organ· of the Court).

3 It was suggested that the provisions of article 88, paragraph 4, and article 90, paragraph 8, concerning the protection of witnesses and victims should be combined in a single paragraph in article 86, which would read:

"The Court may withhold, in accordance with article 68, from the requested State [or a State making a request to the Court under article 90, paragraph 7], specific information about any victims, potential witnesses and their families if it considers that this is necessary to ensure their safety or physical and psychological well-being. Any information that is made available to a State under this part shall be provided and handled in a manner that protects the safety or physical or psychological well-being of any victims, potential witnesses or their families."

It was also suggested that the content of such a provision should be considered further. ICC-02/04-14-AnxA 13-02-2007 249/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 249/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Party upon ratification, accession or approval. Such designation and subsequent changes shall be done in accordance with the Rules of Procedure and Evidence.

(b) When appropriate, without prejudice to the provisions of paragraph 1 (a) , requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization. 2. Language of requests4

[The legal effect of such request shall not be diminished if any supporting document ie not in such working language provided that a brief summary of any such document in that working language is also submitted.]

3. Confidentiality of requests from the Court

The requested State shall keep confidential a request and any supporting documents, except to the extent that the disclosure is necessary for execution of the request.

4. Cooperation by non-States Parties'

[ (a) The Court may [call on] [invite] any State not party to this Statute to provide assistance under this part on the basis of [comity,] an ad hoc arrangement, an agreement with such State [or any other appropriate basis].]

[ (b) Where a State not party to this Statute [which has entered into an ad hoc arrangement or an agreement with the Court],6 fails to cooperate with requests under paragraph (a), thereby preventing the Court from performing its duties under this Statute, the Court may make a finding to that effect and refer the matter to [the General Assembly of States Parties]7 [or] [the United Nations General Assembly] [or, where the Security Council referred the matter to the

* The language to be used by States in their replies to the Court is dealt with under article 91.

5 It was suggested that the issue of non-States Parties should be addressed in a separate article 85.

6 It was suggested that a reference to paragraph (a) would cover this concern.

7 It was suggested that the referral be made to a standing committee of the General Assembly of States Parties. This issue needs to be further addressed in Part 4. ICC-02/04-14-AnxA 13-02-2007 250/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 250/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Court,] [to the Security Council] [so that necessary measures may be taken to enable the Court to exercise its jurisdiction].']

5. Cooperation of intergovernmental organizations

6.' States Parties' failure to cooperate [comply]

Where a State Party fails to comply with a request by the Court contrary to the provisions of the Statute, thereby preventing the Court from performing its duties under this Statute, the Court may make a finding to that effect and refer the matter to [the Assembly of States Parties]10 [or] [the General Assembly of the United Nations] [or, where the Security Council referred the matter to the Court] [to the Security Council] [so that necessary measures may be taken to enable the Court to exercise its jurisdiction].ll

N.B. In view of th· length of th· article, the heading· of the paragraph· are retained pending a decision on the text of the article. Consideration may be given to dividing the article into three a· follow· ι

paragraph· 1 to 3;

paragraph· 4 and 5;

paragraph 6.

Article 87

[Surrender] [Transfer] [Extradition] of persons" to the Court

1. The Court may transmit a request for the arrest and [surrender] [transfer] [extradition] of a person, along with the supporting material outlined in

' The question of "necessary measures" has to be further examined.

9 It was suggested that this paragraph should be inserted in article 85.

10 It was suggested that the referral be made to a standing committee of the Council of States Parties. This issue needs to be further addressed in the organization of the Court.

11 The question of "necessary measures" has to be further examined.

13 The term "persons" is understood to include "suspects", "accused" and "convicted persons". [The term "suspect" means a person who is the subject of a pre-indictment arrest warrant.] ICC-02/04-14-AnxA 13-02-2007 251/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 251/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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article 88, to any State on the territory of which that person may be found, and shall request the cooperation of that State in the arrest and [surrender] [transfer] [extradition] of such person. States Parties shall, in accordance with the provisions of this Part [and the procedure under their national law], comply with requests for arrest and [surrender] [transfer] [extradition] without [undue] delay.

[2. The national law of a requested State shall govern the [conditions] [procedure] for granting or denying a request for [surrender] [transfer] [extradition] [except as otherwise provided in this Part].]

[Option 1: No grounds for refusal.]

[Option 2 : A State Party may deny a request for [surrender] [transfer] [extradition] only if:"

(a) with respect to a crime under [article 5 (b) through (e)] [article 5 (e)], it has not accepted the jurisdiction of the Court;

[ (b) the person is a national of the requested State;]14

[ (d) the information submitted in support of the request does not meet the minimum evidentiary requirements of the requested State, as set forth in article 88, paragraph 1 (c);]

(e) compliance with the request would put it in breach of an existing obligation that arises from [a peremptory norm of] general international law [treaty] obligation undertaken to another State.]15

N.B. Th· option· in thi· lubpuagraph tr· not cl««r.

13 There is no agreement on the list of grounds contained in this option.

14 It was suggested that even if a person is a national of the requested State, this does not prevent that State from [transferring] [surrendering] [extraditing] the person to the Court if the latter guarantees that the national in question shall be returned to the requested State to serve the sentence pronounced by the Court (cf. article 94, paragraph 1).

15 It was suggested that the following ground for refusal should be included: when the imposition or the execution of punishment for the offence for which surrender is requested would be barred by reasons prescribed under the law of the requested State if the requested State were to have jurisdiction over the offence. ICC-02/04-14-AnxA 13-02-2007 252/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 252/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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[4. If a request for [surrender] [transfer] [extradition] is denied, the requested State Party shall promptly inform the Court of the reasons for such denial.]

5. Application to the Court to set aside [surrender] [transfer] [extradition] A State Party [having received a request under paragraph 1 may, in accordance with the Rules of Procedure and Evidence1'] [may, in [...] days of receiving a request under paragraph 1], file a written application with the Court to [set aside] [withdraw] the request on specified grounds [including those mentioned in articles 15 and 18]. Pending a decision of the Court on the application, the State concerned may delay complying with the request but shall take appropriate measures [as may be available] to ensure the compliance with the request after a decision of the Court to reject the application. 6. Parallel requests from the Court and State(s) Option 1 (a) A State Party [which has accepted the jurisdiction of the Court] [, if it is a party to the treaty covered by [article 5, paragraph (e),] with respect to the crime,] shall [, as far as possible,] give priority to a request from the Court under paragraph 1 over requests for extradition from other States [Parties]. (b) If the requested State also receives a request from a non-State Party to which it is bound by an extradition agreement for the extradition of the same person, either for the same offence or for a different offence for which the Court is seeking the person's [surrender] [transfer] [extradition], the requested State shall determine whether to [surrender] [transfer] [extradite] the person to the Court or to extradite the person to the State. In making its decision the requested State shall consider all relevant factors, including but not limited to: (i) the respective dates of the requests; (ii) if the offences are different, the nature and gravity of the offences,· (iii) the interests of the State requesting extradition, including, where relevant, whether the offence was committed in its territory and the nationality of the victims of the offence; and (iv) the possibility of subsequent [surrender] [transfer] [extradition] or extradition between the Court and the State requesting extradition.

16 Questions dealing with the consequences of lapse of time will be addressed in the Rules of Procedure and Evidence. ICC-02/04-14-AnxA 13-02-2007 253/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 253/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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Option 2 (a) If the requested State also receives a request from a [State] [State Party] [to which it is bound by an extradition agreement] for the extradition of the same person, either for the same offence or for a different offence for which the Court is seeking the person's [surrender] [transfer] [extradition], the appropriate authority of the requested State shall determine whether to [surrender] [transfer] [extradite] the person to the Court or to extradite the person to the State. In making its decision the requested State shall consider all relevant factors, including but not limited to: (i) whether the extradition request was made pursuant to a treaty;

(ii) the respective dates of the requests; (iii) if the offences are different, the nature and gravity of the offences; (iv) the interests of the State requesting extradition, including, where relevant, whether the offence was committed in its territory and the nationality of the victims of the offence; and (v) the possibility of subsequent [surrender] [transfer] or extradition between the Court and the State requesting extradition. (b) The requested State may not, however, deny a request for the [surrender] [transfer] [extradition] made under this article in deference to another State's request for extradition of the same person for the same offence if the State requesting extradition is a State Party and the Court has ruled the case before it is admissible, and its decision took into consideration the proceedings in that State which gave rise to its extradition request. Option 3 (a) Subject to paragraph (b), a State Party [shall] [may] accord priority to a request by a State over a request by the Court for the extradition, transfer or surrender of a person to the requesting State under the provisions of any existing bilateral or multilateral agreement. (b) A State Party shall however accord priority to requests from the Court over a request by a State where the Court has [positively] determined pursuant to article 15 that the requesting State is unwilling or unable genuinely to carry out the investigation or prosecution of the case for which extradition, transfer or surrender is sought. [7. Proceeding in requested State Where the law of the requested State so requires, the person whose [surrender] [transfer] [extradition] is sought shall be entitled to challenge the request for arrest and [surrender] [transfer] [extradition] in the court of the requested State on [only] the following grounds : [(a) lack of jurisdiction of the Court;] ICC-02/04-14-AnxA 13-02-2007 254/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 254/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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[ (b) non bis in idem; or]

C(c) the evidence submitted in support of the request does not meet the evidentiary requirements of the requested State as set forth in article 88, paragraph 1 (b) (v) and (c) (ii).]]

8. Delayed or temporary [surrender] [transfer] [extradition]

(b) [with the consent of the [Court] [Pre-Trial Chamber] which shall rule after having heard the Prosecutor] postpone the [surrender] [transfer] [extradition] of the person until the completion or abandonment of the prosecution [or completion of service of the sentence].17

[9. Extradite or prosecute obligation1'

(a) In the case of a crime to which article 5, paragraph (e), applies, the requested State [, if it is a party to the treaty in question but has not accepted the Court's jurisdiction with respect to that crime,] shall, where it decides not to [surrender] [transfer] [extradite] the accused to the Court, promptly take all necessary steps to extradite the accused to a State having requested extradition or [at the request of the Court] refer the case [through proceedings in accordance with national laws] to its competent authorities for the purpose of prosecution.

[(b) In any other case, the requested State Party shall [consider whether it can], in accordance with its legal procedures, take steps to arrest and [surrender] [transfer] [extradite] the accused to the Court, or [whether it should take steps to extradite the accused to a State having requested extradition or [at the request of the Court] refer the case to its competent authorities for the purpose of prosecution.]

17 If it is agreed that consent of the Court will be required for postponement, then the last set of brackets can be removed.

18 The text of paragraph 9 (a) and (b) applies if there is a consent regime. If the Court has jurisdiction over core crimes and there is no consent regime, these provisions could be deleted. ICC-02/04-14-AnxA 13-02-2007 255/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 255/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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the competent authorities of the requested State for the purpose of prosecution.]]

[10. Provision of evidence irrespective of [surrender] [transfer] [extradition]

[To the extent permitted under the law of the requested State and] without prejudice to the rights of third parties, all itema found in the requested State [that have been acquired as a result of the alleged crime or] that may be required as evidence shall, upon request, be transmitted to the Court [if the [surrender] [transfer] [extradition] is granted on conditions to be determined by the Court] [even if the [surrender] [transfer] [extradition] of the person cannot be carried out]. [Any rights which third parties may have acquired in the said items shall be preserved where these rights exist. The property shall be returned without charge to the requested State as soon as possible after the trial.]]

N.B.

It would b· mor· appropriât· to d·al with th· i»u·· raised in this paragraph in th· context of article 90 (Other form· of cooperation [and judicial and legal [mutual] «••ietancel).

Consideration may be given to dealing with man» of the detail· in thi· paragraph in the Rule· of Procedure and evidence.

11. Transit of [surrendered] [transferred] [extradited] person19

(a) A State Party shall authorize transportation under its national procedural law through its territory of a person being [surrendered] [transferred] [extradited] to the Court by another State. A request by the Court for transit shall be transmitted in accordance with article 86. The request for transit shall contain a description of the person being transported, a brief statement of the facts of the case and the legal characterization and the warrant for arrest and [transfer] [surrender] [extradition]. A person in transit shall be detained in custody during the period of transit.

[ (b) No authorization is required where air transportation is used and no landing is scheduled on the territory of the State of transit.]

19 It has been suggested that this or other provisions could form the basis for a separate article. In addition, some felt that a number of details set forth in this text would be more appropriately regulated in the Rules of Procedure and Evidence. ICC-02/04-14-AnxA 13-02-2007 256/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 256/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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12. Costs

The costs associated with the [surrender] [transfer] [extradition] of a person shall be borne by the [Court] [requested State] [Court or the requested State depending upon where the cost concerned arises].

N.B. In view of th· length of th· article, th· heading· of th· paragraph· ar· retained. Consideration may be given to dividing the article into ehorter article·, without prejudice to their retention, a· follow·ι

paragraph· 1 and 2;

paragraph· 3 and 4;

paragraph 5;

paragraph 6;

paragraph 7;

paragraph 8;

paragraph 9;

paragraph 10;

paragraph 11;

paragraph 12.

Article 88

Contents of request for [surrender] [transfer] [extradition] "

1. A request for arrest and [surrender] [transfer] [extradition] shall be made in writing. In urgent cases a request may be made by any medium capable of delivering a written record,31 provided that a request shall be confirmed [if necessary] through the channel provided for in article 86. The request shall contain or be supported by:

(a) information describing the person sought, sufficient to identify the person and information as to that person's probable location;

20 Portions of this article might also be provided for in the Rules of Procedure and Evidence rather than in the Statute.

31 Issues relating to the security of this type of transmission will have to be discussed. ICC-02/04-14-AnxA 13-02-2007Ι' 257/312Γ SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 257/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

To my parents, Hans and Joke Sluiter International Criminal Adjudication and the Collection of Evidence: Obligations of States Göran Sluiter

CHOOL OF HUMAN RIGHTS RESEARCH SERIES, Volume 16 -S INTERSENTIA he titles published in this series are listed at the end of this volume. Antwerpen - Oxford - New York

L -Ί

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Chapter 4 Requesting Legal Assistance

2.2 The ICC Below the question will be addressed for each of the organs whether they have been endowed with powers, related to the gathering of evidence,7 which may result in Article 1 of the ICC Statute sets out in broad terms the competence of the ICC, requests for legal assistance. Furthermore, the question will be addressed under what namely that the Court '(...) shall have the power to exercise its jurisdiction over conditions these powers may be exercised, as well as what the limits are thereto. persons for the most serious crimes of international concern (...)'· Just as the Ad Hoc Tribunals, the Court is composed of several organs. According to Article 34 of the 3 THE PROSECUTOR ICC Statute, the Court is composed of the Presidency, an appeals division, a trial division and a pre-trial division, the Prosecutor and the Registry. The powers of these The Prosecutor of the Ad Hoc Tribunals and the Prosecutor of the ICC are both in organs have been regulated in considerably more detail in the ICC Statute than was charge of the investigations of crimes within the jurisdiction of these institutions. The the case with the Ad Hoc Tribunals. Parts 5 and 6 of the ICC Statute, entitled Ad Hoc Tribunals and the ICC have adopted a mainly adversarial criminal procedure, 'investigation and prosecution' and 'the trial' respectively, are the most crucial parts hereby assigning the task of evidence gathering in principle to the parties of the of the Statute when it comes to identifying the powers of the various organs. In procedure.8 It is undisputed that the Prosecutor is in charge of his own investigation, addition to these parts, Part 7, entitled 'penalties' and Part 8, entitled 'appeal and having no higher judicial authority, as is the case in some civil law countries.' With a revision' also endow some of the organs with specific powers. Finally, Part 2, entitled view to this mandate, the Prosecutor has been endowed with important investigative 'jurisdiction, admissibility and applicable law', contains important provisions which and prosecutorial powers, which may 'trigger' requests for assistance by the attribute powers to organs of the Court with respect to initiation of investigations, Prosecutor to States. An overview of these powers will be given below and the exercise of jurisdiction, and admissibility decisions. conditions and limits to the exercise of these powers will be examined.

The Statute is rather confusing in the sense that it does not always attribute powers to 3.1 Overview of Attributed Powers a specific organ, but also to the Court as a whole. Since 'the Court' is an abstract entity that can carry out activities only by means of its organs, a close analysis of the 3.1.1 The Ad Hoc Tribunals Statute is required to find out which entity - or entities - may exercise the power attributed to 'the Court'. This analysis is especially necessary when under Part 9 the The powers of the Prosecutor required to conduct investigations and initiate Court is empowered to address requests for assistance to States. The attribution to the prosecutions can be found in Article 18 of the ICTY Statute and identical Article 17 Court of the power to address itself to a State for assistance does not in itself vest the of the ICTR Statute. Court with substantive investigative and prosecutorial powers. It is the intention of According to Article 18 (2) of the ICTY Statute - Article 17 (2) of the ICTR the drafters to establish, in Part 9, a legal relationship between States and 'the Court' Statute - the Prosecutor shall have the power to question suspects, victims and as an international legal person, and not between States and organs of the Court. witnesses, to collect evidence and to conduct on-site investigations, hi carrying out Thus, when, under Part 9, 'the Court' is empowered to issue requests for legal these tasks, the Prosecutor may, as appropriate, seek the assistance of State assistance,6 this is inconclusive as to which organ may issue a particular request for authorities concerned. Consequently, the power to request assistance does not only assistance. It does imply, however, that every organ of the Court may request the follow from Article 29 of the ICTY Statute - Article 28 of the ICTR Statute -, which assistance of States in the lawful exercise of its powers. In order to determine implies that every organ of the Tribunal may issue requests for assistance to States in whether or not an organ has acted in the lawful exercise of its powers, one should - the lawful exercise of their powers. Article 18 (2) of the ICTY Statute - Article 17 again - identify the powers attributed to the various organs and examine the (2) of the ICTR Statute - explicitly empowers the Prosecutor to request State co- conditions governing their exercise. This is regulated in other Parts of the Statute operation. The provision refers to 'national authorities', indicating that the Prosecutor than Part 9. In particular Part 5, dealing with investigation and prosecution, is relevant here. As a result, exercise of powers regarding arrest and surrender, as well as deferral of proceedings and the enforcement of sentences are not within the focus of study. See, on the nature of the international criminal procedure, the previous Chapter, paragraph 4.1. The ICC is endowed with a Pre-Trial Chamber, incorporating some civil law elements into the See Article S7 (1) (a) of the ICC Statute, which stipulates - in part -: '[t]he Court shall have the procedure, but the Pre-Trial Chamber by no means acts as a civil \swjuge d'instruction, heading authority to make requests to States Parties for cooperation. (...)'· the investigation.

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Chapter 4 Requesting Legal Assistance

may choose the most appropriate organ of the State to assist in the investigations.10 It system of criminal justice. In this sense Rule 40 can be considered the lawful claim to follows, a fortiori, from this provision that the Prosecutor can request States for an implied power.13 assistance. From the power to request the most appropriate State organ for assistance does, however, not follow a corresponding duty for the organ to co-operate; the duty In addition to the above-mentioned powers, which may require direct assistance by to co-operate rests solely with the State as an international legal person." States to the Prosecutor, the Prosecutor also possesses the power to apply to (a Judge Rule 39 of the RPE repeats, but to some extent also supplements, the powers of of) the Trial Chamber for issuing certain requests or orders to States on her behalf. Article 18. Rule 39 (ii), for example, authorises the Prosecutor to 'undertake such This power has been attributed to the Prosecutor by virtue of Article 19 (2) of the other matters as may appear necessary for completing the investigation and the ICTY Statute and Article 18 (2) of the ICTR Statute, and is further implemented and preparation and conduct of the prosecution at the trial, including the taking of special supplemented through Rules 54 and 39 (iv) of the ICTY and ICTR RPE.14 Reading measures to provide for the safety of potential witnesses and informants'. On the these provisions together, the Prosecutor may, at any stage of the proceedings, apply basis of Rule 39 (iii), the Prosecutor may, in addition to seeking assistance from State to the judicial branch for orders and warrants 'as may be necessary for the purposes authorities, also seek assistance from any relevant international body, including of an investigation or for the preparation or conduct of the trial'. As will be INTERPOL. With respect to those powers embodied in Rule 39 which are not part of demonstrated below, in the paragraph concerned with the powers of the 'judicial the Statute, in particular the open-ended power to undertake such other matters as branch', these applications may result in the issuance of requests or orders for appear necessary for the investigation, the question arises as to what extent such assistance. attribution is in conformity with the constituent document, the Statute. Morris and Scharf express the view that this attribution by the RPE reflects the notion of implied 3.1.2 The ICC powers, stating that the implied powers of the Prosecutor ultimately flow from the relevant provisions of the Statute.12 Indeed, one can easily tie the powers attributed The powers explicitly attributed to the Prosecutor, mainly in the field of by Rule 39 of the ICTY and ICTR RPE to the broad powers already conferred upon investigations, capable of triggering State co-operation, can be found in Part 5 of the the Prosecutor by Article 18 of the ICTY Statute and Article 17 of the ICTR Statute. ICC Statute, in Articles 15 and 54. As was already mentioned, Part 9 does not The question arises as to whether other additional powers attributed to the Prosecutor provide for substantive powers of the organs of the Court, but attributes to each organ by the RPE can stand the test of the implied powers doctrine. Rule 40 of the ICTY the power to request assistance in the lawful exercise of the powers attributed to them and ICTR RPE attributes to the Prosecutor the power to request, in cases of urgency, in other parts of the Statute. from States the provisional arrest of an accused or the seizure of physical evidence. Article 15 (1) empowers the Prosecutor to initiate investigations proprio motu on The power to request a suspect's provisional arrest cannot be tied to the powers the basis of information on crimes within the jurisdiction of the Court. With a view to attributed to the Prosecutor by Article 18 (2) of the ICTY Statute and Article 17 (2) initiating such investigations, the Prosecutor possesses under Article 15 (2) the power of the ICTR Statute. This power - to be exercised in situations of urgency only - to seek additional information from States, organs of the United Nations, inter- may, however, be considered as being essential to the performance of the Prosecutor's tasks. More in a broad sense, the attribution of more far-reaching powers in situations of urgency is essential for the effective functioning of every 13 It should be noted that from the perspective of legal protection there exists a great difference between Rule 40 of the ICTR RPE and Rule 40 of the ICTY RPE. Rule 40 of the ICTR RPE contains a subparagraph D, stipulating as follows: 'The suspect shall be released if (i) the 10 Rule 39 of the ICTY and ICTR RPE further expand the addressees of requests for assistance to Chamber so rules; or (ii) the Prosecutor fails to issue an indictment within twenty days of the 'any relevant international body', including INTERPOL. transfer.' Rule 40 of the ICTY RPE does not contain a similar provision and as a result makes it 11 Blaskicsubpoena decision, A. Ch., para. 42: '(...) Article 18, paragraph 2, envisages the power of possible that the highly undesirable situation occurs that a person continues to be in detention at the Prosecutor to call upon a particular State official to lend assistance for the Prosecutor's the national level for a considerable period of time, without any judicial intervention. Not all investigations. It would be fallacious to infer from a provision which simply lays down the power national legal systems, it should be noted, offer adequate protection in this respect. to seek assistance from a State official, the existence of an obligation for such State official to co- 14 Rule 39 (iv) reads as follows: operate. It follows from Article 18, paragraph 2, that the State cannot prevent the Prosecutor from 'request such orders as may be necessary from a Trial Chamber or a Judge.' seeking the assistance of a particular Stale official. This, however, does not mean that the Rule 54 provides as follows: particular State official has an international obligation to provide assistance. This obligation is 'At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, only incumbent upon the State. ' summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an 12 Morris and Scharf (1995), p. 193. See on implied powers, Chapter 2, paragraphs 2.2.2 and 3.2.2. investigation or for the preparation or conduct of the trial.'

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Requesting Legal Assistance Chapter 4

governmental or non-governmental organisations or other reliable sources. Article 54 Article 54 (3) sets out other powers of the Prosecutor. The broad power to collect and examine evidence will in practice trigger most requests for State co-operation.17 is the central provision within the ICC Statute, as far as the powers of the Prosecutor during the investigation are concerned. It is entitled 'duties and powers of the Account should further be taken of Article 54 (3) (c) which makes explicit what was 15 already assumed on the basis of Article 87 (1) (a), providing that the Court may issue Prosecutor with respect to investigations'. The powers of the Prosecutor are requests for assistance: the Prosecutor may seek assistance of States in accordance contained in the second and third sections of Article 54, which provide as follows: with its competence and mandate. A novel power, especially compared to the legal 2. The Prosecutor may conduct investigations on the territory of a State: framework of the Ad Hoc Tribunals, is the Prosecutor's treaty-making power, with a (a) In accordance with the provisions of Part 9; or view to facilitate State co-operation (Article 54 (3) (d)). It enables the Prosecutor to (b) As authorized by the Pre-Trial Chamber under article 57, paragraph 3 (d). secure co-operation from States non-parties and should be read in connection with 3. The Prosecutor may: (a) Collect and examine evidence; Article 87 (5) (a) of the ICC Statute, providing that the Court may invite States non- (b) Request the presence of and question persons being investigated, victims and parties to co-operate. witnesses; (c) Seek the cooperation of any State or intergovernmental organization or arrangement in In addition to the direct powers, capable of requesting State co-operation, the accordance with its respective competence and/or mandate; Prosecutor also possesses the power to trigger the powers of the Chambers, (d) Enter into such arrangements or agreements, not inconsistent with this Statute, as may especially the Pre-Trial Chamber, to issue legal assistance requests to States. be necessary to facilitate the cooperation of a State, intergovernmental organization or Pursuant to Article 57 (3) (a), the Pre-Trial Chamber may, at the request of the person; Prosecutor, issue such orders and warrants as may be required for the purpose of an (e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of investigation. Furthermore, in accordance with Article 57 (3) (d), the Pre-Trial generating new evidence, unless the provider of the information consents; and Chamber may authorise the Prosecutor to conduct on-site investigations without (f) Take necessary measures, or request that necessary measures be taken, to ensure the having secured State consent.18 confidentiality of information, the protection of any person or the preservation of evidence. 3.1.3 Evaluation According to Article 54 (2) the Prosecutor may conduct investigations on the territory of a State, on the condition that this is done in accordance with the relevant There is a striking similarity between the powers of the ICC Prosecutor and those of provisions of Part 9, or if this is authorised by the Pre-Trial Chamber under Article the Prosecutor of the Ad Hoc Tribunals. 57 (3) (d). The power to conduct on-site investigations is attributed by Article 54 (2) On the basis of Article 87 (1) (a) of the ICC Statute, which provides explicitly of the ICC Statute, but its exercise is further regulated and conditioned by Article 57 that the Court shall have the authority to make requests to States parties for co- (3) (d) and Article 99 (4) of the ICC Statute.16 operation, the Prosecutor, as an organ of 'the Court', has the power to request State co-operation in the lawful exercise of his tasks. Although Article 87 (1) (a) of the ICC Statute goes into more detail than Article 29 of the ICTY Statute and Article 28 of the ICTR Statute, the latter provisions also assume the existence of powers of the Tribunal organs to request State co-operation where this is necessary for the lawful 15 The duties are set out in Article 54 (1) and they relate essentially to the interests and personal circumstances of victims and witnesses, as well as the rights of persons arising under this Statute, exercise of the powers assigned to them. Yet, both Article 18 (2) of the ICTY Statute as set out Tor example in Article 55. Article 54 (I) (a) obliges the Prosecutor to extend the - Article 17 (2) of the ICTR Statute - and Article 54 (3) (c) of the ICC Statute investigation to cover all facts and evidence relevant to an assessment of whether there is criminal explicitly empower the Prosecutor to seek State co-operation. There can be therefore responsibility under this Statute, and in doing so, investigate incriminating and exonerating no doubt that the Prosecutor may request State co-operation in the exercise of the circumstances equally. The objective of this provision is to prevent the investigation and prosecution of only a limited number of suspects of a certain act, in order to prevent powers attributed. discrimination in ihe ensuing indictments. As a result, although the Prosecutor is the dominus litis, he has no unfettered discrétion in adopting its prosecutorial policy. This is a clear difference from the legal framework of the Ad Hoc Tribunals, where no such duties are explicitly imposed upon 17 The collection of evidence, in particular the questioning of persons, has been the object of further the Prosecutor. For a commentary to Article 54, see Bergsmo and Kruger, in Triffterer (1999), pp. 715 et seq. regulation in the ICC Draft Rules of Procedure and Evidence; see Draft Rules 111 and 112. 16 See Chapter 8 on on-site investigations. 18 This authorisation is subjected to important conditions; see Chapter 8, paragraph 4.2.2. 107 106 ICC-02/04-14-AnxA 13-02-2007 261/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 261/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

Chapter 4 Requesting Legal Assistance

s standards focused in this case on the duties of the Prosecutor to ensure respect 4.1 Requesting Legal Assistance Proprio Motu: Overview of Attributed Powers lie rights of a suspect and an accused44 However, 'due diligence standards', d on general principles of law, could be used by the Tribunals to develop rules of 4.1.1 The Ad Hoc Tribunals luct for the Prosecutor that go beyond the protection of individual rights. Ihe Prosecutor of the Ad Hoc Tribunals has demonstrated awareness of the The powers of the judicial branch to issue requests for assistance to States on its own icability of general principles of criminal procedure governing her conduct For behalf have not been attributed to them by the Statute. Article 19 (2) of the ICTY nple, in a Rule This application, related to the access of the Prosecutor to Kosovo Statute and Article 18 (2) of the ICTR Statute only provide for the possibility of the induct investigations, the Prosecutor expressed herself the view that she could issuance of orders and warrants at the request of the Prosecutor. The Judges 45 nitiate investigations arbitrarily or capriciously. Hereby she acknowledged the themselves considered this a necessary power for the effective functioning of the icability of these general principles to her conduct. Tribunals and have provided for it in the RPE. Rule 54 of the ICTY and ICTR RPE, based on and expanding Article 19 of the ICTY Statute and Article 18 of the ICTR IE JUDICIAL BRANCH Statute, authorises a Judge or Trial Chamber to proprio motu issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the judicial branch includes all the Chambers, Pre-Trial, Trial and Appeals, as well purpose of an investigation or for the preparation or conduct of the trial.46 idividual Judges, representing the Chambers, such as the Article 19 ICTY In addition to Rule 54, another provision attributes proprio motu powers to the ite-Judge (Article 18 of the ICTR Statute), and the President. In this section I judicial branch, which could trigger requests for assistance. Rule 98 of the ICTY and ise to refer to the judicial branch as a whole, because requests for assistance may ICTR RPE, entitled 'power of Chambers to order production of additional evidence', sued by the judicial branch acting in a number of different guises. allows a Trial Chamber to summon witnesses proprio motu and order their Jnder the law of criminal procedure of the Ad Hoc Tribunals and the ICC, there attendance. Although this provision appears to envisage the issuance of a summons lasically two methods for the judicial branch to request legal assistance. First of directly addressed to an individual, it also implies - if appropriate - the power to n spite of the mainly party-dominated procedure, the judicial branch has been issue a request for assistance to a State to obtain a witness's attendance.47 mted the power to conduct investigations proprio motu and to issue requests for Having in mind the adversarial procedure before the Ad Hoc Tribunals, it will tance to that effect. Second, the judicial branch has the power under the Statutes not come as a surprise that the 'judicial branch' has rarely made use of the proprio ;ue requests for assistance on the application of either party, motu powers attributed to it by the RPE, in the sense that it has triggered a request for ielow these two roles will be examined separately. With respect to each of these legal assistance.48 , the conditions under which a request for assistance may be issued will be /sed.

46 The reference to both Judge and Trial Chamber indicates that orders and warrants may be issued by a single Judge during an investigation or by a Trial Chamber once it is seized of a case following the submission and confirmation of an indictment. See Morris and Scharf (1998), p. 457. U is self-evident that a Trial Chamber, dealing with a case, is in a better position to exercise proprio motu powers than the 'pre-trial' Judge, who is highly dependent - even exclusively dependent on applications made to him. Although not specifically mentioned in Rule 54, the Appeals Chamber is covered by this provision. This follows from Rule 107, which stipulates that the rules of procedure and evidence that govern proceedings in the Trial Chamber shall apply mutatis mutandis to proceedings in the .ee id., para. 92: '(...) once the Prosecutor has set this process in motion, she is under a duty to Appeals Chamber. See Jones (2000), p. 447. nsure that, within the scope of her authority, the case proceeds to trial in a way that respects the 47 The relationship between Rule 54 and Rule 98 is one of the general to the specific. At first ights of the accused.' glimpse, the content of Rule 98 seems to be covered by the broad language of Rule 54. However, •ee Request by the Prosecutor, Pursuant to Rule This (B), that the President Notify the Security Rule 54 covers mainly the phase following the confirmation of the indictment, whereas Rule 98 is Council that Federal Republic of Yugoslavia Has Failed to Comply with Its Obligations under used during trial to supplement the evidence presented by the parties. Article 29, 1 February 1999, para. 11: 'This decision [to initiate an investigation] would be 48 Rule 98 has been invoked by ICTY Trial Chambers to summon witnesses in the KupreSkid case ubject to review only on the ground that it was arbitrary and capricious. To conclude the decision and in the BlaSkiccïse (Witness Summons by the Trial Chamber pursuant to Rule 98 of the Rules /as arbitrary and capricious, the reviewer would have to find that no reasonable person could have of Procedure and Evidence, Prosecutor v. Kupreikié and others, Case No. ΓΓ-95-16, T. Ch. II, 30 cached this conclusion. Such is not the case here.' September 1998, and in the Blaskie case (IT-95-14) I mention Decision of Trial Chamber I

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Chap ter 4 Requesting Legal Assistance

4.1.2 The ICC Chamber, capable of triggering State co-operation. It should be pointed out that the proprio motu power of Rule 98 of the ICTY and ICTR RPE is confined to ordering The ICC has at some points a less adversarial model of criminal procedure than the the attendance of additional witnesses. Ad Hoc Tribunals. One would expect to see this reflected in more extensive proprio motu powers. 4.2 Requesting Legal Assistance Proprio Motu: Conditions of Exercise Article 56, dealing with the so-called unique investigative opportunity, authorises the Pre-Trial Chamber to preserve evidence when a 'unique investigative 4.2.1 The Ad Hoc Tribunals opportunity' presents itself. According to Article 56 (3) (a) of the ICC Statute, it can take measures on its own initiative, when the Prosecutor fails to request such Rule 54 of the ICTY and ICTR RPE is framed in broad terms, granting the Judge or measures. This power of the Pre-Trial Chamber is more familiar to the civil law Chamber extensive powers. All that is required is that the issuance of the order or model, where investigations may take place under judicial supervision. It must be warrant is 'necessary for the purposes of an investigation or for the preparation or borne in mind, however, that the Pre-Trial Chamber does not - contrary to the civil conduct of the trial'. Below we will see that the judicial branch has provided for a test \awjuge d'instruction - 'lead' the investigation.4' of necessity with respect to applications made under Rule 54 by the Prosecutor and Outside the context of a unique investigative opportunity the Pre-Trial Chamber the defence.51 The same test should be applicable to the exercise of powers proprio may, in principle, not request the co-operation of a State on its own initiative. The motu by the Judges pursuant to Rule 54, although it has to be admitted that the powers set out in Article 57, in particular Article 57 (3) (c) authorising the Pre-Trial Judges may relax this test when applied to themselves. Chamber inter alia to provide for the preservation of evidence, are attributed to This brings us to the point that Rule 54 of the ICTY and ICTR RPE in fact enforce a number of other provisions in the Statute, such as Article 68, Article 18 (6) attributes far-reaching powers to a Judge, which are not subject to any form of and even Article 56.50 The powers attributed by Article 57 may thus not be invoked review. The concern regarding the extensive and unlimited powers of Rule 54 has independently from the aforementioned provisions, and Article 57 does, in itself, not been expressed in general by Morris and Scharf. They argued that this Rule should attribute the power to the Pre-Trial Chamber to take measures, including requests for not enable a Judge to issue such orders which give rise to binding obligations for assistance, on its own initiative. States and individuals in the absence of a reasonable basis for doing so.52 More The ICC Trial Chambers possess, by virtue of Article 64 (6) (a) and Article 61 precisely, the 'standard of reason' would mean the application of international law, (11) of the ICC Statute, the same powers as the Pre-Trial Chamber. In addition to including human rights law and general principles of law of criminal procedure, as these powers, it is important to note that the Trial Chamber may pursuant to Article can be derived from national systems. Like the Prosecutor, the judicial branch is 64 (6), in performing its functions prior to trial or during the course of a trial, require bound in its activities by these sources of (international) law. the production of evidence as well as the attendance and testimony of witnesses. In exercising that power, it is explicitly provided for in Article 64 (6) (b) that the 4.2.2 The ICC Chamber may obtain the assistance of States. This provision exceeds Rule 98 of the ICTY and ICTR RPE and attributes far-reaching proprio motu powers to the The proprio motu powers of the ICC judicial branch appear to be considerably more circumscribed than those of the Judges of the Ad Hoc Tribunals under Rule 54. The powers attributed to the Pre-Trial Chamber to take proprio motu measures to Summoning Mi. Robert Stewart as a Wimess of the Trial Chamber, 13 May 1999; Decision of preserve evidence under Article 56 are subject to a number of conditions. According Trial Chamber I to Call General Enver Hadzihasanovic as a Witness of the Trial Chamber, 21 to Article 56 (3) (a) of the ICC Statute measures may only be taken by the Pre-Trial May 1999; Decision of Trial Chamber I to Call General Milivoj Petkovic as a Wimess of the Trial Chamber, 21 May 1999; Decision of Trial Chamber I to Call Colonel Serif Patkovic as a Witness Chamber if the Prosecutor has not sought these measures and if they are required to of the Trial Chamber, 21 May 1999; Decision of Trial Chamber I to Call Colonel Amir Kubura as preserve evidence that the Pre-Trial Chamber deems essential for the defence at trial. a Witness of the Trial Chamber, 21 May 1999; Decision of Trial Chamber I to Call Colonel Asim An important potential limitation is the opportunity for the Prosecutor to appeal the Koricic as a Wimess of the Trial Chamber, 21 May 1999). However, all these summonses were 'proprio motu activities' of the Pre-Trial Chamber, pursuant to Article 56 (3) (b). addressed directly to the witnesses and did not trigger requests for legal assistance to States. On State co-operation and testimonial evidence, sec Chapter 7. 49 Article 56 (3) (b) intends to reinforce the role of the Prosecutor, by allowing him to appeal against the decision of the Pre-Trial Chamber to act on its own initiative. 51 See below paragraph 4.7. so See commentary by Guariglia and Harris, in Triffterer (1999), p. 749. 52 Morris and Scharf ( 1998), p. 457.

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Requesting Legal Assistance Chapter 4

Apparently, protagonists of an adversarial system were not prepared to attribute to good reason the Judges deemed it necessary for the functioning of the Tribunals that the Pre-Trial Chamber the power to take a wide range of measures on its own behalf both parties can apply for orders and warrants at all stages of the proceedings, without some form of supervision.53 including prior to the confirmation of the indictment. As far as the Trial Chamber is concerned, Article 64 (6) of the ICC Statute, empowering the Chamber to order the production of (additional) evidence, contains 4.3.2 Relevant Provisions - The ICC two conditions. This production of evidence has to be necessary and has to be done in the performance of the Trial Chamber's functions, as assigned to it by the Statute. Under Article 57 (3) (a) of the ICC Statute the Pre-Trial Chamber has the power to In addition to these express conditions, the activities of the judicial branch of the issue, at the request of the Prosecutor, such orders and warrants as may be required ICC are governed by other sources of law, as set out in Article 21 of the ICC for the purposes of an investigation. Upon request of the 'defendant', the Pre-Trial Statute.54 hi the hierarchy of these sources, human rights occupy the highest place, Chamber has been attributed the power to issue such orders, including the measures followed by the 'primary legal framework', Statute and RPE, treaties, customary described in Article 56, or seek such co-operation pursuant to Part 9 as may be international law, and general principles of law.55 necessary to assist the person in the preparation of his or her defence (Article 57 (3) (b)).56 43 Issuance of a Request for Assistance at the Application of the Prosecutor or It has already been mentioned that the Trial Chambers and the Appeals Chamber the Defence may also exercise these powers of the Pre-Trial Chamber.57 Like Rule 54 of the ICTY and ICTR RPE, Article 57 (3) of the ICC Statute does The most important role of the judicial branch with respect to legal assistance not limit the right to apply to the Pre-Trial Chamber to any particular part of the concerns the issuance of requests as applied for by the Prosecutor or the defendant proceedings. First of all an overview of the relevant provisions will be given below. Then, the questions of admissibility of applications and conditions of exercise will be 4.4 Admissibility of Applications addressed. The 'application' procedure is - although not explicitly provided for in the relevant 4.3.1 Relevant Provisions - The Ad Hoc Tribunals provisions -, in principle, only to be used in two situations. First, when the defendant or Prosecutor has sent a direct request for assistance to a State, but that State refuses Article 19 (2) of the ICTY Statute and Article 18 (2) of the ICTR Statute empower to co-operate, he may turn to a Judge or Chamber to re-issue the request on his the pre-trial Judge to issue orders and warrants at the request of the Prosecutor, upon behalf. In the case of the Ad Hoc Tribunals, the request may then turn into an order. :he confirmation of an indictment. Rule 54 of the ICTY and ICTR RPE expands the Secondly, applying for certain requests is, in certain cases, mandatory because of the scope of application of these provisions considerably. Rule 54 allows a Judge or Trial nature of the request and the measures involved. In this respect one could think of the Chamber to issue orders and warrants, at the request of either party. It does not application for an arrest warrant. These, and other, measures require judicial ;ontain the reference to the 'confirmation of the indictment', set out in Article 19 of intervention. Jie ICTY Statute and Article 18 of the ICTR Statute. Consequently, at all stages of In the following two sub-paragraphs I will concentrate on each of these situations Jie proceedings may either of the parties apply to a Judge or Chamber (including separately. Appeals Chamber) to issue a request for assistance. The 'expansion' of the scope of ipplication of Article 18 (2) of the ICTR Statute and Article 19 (2) of the ICTY statute through the RPE may be considered the exercise of an implied power. With

>3 Guariglia in this respect says that '[sjubparagraph (b) was included to address the concerns of some delegations that feared that an unjustified or excessive intrusion of the Pie-Trial Chamber 56 Further implemented by ICC Draft Rule 116. The 'defendant' does not exist under Articles?, could jeopardize the investigation of crimes within the jurisdiction of the Court.' See Guariglia, in which speaks of the 'person who has been arrested or has appeared pursuant to a summons under Triffterer(1999),p. 741. article 58'. This means that a person may not apply under Article 57 until he has been brought into >4 Sec Chapter 2, paragraph 3.2.3. the custody of the ICC. I will continue to refer to this person as the defendant 55 Ibid. 57 See above paragraph 4.1.2.

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Informal expert paper Fact-finding and investigative functions of the Office of the Prosecutor, including international co-operation

Informal expert paper:

Fact-finding and investigative functions of the office of the Prosecutor, including international co-operation

Contents

I. Introduction 2 11. General observations 3 Experiences of the ad hoc Tribunals 3 Some organisational Measures 4 III. Preliminary examination 5 Applicability of Part 9 of the Statute 5 Narrow interpretation 6 Broad interpretation 6 Preferred interpretation 6 Receiving information and testimonies related to alleged violations and admissibility 7 IV. Fact-finding, investigation, and admissibility procedures under Articles 18 and 19 8 General provisions 8 Article 15 9 Article 18 9 Article 19 9 Provisional investigative measures 10 V. Investigation 10 The relationship between the Prosecutor and State authorities under the ICC Statute '1'he basic features 11 Application of Article 93 12 Application of Article 99(4) 14 Application of Article 57(3) 16 Specific investigative measures 16 Interviewing witnesses 16 Arrests and surrender 17 VI. Enhanced co-operation 19 Security Council referral 19 Voluntary co-operation by the States Parties 20 Voluntary co-operation by States not party to the ICC Statute and with intergovernmental organisations 21 VII. Issues for future consideration 22 ICC-02/04-14-AnxA 13-02-2007 265/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 265/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

Informal expert paper l-'act-finjing und investigative funcliimi of the Office of the Prosecutor, including international co-operation

Introduction

1. The regime governing international co-operation in the fact-finding and investigative functions of the Office of the Prosecutor is complex and raises legal and practical questions essential to the effective functioning of the International Criminal Court. 2. With a view to contributing to timely reflection on this critical matter, and in order to prepare some ideas on potential solutions for the consideration of the Prosecutor, a consul- tative process among a select group of experts was initiated by the Director of Common Services of the ICC in January 2003. The group was invited to prepare a written analysis of those potential problems in the international co-operation regime particularly relevant to the fact-finding and investigative functions of the Office of the Prosecutor. 3. The members of the group who have prepared this informal paper are as follows: Mr. Rruce liroomhall, Senior Legal Officer for International Justice, Open Society Institute; Assistant Pro- fessor of International Law, Central European University, Budapest; Mr. Hakan l-'riman, Deputy Director, Swedish Ministry of Justice; former Associate Judge of Appeals; Mr. Laurent (irosse, Chief Counsel and Director, Legal Counsel's Office; ICPO-Interpol; General Secre- tariat; Dr. Claus Kress, LL.M. (Cantab.), Senior Research Fellow, Department of Foreign and International Criminal Law, University of Cologne, Member of the German delegation to the Rome Conference and to the Preparatory Commission; Ms. Susan Lamb, Legal Adviser, Office of the Prosecutor, International Criminal Tribunal for the For- mer Yugoslavia (ICTY); Ms. Kim I'rost, Head Criminal Law Section; Deputy Director, Legal and Constitutional Affairs Divi- sion, Commonwealth Secretariat; Mr. David Si·heffer, Visiting Professor of Law, Georgetown University Law Center, Washington, D.C.; Dr. Gi'/ran Sluiter, Lecturer in International Law, Utrecht University; Judge at the Utrecht District Court (Criminal Division); Dr. I'ladimir Tochilovsky, Trial Attorney, Office of the Prosecutor, International Criminal Tribunal for the For- mer Yugoslavia (ICTY), formerly representative of the ICTY to the Preparatory Commission for the International Criminal Court. All authors contributed to this paper in their personal capacity. The views expressed in this paper do not necessarily represent the views of the organisations with which the authors are affiliated.

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Informal expert paper Fuel-finding and imesligative functions of the Office oj'the I'roseculor, including international co-operation

II. General observations

faperiences of the ad hoc Tribunals 4. Subject only to the limits prescribed by the Statute, unrestricted access to all forms of evidence by the ICC Prosecutor and the full co-operation of States is vital to the successful and fair functioning of the International Criminal Court. 5. The experience of the ad hoc Tribunals has proved that even with its far-reaching powers based on Chapter VII of the UN Charter (expressed inter cilia through Article 29 of the ICTY Statute and Article 28 of the ICTR Statute, Rule Ibis (b) in conjunction with Rule 39(iii), and Rule 54bis of the ICTY Rules of Procedure and Evidence), the Prosecutor of the Tribunals has had to surmount reluctance and even opposition from some States in order to ensure their co-operation. It has mainly been diplomatic support from key governments, the Security Council and the European Union that has ensured the co-operation of reluctant States with the Tribunals. 6. The Tribunals have had to deal with restrictions imposed on the powers of the Prose- cutor to interview witnesses by national officials' threat to use national security legislation to prosecute those willing to testify before the Tribunal. There have been attempts to treat the Prosecutor's requests for documents as requests for physical access to records that require search warrants, etc. In some instances, States have refused to provide assistance on the pretext that the State does not have a special domestic law on co-operation with the Tri- bunal. Even where such legislation exists, other States have adopted a restrictive construction of it (for instance, by refusing to countenance co-operation with the ICTY-OTP by any other official organ other than those expressly mentioned in the law on co-operation itself). 7. The Prosecutor of the ICC, whose powers are significantly weaker than those of his ad hoc Tribunals' counterpart, is likely to encounter similar unwillingness of States to cooperate. Such lack of co-operation from States could render the Prosecutor incapable of proceeding with critical investigations. While recognising that, in such circumstances, political support from States Parties will be vital, this paper addresses some legal means available to the ICC Prosecutor to enhance the efficiency of prosecutions through international co-operation. 8. The ICC Prosecutor will be able to undertake investigative steps on the territory of a State largely through that State's co-operation. This limitation upon the Prosecutor's powers, while adopted as a compromise in the diplomatic negotiations, may ultimately impede the effectiveness of investigations. In order to reduce the impact of this limitation, it will frequently be necessary for the Prosecutor to negotiate access to a State's territory and where necessary, try and obtain the maximum benefit possible from the provisions of the Statute through their liberal interpretation and application in practice. 9. In addition to the powers explicitly attributed to him in the Statute, the ICC Prosecu- tor may on occasion invoke implied powers, i.e. the powers that are essential to the performance of the Prosecutor's duties, but which are not spelled out in the Statute or Rules. However, the actual success of this approach will depend, initially, on its acceptance by States and ultimately by the ICC Chambers. Indeed, the Prosecutor will have to be extremely cautious in invoking implied powers since, in contrast to the ad hoc Tribunals' legal frameworks, the ICC Statute and Rules set out and regulate in detail the powers of the OTP. Invoking implied powers might therefore be more likely to be regarded as ultra vires. Indeed, even before the ad hoc Tribunals, the doctrine of implied powers has been resorted to only infrequently in its case law. Nevertheless, the effet utile doctrine may be utilised

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Informal expert paper ^act-finding and imvstigutive functions of the Ojfice of the Priiseculor, including international co-operation

wherever there is a perceived risk that a particular interpretation would ensure that the ICC Prosecutor's express powers could be stultified. 10. Furthermore, Article 51(2) of the ICC Statute offers the Prosecutor the option of pro- posing amendments to the Rules. The experience of the ad hoc Tribunals illustrates that Rule-amendment has been a fruitful source of extension of the Tribunal's powers, both express and implied (for example, Rule 59hi.i, which enabled arrest warrants thenceforth to be transmitted by the Prosecutor to "appropriate international bodies , thus facilitating the arrest and transfer of Tribunal indictees by peacekeeping forces in the field). This avenue offers an alternative to a claim of implied powers which could sometimes be taken advantage of, although difficulties in winning broad ASP support for a given amendment may sometimes make this untenable.

Some organisational measures 11. The structure of the Office of the Prosecutor (OTP) in the first year budget does not expressly refer to a unit that will deal with matters related to State co-operation. It seems important that from the very beginning, the Prosecutor is assisted by staff with extensive expertise in this field. 12. The Prosecutor should develop various tools that will assist with State co-operation. In addition to the formal communication of information, a list of actual contact persons should be maintained as these relationships develop, in order to enhance the effectiveness of consultations and communications with States. This list should cover not only State Par- ties but also non-State Parties with which the OTP may be dealing in particular matters or generally, as well as contacts within international organisations. 13. In particular, contact information may contain such details as phone-, mobile, fax numbers, e-mail addresses as well as the languages spoken. This may also require some follow up work, as well as regular updating, by the Registrar (which the OTP may wish to encourage) as States Parties may not have provided sufficient contact information. 14. The experience of the ad hoc Tribunals shows that it is important to maintain predict- able channels of communication with both States and external bodies, as well as mutually- agreed standard operating procedures pursuant, inter alia, to Memoranda of Understanding (MOUs, see below). This is necessary in order both to foster mutual trust and to ensure that the willingness of cooperative States and entities to assist is preserved. To this end, the OTP, while taking into account the need for flexibility and an individualised structure for requests for assistance, should prepare some standard forms or guidelines to ensure a consistent approach to different types of requests for assistance. 15. The Prosecutor should develop efficient access to and knowledge of all pertinent extradition treaties and other relevant legal assistance treaties, such as mutual legal assistance treaties, so that when conflicts seem to arise, he can examine the relevant international agreements as quickly as possible. A data bank of extradition and other legal assistance treaties should be developed for the Prosecutor. The Prosecutor may wish to benefit from existing data bases of this nature held by international organisations such as the United Na- tions Office of Drugs and Crime in Vienna and the Commonwealth Secretariat in London. 16. It is also important that the Prosecutor knows all (enacted and draft) national legislation which implement the Statute. These laws offer not only useful information as to the appropriate channels of communication, but also provide the basis from which one may infer whether certain States are prepared to offer more assistance than they are presently required to provide under the Statute. Moreover, these acts amount to important subsequent practice in the application of the ICC Statute and can, to some extent, stand as an interpretative tool ofthat instrument, including with respect to the scope of powers of the Prosecutor.

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Informal expert paper /''act-finding unJ investigative functions of the Office of the Prosecutor, including international co-operation

The Prosecutor should be prepared to offer advice to receptive governments, in light of existing examples and best practice (from the OTP's viewpoint), on how best to structure implementing and other relevant legislation for the efficient operation of the Court, including the principle of complementarity. Such advice should, however, be carefully considered so that it does not prejudice the Prosecutor's ability to subsequently request co-operation or any later determination of the State's compliance with the obligations under the Statute. 17. Subject to the requirements of consistency with the overall object and purpose of Part 9, Memoranda of Understanding may be negotiated as a useful supplement to implementing legislation in the area of state co-operation (see below). 18. It is important that various databases referred to above and elsewhere in this paper are carefully designed so that it can be used for different purposes and for long time. It may be useful to separate public and confidential information. The public information would be accessible for all organs of the Court and the defence. This public database may be com- piled and maintained by both the OTP and the Registry. Considering the limited resources, a step-by-step and selective approach may be employed, which may also reduce the initial resources required for keeping the database updated.

HI. Preliminary examination

19. Pursuant to Article 15 of the Statute, prior to commencement of an investigation, the Prosecutor must, when acting proprio motu, conduct a preliminary examination. It is only upon the subsequent application to and authorisation by the Pre-Trial Chamber that the OTP may proceed to the commencement of an investigation. 20. In conducting the Article 15 preliminary examination, the Prosecutor needs to analyze the seriousness of the information received (Article 15( I )) and determine whether there is a reasonable basis to proceed with an investigation (Article 15(2)). To this end, the Prosecu- tor must consider, in accordance with Rule 48 and Article I5(3)(a), whether there is a reasonable basis to believe that a crime has been or is being committed, (b) that the crime is within the Court's jurisdiction, (c) that the case is or would be admissible under Article 17, and (d) that the interests of justice would be served by the investigation. The Prosecutor needs access to sufficient information in order to meet these objectives. 21. According to Article 15(2), the tools available to the Prosecutor at this stage include: received information; additional information from States, organs of the UN, intergovernmental or non-governmental organizations or other reliable sources and 'written or oral testimony' received at the seat of the Court (whereby the ordinary procedures for questioning shall apply and the procedure for preservation of evidence for trial may apply pursuant to Rule 47). Although apparently limited in scope, the sources described under this rule are potentially rich in terms of the information they may in practice be able to provide. More- over, there is arguably no reason to restrictively interpret the type of non-governmental or governmental organization that may and should be approached by the ICC Prosecutor under this provision. Flexibility and creativity should be employed in this regard, depending on the type of information sought. Applicability of Part 9 of the Statute 22. While the Prosecutor may seek assistance in gathering the necessary information from State Parties, other States and international organisations, neither the Statute nor the Rules provide expressly for the application of Part 9 co-operation obligations of States Parties at this stage, nor are there any other specific powers set out for gathering the information from the sources listed in Article 15(2). This gives rise to two possible interpretations.

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Informal expert /JJ/XT fact-finding and investigative functions of ilia Office of the Proxeculor. including international co-operation

Narrow interpretation 23. Under narrow interpretation of Part 9, it is only once a 'reasonable basis' has been found by the Pre-Trial Chamber under Article 15(4) (or by the Prosecutor under Article 53( I)) that an 'investigation' would commence and at that point Part 9 would become available to the Prosecutor in accordance with Article 54(2) with the resulting obligations for the States Parties under Articles 86 and 93. Consequently, the measures taken before an authorisation (during what Article 15(6) refers to as a 'preliminary examination') are not (and should not be seen as) measures within a formal 'investigation'. The Prosecutor's task at this stage should rather be seen as a basic fact-finding mission necessary to establish only a "reasonable basis with respect to the criteria outlined above; this ought to be reflected both in the measures to be taken and in the standards set by the Pre-Trial Chamber for finding a "reasonable basis and authorising an investigation. Broad interpretation 24. The broad interpretation would hold that Part 9 of the Statute does in fact apply to the preliminary examination under Article 15, putting a wider array of powers at the Prosecu- tor's disposal as well as a greater obligation on States. This argument would rest on an interpretation of the obligation of States Parties to cooperate fully with the Court under Arti- cle 86, arguing that there should be no distinction between pre-authorisation examination and post-authorisation investigation for purposes of the application of Part 9. Alternatively, it would argue Ideologically for a general obligation for States to cooperate based on Arti- cle 86. Indeed, the States Parties are expected to be committed members of the ASP, performing in good faith their obligations to uphold the Statute. With this interpretation it would be argued that the Prosecutor could rely during the pre-authorisation stage upon cooperation under Part 9, although the restrictions set forth in Article 15(2) would still apply. Preferred interpretation 25. The narrow interpretation is easier to reconcile with Article 15(2) than the broad interpretation, not least because it corresponds to the desire of States, during the negotiations, to limit the investigative powers of the Prosecutor prior to obtaining judicial authorisation in the case ofproprio motu investigations. At the same time, the arguments supporting the broad interpretation arc open to the counter-arguments that Article 86 specifically refers to co-operation in the 'investigation and prosecution of crimes', and that Article 15(3) (when read in French l'ouvrir'], Spanish ['abrir'] and Russian ['vozbuditj'], as well as English) implies that investigations are not opened until Pre-Trial Chamber authorisation has been obtained. The 'linear approach' (see below) - whereby the 'reasonable basis' finding that triggers notice to States under art. 18 would, in the case ofproprio motu proceedings, be the finding of the Pre-Trial Chamber under Article 15(4) - is fully consistent with this view. 26. At the same time, the practical consequences of adopting the narrow view of the applicability of Part 9 should be addressed. Specifically, it should be asked whether the narrow interpretation may adversely affect the Prosecutor's ability to ensure States' cooperation in obtaining information essential for the determination of whether to seek authorisation. Under Article 15(2) the Prosecutor can certainly "seek information from States, including information that needs to be gathered through use of the measures outlined in Article 93. Many State Parties can be expected to assist the Court with such information regardless of the application of Part 9, though some may have technical difficulties in obtaining the necessary court orders to gather evidence before an investigation has commenced. With other States (for example a territorial state where there has been no regime change) it is likely that obtaining co-operation will be a problem whether or not the Prose- cutor is relying on Part 9.

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Informal expert paper Fad-finding and investigative functions of the Office of the Prosecutor, including international co-operation

27. While the broad interpretation is therefore of marginal utility where it is needed most (i.e. in the case of the reluctant State), the narrow interpretation has an important procedural advantage for the Prosecutor. Because the narrow interpretation construes the Prosecutor's preliminary examination as pre-investigative, it also enables the Prosecutor to proceed without notice to States required by Article 18 and the subsequent procedural blocks that would normally arise. The broad approach, on the other hand, would necessarily involve notice to States that might be inclined to use every procedural means at their disposal to hamper the Prosecutor's work. Thus, and in particular where the key governments involved are likely to resist the OTP's work, the narrow approach could have real advantages for the expeditious commencement of the Prosecutor's work. 28. The absence of Part 9 co-operation powers requires a facultative interpretation, and maximum use, of the fact-finding measures contemplated for the preliminary phase by Ar- ticle 15(2) (see below). Broad means of gathering the necessary information (through open source information, reports of NGOs and IGOs, interviews of refugees conducted by organisations or cooperative States) would have to be utilised, while at the same time arguing to the Pre Trial Chamber that authorisation under Article 15(4) should be available on a low threshold given the applicable 'reasonable basis' test and the references throughout Article 15 to a requirement for "information . In this argument the Prosecutor may choose in fact to refer to the non application of Part 9 to bolster the position that clearly the intention must have been to require a different level and form of information than the kind of evidence required at the formal stages of the investigation and prosecution. 29. Overall, the narrow interpretation, joined with a facilitative interpretation of the Arti- cle 15(2) powers, allows the Prosecutor to put off the potentially hampering effects of arts. 18 and 19 for as long as possible, without sacrificing the co-operation of those states and entities that are in any event disposed to cooperate.

Receiving Information and Testimonies Related to Alleged I iolalions and Admissibility

30. The Prosecutor may seek assistance from UNHCHR, UNHCR, the ICRC, NGOs and others, present in the field, for preliminary witness identification/screening functions or other types of information that may be relevant to the assessment at this stage. ICC field offices, set up with consent with the relevant State, may also be indispensable for cooperation with these organisations in the field. Such identification activities should be as broad as possible to allow an early and vigorous start to the investigation, while maintain- ing that these activities are necessary ancillary functions of the preliminary examination, and are not part of the investigation as such. Agencies additional to those which deal with refugees and internally displaced persons (to include, for instance, bodies involved in financial tracking) may also yield useful results, whether at this stage or subsequently. 31. Article 15(2) requires that written or oral 'testimony' should be received by the Prose- cutor at the seat of the Court. Given that the Prosecutor may seek information from States and other entities listed under Article 15(2) and the fact that the limitation applies only to 'testimony' received by the Prosecutor, there would appear to be nothing barring the Prosecutor from asking States or organizations to obtain information from potential witnesses as part of 'seeking information', including through obtaining voluntary written statements. Arguably, the Prosecutor may also be able to directly obtain information from witnesses as 'other reliable sources', with the State's consent provided these do not amount to that 'testimony' which must be taken 'at the seat of the Court'. 32. As discussed in the previous section, different views can be taken as to whether the Prosecutor's gathering of information at the pre-authorisation stage constitutes an 'investigation' or not and, thus, whether co-operation under Part 9 is available. Irrespective of the conclusion, however, it is clear that a difference is foreseen (and expected) in the activities of the Prosecutor pre- and post-authorisation. Hence, it seems prudent at this stage to exer-

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Informal expert fxiper Fuel-finding and investigative functions of the Office of the Prosecutor, including international co-operation

cise caution in terms of field offices and other investigative activities (such as interviewing witnesses') within the territory of States even with State consent, in order to avoid the impression that an investigation has begun without proper authorisation. 33. Moreover, while obtaining information at this stage, it should be borne in mind that this information will need to be adduced at the Article 15 hearing in the Pre-Trial Chamber. It would thus be useful if the information received was in a form that would be admissible at any confirmation hearing (Article 61) and trial if the Prosecutor later decides to use it as evidence (see also Rule 47). In particular, when the Prosecutor considers that there is a serious risk that it might not be possible for the testimony to be taken subsequently, the Prosecutor may request the Pre-Trial Chamber to appoint a counsel or a judge from the Pre- Trial Chamber to be present during the taking of the written testimony under Article 15(2). However, given the differing standard and purpose of the Article 15 hearing and the limited ways in which information can be gathered at this stage, it may not be possible to obtain it in an admissible form for subsequent proceedings. In any event and particularly if the evidence may be used at later stages, matters of confidentiality and witness protection should also be addressed as necessary. 34. One pressing issue at the preliminary examination stage will be the protection and preservation of information pending authorisation for the commencement of an investigation. In this regard, the Rules of Procedure and Evidence mandate that the Prosecutor shall protect the confidentiality of the received information and testimony or take "any other necessary measures (Rule 46). In this regard, the supporting material (Article 15(3)) should be submitted to the Pre-Trial Chamber as a confidential attachment to the request for authorisation.

IV. Fact-finding, investigation, and admissibility procedures under Arti- cles 18 and 19

Cieneral provisions 35. The principle of complementarity is, needless to say, a cornerstone of the Statute and the Prosecutor may need to investigate a Slate's investigative and prosecutorial conduct in order to determine whether the situation should remain under the jurisdiction of that State or whether jurisdiction should instead be assumed by the ICC. This may be called for at different stages of the proceedings and the Prosecutor will need to obtain relevant information for the determination of the issue. It may require setting up a "complementarity monitoring team , which would include staff with relevant skills, for monitoring national courts' proceedings where this is feasible considering possibly lengthy domestic proceedings and other circumstances. The Prosecutor may also seek assistance from NGOs' court monitors with necessary qualifications and training. 36. The Prosecutor's relationship with the State exercising jurisdiction under complementarity will be critical to facilitating ultimate resolution to the issue, whether the situation remains within the purview of the State alone or whether the Prosecutor seeks approval from the Pre-Trial Chamber to commence his own investigation. 37. The Prosecutor may need to ask detailed questions to individuals in a national system and thus the degree to which there is a cooperative arrangement established may determine how successful the Prosecutor is in discharging his responsibilities. The standards set forth in Article 17 are unambiguously legal standards. Nevertheless, there may need to be political discussions and arrangements undertaken in order to facilitate decisions based on those legal standards.

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Informai expert paper Facl-ßnJing and investigative functions ofttte Office of the Prosecutor, including international co-operation

38. Although this requires a determination in casu, (rendering relatively detailed information necessary), but the Prosecutor will also need more general background information and States may also wish to submit information of a more general nature (Rule 51 ).

Article 15 39. Both the Prosecutor and the Pre-Trial Chamber must, to the extent possible, assess issues of admissibility (and jurisdiction) in relation to an authorisation under Article 15. It is clear from the Statute, however, that this assessment is of a preliminary nature and does not prejudice any subsequent determinations (Article 15(4)). There is no opposing at this stage and the burden to seek information relevant to such an assessment rests squarely with the Prosecutor. 40. Even if the negotiations clearly showed a general intention not to allow States to challenge the admissibility of a case at this stage, a dialogue with the State in question (if possible) will frequently be advantageous.

Article 18 41. Issues of admissibility will have to be considered for the purpose of the proceedings under Article 18 and here the determination will be even more decisive. While the State seeking deferral will have to provide information and the Prosecutor may request additional information from that State (Rule 53), the Prosecutor may wish to also seek information from other sources. This will have to be done under a serious time constraint. 42. It is not clear from Article 18(2) whether the notification to States under this Article shall take place before or after authorisation of the Pre-Trial Chamber - i.e. when does the Prosecutor 'initiate an investigation' under Articles 13(c) and 15? One may also ask how an authorisation of the investigation under Article 18(2) relates to the authorisation under Arti- cle 15(4). However, the negotiations (of the Rules of Procedure and Evidence, in particular) show that delegations favoured a 'linear approach' to Articles 15, 18 and 19 and, thus, that the proceedings under Article 18 shall take place only upon authorisation according to Arti- cle 15(4). Further, a proposal to integrate the proceedings was rejected. A linear approach would also place state referral cases (Article 13(a)) and proprio motu-cases (Articles 13(c) and 15) on an equal footing. 43. Also in case of a deferral, the Prosecutor will have to follow up the national development of the case in question and a State Party may be obliged to submit periodical information on its progress (Article 18(5)). In this case, however, it is hard to claim that the Prose- cutor is conducting an 'investigation' of a crime and it is very doubtful that the Prosecutor has recourse to any measures of co-operation under Part 9. Hence, the State's own information and information from external sources may be the only material available as a basis for a review of a deferral according to Article 18(3).

Article 19 44. With the linear approach outlined above, which is also supported by Article 18(7), challenges to the admissibility of a case (or the Prosecutor's request for a ruling on this issue) according to Article 19 will always be done at a stage when Part 9 co-operation has become available to the Prosecutor. However, investigations are normally suspended pending the outcome of such challenges (Articles 19(7) and (8)), and Part 9 itself is of doubtful use in the Prosecutor's assessment of admissibility (see above). Again, however, other arrangements may be necessary vis-V-vis non-States Parties.

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Informal expert paper Fdcl-finJing und investigative functions of the Office of the Prosecutor, including international co-operation

Provisional investigative measures

45. In spite of a deferral to a State's investigation or a request for authorisation under Ar- ticle 18 and the suspensive effects of a challenge to the jurisdiction of the Court or the admissibility of a case according to Article 19, the Prosecutor may seek authorisation for provisional (investigative) measures (Article 19(8)). The Prosecutor's request shall be considered exporte and in camera on an expedited basis (Rules 57 and 61 ). 46. In case of a deferral, such measures must be "necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available (Article 18(6)). An authorisation for provisional measures is also required 'pending a ruling by the Pre-Trial Chamber' (on authorisation for the investigation). The linear approach means that Part 9 co-operation is available for provisional measures in the interim. While slightly more uncertain, an 'investigation' should also be considered commenced for provisional measures explicitly authorised by the Chamber in spite of a deferral (insofar the authorised measures are concerned), and thus Part 9 co-operation would apply. 47. In case of a challenge, the available measures are more extensive and also include the taking of a statement or testimony from a witness, completion of the collection and examination of evidence already initiated, and preventing a suspect under an arrest warrant from absconding (in co-operation with the relevant States) (Article 19(8)). Since the 'investigation' should only be considered suspended to the extent that provisional measures are not authorised, Part 9 co-operation would be available to the Prosecutor regarding such authorised measures. Moreover, orders and warrants ordered by the Court prior to the challenge continue to be valid (Article 19(9)) and States Parties continue to be obliged to fulfil requests based on such orders and warrants in accordance with Part 9.

V. Investigation

48. Two stages in the OTP's activities are envisaged. At the initial stage, when violations on humanitarian law are still being committed, the situation on the ground may often not permit investigations on the territory of the State of the conflict. At this stage, investigation teams principally commence interviewing those witnesses who are available outside the zone of the conflict (mainly refugees), although local and international non-governmental organisations may frequently continue to monitor abuses and gather information, with local NGOs, in particular, often having local knowledge, language skills, and established relationships with victims' communities. Deployment of peacekeeping forces or abatement of the conflict may thereafter permit sufficient security of an investigation on the territory of the State of the conflict. At this stage, investigative units may, within the terms of the Stat- ute, commence investigations on the territory of the alleged violations, including interview of witnesses, examination of crime scenes, exhumations, search and seizures, etc. The ability and willingness of these peacekeepers also to apprehend persons indicted by the Court is also likely in time to become a key issue (see below). 49. The OTP will have to ensure safety and security of its team members through liaison with appropriate persons in the field. In this regard, as the ad hoc Tribunals' experience shows, the OTP will rely on the assistance and co-operation of international bodies, such as peacekeeping forces, and local authorities, such as the police. When it deems necessary, a request for assistance may contain reference to Article 48 of the Statute and the Agreement on Privileges and Immunities as to the immunities of the OTP investigators. Ratification of this Agreement is proceeding slowly. There is a need to urge ratification or resort to alternative 'bilateral' agreements where ratification is not possible. In case of a security threat from State officials, it might be necessary to make a reference to the Convention on the

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Informal expert paper l'act-Jinding and investigative funcunns of Ihn Office of the Prosecutor, including internulioniil co-operation

Prevention and Punishment of Crime against Internationally protected Persons, including Diplomatic Agents (1973). This Convention entails a number of obligations for the con- tracting parties, which may be others than the ICC States parties. Whilst confidentiality will generally be of prime importance, consideration will also have to be given to the length of notice these bodies require in order to make their necessary preparations to assist the OTP.

The relationship betu'een the Prosecutor and Stale authorities under the ICC Statute - The basic features 50. Apart from the failed State scenario, which is covered by Article 570)(d) and which will be dealt with separately, the duties of States Parties to assist the Prosecutor in the exercise of his or her investigative functions are essentially contained in Part 9. The interpretation of the concrete duties enshrined in this Part should be guided by the overarching obligation fully to cooperate contained in Article 86, which alludes to the recognised interpretation rule of effet utile. The latter rule may also be of use when it comes to concretise the openly-worded compromises which Part 9 contains wherever delegations were unable to reach agreement in detail. 51. Part 9 creates co-operation regime for the gathering of evidence and for the arrest and surrender of persons. Article 86 of the Statute obliges State Parties to cooperate fully with the Court in its investigations and prosecutions. State Parties are obliged to comply with requests for the types of assistance listed in Article 93( 1 ), sub-paragraphs (a)-(k), and with any other type of requested assistance unless it is prohibited by the law of the State Party (Article 93(1 )(!)). While State Parties will use procedures of national law in meeting the request, under Article 88, importantly, a State Party must have procedures under national law for all the listed types of assistance. The only qualification to the obligation is the modification requirement in Article 93(3) and the process for national security information set out in Article 72. In addition to the general obligation to comply with the request, Arti- cle 99( 1 ) requires that the request be executed in the manner specified therein unless that is prohibited by law. This allows the Prosecutor to specify not only what is required in terms of evidence gathering but the way in which it will be carried out. This request process under Part 9 should be the starting point for evidence gathering for the Prosecutor unless the situations outlined below relating to Article 99(4) arise or where there are other exceptional circumstances. 52. Despite the obligations of Part 9, it can be anticipated that there will be problems with its application on a practical level, in particular in the early stages. In addition to possible problems with wilful non-compliance, the most pressing problem may arise from States not having adopted implementing and other relevant legislation, leaving the State without the requisite powers to respond to the Courts requests. In order to better anticipate problems in this regard it would be useful for the OTP to seek copies of implementing and other relevant legislation from State Parties; information which would also help with the framing of requests. 53. The Prosecutor should be aware of the manner in which some States may wish to interpret Article 97 of the ICC Statute. The duty to consult embodied by this provision could be seen as a justification for submitting grounds for refusal other than those set out in the Statute. In this respect, one could think of the accusation that a certain exercise of powers by the Prosecutor is ultra vires the Statute. Taking account of the drafting history, especially the inclusion of certain grounds for refusal as a compromise in the Statute as well as the references to domestic law, the Prosecutor may stress the self-contained character of the co-operation regime in as much as possible. The Prosecutor should thus be cautious that use of Article 97 does not result in watering down the co-operation regime. On the other hand, it may be in the direct interest of the Prosecutor and in the spirit of Article 97 to accept pro-

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Informal expert paper l-'act-findmg anil invest ixtitire functions of the Office of ihn Prosecutor, including international co-operation

posed alternatives by the requested State, if hereby the requested assistance will be obtained. 54. As far as requests for co-operation under Part 9 are concerned, the Prosecutor may directly communicate with States Parties (Rule 176(2)). For this purpose the OTP will want to have in its database an up-to-date list of any channel of communication designated by a State Party under Article 87( 1 )(a), including on a practical level precise contact information and the same type of information with respect to the transmission of requests via the diplomatic channel (see Some Organisational Matters section above). 55. Of particular importance is the interpretation to be accorded to Article 99(1), which sets out the principles that will govern execution of requests for assistance under Part 9. While Article 99(1) provides that requests are to be executed in accordance with the national law of the requested State, it importantly also provides that the request should be carried out in the manner specified in the request unless there is an actual prohibition in law against doing so. The Prosecutor should take full advantage of this exhortation, setting out in each request the manner in which the request should be executed, including with the direct participation of his staff and, if appropriate, defence counsel. For example, the Prosecu- tor could set out in the request that he wishes investigators within his office to be notified about when the witness interviews will take place in order to be able to attend the interviews and to pose the questions directly to the witnesses. Under the provisions of Arti- cle 99( 1 ), the requested State cannot refuse to carry out the request in that manner unless they can demonstrate an actual positive prohibition of such questioning under domestic law. It would thereupon not be sufficient to point to a usual practice or even the legislated procedures that are used for domestic proceedings. The State would need to point to an actual prohibition at law.

Application of Article 93 56. The Prosecutor will want to use the provisions of Part 9 to maximise his ability to directly gather relevant evidence. While Part 9 creates a regime that is dependent upon the co-operation of State Parties, there is still considerable scope for direct participation by the OTP in the execution of requests for assistance particularly when one bears in mind analo- gous practices under inter-State co-operation regimes. 57. Although Article 93 may be intended for use for requests for traditional rogatory commissions, meaning the requested State performs investigative acts at the request of and on behalf of the trial forum, an alternative use is not excluded. Taking account of the cardi- nal rule of interpretation of treaties, i.e. the ordinary meaning of the text. Article 93(l)(l) can serve as the basis for a request by the Prosecutor for on-site investigations. The wording of this provision does not rule out the duty of provision of passive assistance. Article 93 is also arguably compatible with States Parties voluntaristically assuming more extensive obligations than those strictly mandated by Part 9, such as by granting the OTP staff full powers to carry out investigative functions within its territory via MOUs or other ancillary instruments (see below). Indeed, passive (forthcoming) assistance may also be provided outside of formalised mechanisms of co-operation, i.e. no formal request for legal assistance would be necessary and could be easier for some States to accept than an MOU. In general terms, it seems that the whole process of encouraging both States Parties and non- parties to act proactively without awaiting a formal request of the Prosecutor will become an important diplomatic initiative for the OTP. 58. Thus, and although in the Article 93 scenario, the requested State will retain the ultimate control over the execution of the request, the Prosecutor can influence significantly the procedure for the execution of requests and in particular the level of participation of the OTP. In particular, the Prosecutor can frame the request for assistance so as to seek maximum involvement of officials from the OTP in the execution process. As another example

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Informai apen paper Pact-finding and investigative functions of the Office of the Prosecutor, including international co-operation

the request can specify that OTP officials wish to interview directly-named witnesses or that they wish to be present during the execution of a search warrant. Once again, this would be limited only by a prohibition under domestic law to such participation by the OTP, in accordance with Article 99(1). Indeed, in inter-State co-operation practice, treaty provisions framed in the terms of Article 99(1 ) are frequently applied to allow the authorities of a requesting State Party to participate in the execution of requests in this manner. The Prosecutor should use this tool to the greatest extent possible and should be very explicit in its requests for assistance in order to permit itself the maximum latitude and so as to avoid the need to renew requests in light of new questions and to ensure the admissibility of the evidence in the subsequent proceedings. 59. To comply with a request under Article 93( I ), the State concerned may use the procedures under its national law including, in particular, its implementing and other relevant legislation. Although the lack of such procedures does not constitute a ground for refusal (Article 88), it may create a practical obstacle. Problems ofthat kind should thus be anticipated by the Prosecutor to the greatest extent possible. To that end, the compilation of State implementing and other relevant legislation mentioned above will be of great assistance. It is also commended that the Prosecutor engages in a dialogue with State Parties to ensure that the procedures which the respective national legal frameworks require for full cooperation with the Prosecutor are in place. As a first step, and if necessary in coordination with parallel initiatives in this regard ongoing in the Registry, the OTP could seek to collate existing national implementing and other relevant legislation and identify co-operation- friendly "best practice examples for as wide a reception as possible. Ultimately, the OTP should maintain a complete database of implementing and other relevant legislation. 60. The database referred to under the previous heading will also be useful in light of any information, including that regarding the information, a requested State may require under Article 96(2)(e). The latter has the potential to operate as an obstacle to speedy cooperation, or, even worse, as an incentive for avoiding obligation of co-operation under Article 93(1). Therefore, it appears of great importance that Article 96(2)(e) be interpreted in the same spirit as with Article 91(2)(c). Furthermore, in its dialogue with States Parties referred to in the previous heading, the OTP should stress the need for the most liberal interpretation of information requirements so that only the minimum information necessary to obtain the relevant measures under domestic law will be required under Article 96(2(e). 61. In addition to the specific types of assistance listed in Article 93, the Prosecutor will want to keep in mind Article 93( I )(l) which is a "catch all provision allowing for requests for other types of assistance provided they are not prohibited under national law. The Prosecutor may wish to employ this clause in seeking unusual types of assistance such as DNA samples or interception of communications with the understanding however that States have more flexibility with regard to these unlisted types of assistance and the assistance may not be possible because of prohibitions under national law. 62. Under Article 93(3), a requested State Party may invoke an existing fundamental legal principle of general application in order to render a request conditional or to ensure that it is otherwise modified. Although the openly-worded term "existing fundamental legal principle of general application will have to be applied in light of the relevant national jurisdiction, it is important to stress, that it must be given an autonomous meaning and that it will have to be authoritatively defined by the competent ICC judges in case of controversy. Weighty reasons based on the travaux préparatoires and the effet utile, however, point to a narrow construction, this provision was included solely to address situations where the execution of a request for assistance would violate fundamental principles of a legal system. The Prosecutor needs to bear in mind that because issues such as the extent of the protection against self-incrimination or family incrimination and the application of privileges were yet to be determined (they were subsequently dealt with in the rules), many States

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Informal expert paper Fact-finding ami investigative functions ufthe Office of the Prosecutor, including international co-nperatinn

were concerned that they might receive a request requiring them to breach a protection or privilege of this nature. Given the protections now accorded under Rules 73, 74 and 75, it is unlikely that the Prosecutor will present a request that will raise the kind of issue contemplated under Article 93(3). It is critical that if the provision is invoked the Prosecutor requires the State to clearly demonstrate all the requirements of the provision; i.e. a) that there is a legal principle involved (as opposed to a policy or practice); b) that it is fundamental in the sense of constitutional or of an entrenched nature protecting important values; c) that it applies generally to domestic cases and all foreign requests and is not of unique application to the ICC; and d) that it is pre-existing and is not a new provision. In order to assess the merits of the invocation of Article 93(3) in each case, OTP staff will have to familiarise themselves with the legal landscape of the requested State. Preferably, this can be achieved through the consultation processes between the ICC and the State as envisaged in the Stat- ute, but there may also occur instances where the OTP would have to seek external assistance, e.g. in the form of independent legal opinions. 63. Under Article 93(4) a State may, in accordance with Article 72, deny a request for assistance on national security grounds. The Prosecutor will have the difficult task of setting the tone in highly sensitive national security disputes. It seems that the reference to the "relevance to the national security issue in Article 93(4) shall be read in conjunction with Article 72 which refers to "prejudice to the national security. 64. The smooth execution of a formal request may at times be facilitated by prior informal consultations. In any event. Article 97 requires consultations with States Parties when there is a problem which may impede or prevent the execution of a request for cooperation. The Prosecutor should be deeply engaged in using Article 97 on behalf of the Court to arrive at practical solutions to such problems. The solutions may often be innovative in nature which is acceptable to the extent that they will withstand the scrutiny of the competent Chambers. The Article 97 authority is likely to become a daily exercise of authority by the Prosecutor. The consultations should not, however, convey the impression of the Prosecutor's readiness to have the duties under Part 9 be watered down in practice. In- deed, in this regard, the preambular paragraph of Article 97 itself could be recalled; namely, that the emergence of issues impeding or preventing the execution of a request shall result in prompt consultations with the Court in order to résolve the matter. "Resolution in this context ought to be interpreted in the light of States Parties' general obligation of cooperation under Article 86 so as to ensure that any purported resort to "national security concerns does not ipso facto and automatically debar any meaningful co-operation with the Court. 65. As mentioned above, in some cases, and particularly where the authorities of the State where the investigative measure is to be executed are alleged to be involved in the crime in question, it will be undesirable, if not impossible, to leave the execution of the investigative measure under the control of the requested State. In this case the Prosecutor will wish to execute the investigative measure directly.

Application of Article 99(4) 66. Article 99(4) gives the Prosecutor the authority to execute a request directly without the submission of the request to the State Party through the procedure outlined in Arti- cle 93. However, this Article is limited in application to measures that can be carried out without the need for a court order or judicial authorisation and was intended in particular to allow the Prosecutor to interview witnesses directly and if necessary outside the presence of the authorities of the State. The Article also imposes some requirements for its application. 67. As noted earlier, the Prosecutor may well be able to obtain direct access to witnesses on a voluntary or compelled basis under Article 93 by specifying this in the request for assistance. If, however, the Prosecutor is concerned only with voluntary witnesses and he

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Informal expert paper I'act-JinJing and investigative functions of the Office of the Prosecutor, including mternaliimal co-operation

anticipates problems with direct access under a request submitted in the normal course, it would be advisable to rely on the Article 99(4) process to conduct the interview. Article 99(4) should also be used in all cases where the Prosecutor determines that the witnesses will be constrained in any way in terms of the information they will provide as a result of any authority of the State being present at the interview. This would include situations where witnesses are afraid of any state authority because of the trauma resulting from their experiences. 68. The approach to the application of Article 99(4) will depend on whether the request is to be executed in the territorial State and there has been a determination of admissibility, or within another State. In the case of the latter - the non-territorial state - the Prosecutor may wish to establish a standard procedure for notifying the State in question of his intention and initiating the necessary consultations. To ensure maximum use of Article 99(4), the Prosecutor should clearly distinguish this process from a normal request under Article 93 by submitting an entirely different type of document to the State in question. Instead of a request it would be appropriate for the Prosecutor to send perhaps a Notice under Arti- cle 99(4) of his intention to directly execute a request. While the Prosecutor is required to consult with the requested State, he should take steps to ensure that the process is not delayed because the State fails to respond to the Notice. It would be advisable for the Prosecu- tor to set a deadline for the consultations and indicate that in the absence of a response by that time the Prosecutor will presume that the State has no concerns to raise and that the consultations are thus concluded. 69. In terms of the information provided in the notice, it may depend on the particular circumstances as to the level of information the Prosecutor will provide. For example, if there are any concerns that witnesses will be interfered with if identified, the Prosecutor may wish to make only general reference to the interview of relevant witnesses in the requested State. As the Article 99(4) process is a distinct one, the Prosecutor does not have to provide all of the information required in a request and therefore can use his discretion to decide on the appropriate detail in each case. 70. It is also important to note that while the Requested State can raise concerns and pro- pose "conditions , the consent of the State is not required. Therefore the Prosecutor may need to negotiate with the State as to any applicable conditions for the execution of the request but always keeping in mind that the State may not impose "unreasonable conditions and in particular cannot impose conditions contrary to the express terms of Article 99(4), i.e. by requiring the presence of officials of the State. 71. Where the Prosecutor anticipates that he will need to visit a State on several occasions to conduct a series of interviews, it may be useful for him to consider an MOU with the State in order to eliminate the need for new consultations in each case. This MOU could either be specifically geared to this situation and thus based on Article 99(4) or may constitute a particular provision of a broader MOU of more general application. The MOU should simply provide that a faxed notice to the State of the date and place (if appropriate) of the interviews will suffice as the requisite consultations. 72. In the case of the territorial state, the Prosecutor may proceed with execution after "all possible consultations . What this will require will vary from situation to situation depending, for example, on whether the structures of the state are operational or not. The Prosecu- tor will want to attempt to carry out consultations by sending a notice through any available channels and by contacting any officials that may be able to conduct consultations on the part of the State. However, again in order that the process is not delayed, the Prosecutor should be prepared to proceed after reasonable efforts have been made even if there has been no response from the State.

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Informai expert paper Fad-finding and investigative functions of the Office oflhe Prosecutor, including international co-operation

73. Indeed, the opportunity for direct execution of the investigative measures only exists when the case has been found to be admissible. Otherwise, the requirements of consultations and reasonable conditions will apply in respect of the territorial state. There may be situations where the Prosecutor would prefer to encourage a State to investigate or prosecute the case instead of becoming involved in the cumbersome process of proving admissibility of the case. In particular, consultations and acceptance of reasonable conditions seems to be preferable in cases where there are institutions in place and (at least an emerg- ing) political will to handle such cases in an acceptable way. 74. The modalities of conduct an investigation on the territory where the crime is alleged to have been committed, where consultations have been very limited or non-existent, will require careful planning and execution by the Prosecutor. Normally it would be through consultations that matters such as advance notice of forthcoming missions to the State, notification of the State of proposed investigative activities, authority of the liaison officer, etc., would be resolved. The plans for execution must take into account the logistical and security problems posed by the absence of such consultations. 75. Whatever process is used under Article 99(4), Article 99(5) requires that the Prosecu- tor's initiatives under Article 99 must still conform to the strict requirements for the protection of national security information provided for under Article 72.

Application of Article 57(3) 76. In exceptional circumstances, such as the need for access to the evidence in the State of the conflict which is clearly unable to execute a request for co-operation, the Prosecutor may seek authorisation from the Pre-Trial Chamber to take specific investigative steps within the territory of the State Party (Article 57(3)(d)); Rule 115). In this regard, since the Pre-Trial Chamber's order may specify the procedure to be followed in carrying out such collection of evidence, it seems important that the request to the Chamber is drafted with this possibility in mind. 77. In collecting evidence on the territory of a State under Article 57(3)(d), the Prosecutor may seek co-operation from any peacekeeping forces or multilateral observer missions deployed in the State. To this end, the Prosecutor may enter into co-operation agreements with the UN or relevant regional organisations, within the framework of the ICC-UN Rela- tionship Agreement, and other organisations in order to ensure that the needs of the Prose- cution are taken into account when peacekeeping forces are deployed. In particular, such co-operation may be needed in exhumation of mass graves. In contrast with Article 99(4), the provisions of Article 57(3)(d) enable the Prosecutor to undertake such measure as the exhumation of mass graves, which generally results in the "modification of a public site. It is clear that under Article 57(3)(d) the Prosecutor may carry out directly any measures that are authorised by the PTC including compulsory measures that would normally require the authorisation of a court in the requested state. So for example the Prosecutor may under the authority of the PTC directly conduct a search or exhumation of a gravesite. The scope for peacekeeping forces to eventually carry out arrests on the OTP's behalf is considered separately.

Specific invesligatire measures

Interviewing witnesses 78. If the interview is conducted under Article 93( 1 )(b), where it is possible or likely that the testimony will be used at trial, the request for assistance should provide very specifically for direct participation of the Prosecutor in the questioning of the witness and for the presence and similar direct participation by the defence. (Note Rule 68(a)). Furthermore, it should be requested that the testimony be taken under oath, if possible using the solemn

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Informai expert paper I ''act-finding and investigative functions of the Office of the Prosecutor, including international co-o/xralion

undertaking set forth in Rule 66, and in consonance with the procedures set out in Rules 111. The Prosecutor may also request that the recording, if possible, follows the procedure in Rule 112 (audio- or video-recording) also when a witness is questioned, particularly in respect of witnesses contemplated in Rule 112(4). The Court may sometimes have to provide technical and other support to the national authorities in order to make certain requirements possible to adhere to in practice. 79. If the interview is conducted under Article 99(4), and the use of the testimony at trial is envisaged or foreseeable, the defence should be given the opportunity to be present and to examine the witness and again the recording requirements and policies in accordance with Rules 111-112 should be observed. A solemn undertaking should also be made in accordance with Rule 66 before testimony is taken by or with the participation of the judge of the Pre-Trial Chamber. Thorough planning is necessary (when possible) in order to conduct such interviews in a cost-effective and efficient manner. In some cases, preliminary contacts with the witness should take place before the interview is conducted and in some cases, utilisation of Article 56 should be contemplated and defence counsel appointed. 80. Since under Article 93( 10) the Court may transmit statements to a State Party upon its request, the witness should be asked if he or she agrees to his of her statement being provided to a State. The witness' response should be reflected at the end of the statement. 81. Article 93(l)(b) envisages a taking of witness testimony under oath as a means of international legal assistance. If it is envisaged that the testimony will be taken by the national authorities rather than the OTP, this provision shall be included in the request. This means of taking evidence does not necessarily rule out participation of representatives of the OTP or the defence (or an ICC judge), if requested, when the testimony is taken.

' - .- - surrender 82. The Statute and the Rules uses the generic term 'the Court' for the making of a request for provisional arrest or arrest and surrender. Given that such a request (pre- conviction) would always be based on a warrant of arrest issued by a Chamber (Arti- cle 58(5)), the Prosecutor should be considered empowered to make the request to a State under his power to 'seek co-operation' of any State (Article 54(3)(c)). This is particularly important in order to keep an arrest warrant sealed, if necessary, and to be able to request provisional arrest at the appropriate moment. It will also be important because there may be questions that arise as to the information or documentation required under Article 91(2)(c) and the Prosecutor will be in the best position to dialogue with the State on that issue. The State's obligations to act upon the request are set out in Article 59 and Article 89( 1 ). 83. The request and required accompanying material could be prepared in advance (including necessary translations) to ensure a speedy transmission when needed. In order to be able to observe the obligations in Rule 117( 1 ) (notification to the arrested person), a request should explicitly require that the Prosecutor and the Registrar be informed of the arrest as soon as it is executed. 84. It is also important that the Prosecutor makes sure that arrest warrants are amended as the investigation proceeds (Article 58(6)) so that post-surrender issues relating to the principle of specialty (Article 101) can be avoided or minimised. 85. The Statute allows the Prosecutor to seek the issuance of a summons to appear as alternative to an arrest warrant (Article 58(7)). Such a summons can be issued with conditions restricting liberty (other than detention), but only if such are provided for in the State which is to enforce the summons and the Prosecutor is obliged to ascertain the relevant provisions of national law (Rule 119(5)). A database of such law focused on the most rele-

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Informal expert paper 1'iict-finJing and investigative fumliuns of the Office of the Prosecutor, including international co-<>i>eriiti<>n

vant jurisdictions and updated on the regular basis could be useful. Such a database could also be used for cases when conditional release with restrictions may take place. 86. The Prosecutor will doubtless be deeply engaged in resolving competing requests for the surrender of an individual under Article 90. The Prosecutor will need to determine, pursuant to Article 90(6)-(7), when to intervene to strengthen the Court's claim for surrender of an individual and when possibly to strengthen the implementation of complementarity if the facts or prudent policy considerations demonstrate that a competing request should take precedence, and then make that argument to the Trial Chamber. 87. Article 98( I ) may require the Prosecutor to negotiate a waiver of diplomatic immunity of an individual from a third State, and those negotiations may prove exceptionally delicate and politically challenging. Article 98(2) may require the Prosecutor to negotiate with a "sending State a consent for the surrender of an individual sought by the Court, and again those negotiations may prove extremely difficult and ultimately futile. 88. The practice of the ICTY has indicated that stumbling blocks more familiar to the law of extradition are frequently proffered by sending states as an obstacle to arrest and surrender. Despite the differing basis of arrest powers under the ad hoc Tribunals and the ICC, Article 102 usefully clarifies that "surrender and "extradition in the ICC context also are not analogues. This in turn enhances the capacity of the OTP to argue that the obligation to surrender indictees to the Court amounts to a xui generis obligation, subject only to the provisions of Part 9 (in particular Article 101, pertaining to the rule of specialty). This principle may become especially important before a Pre-Trial Chamber in the event the Court's personal jurisdiction over an accused is challenged on the basis of particular defects alleged to vitiate an accused's arrest or surrender to the Court (see attached annex). 89. Articles 91 and 92 set forth arrest procedures in coordination with requested States. However, situations may arise where the Prosecutor is compelled, due to non-co-operation by a requested State or the sensitivity of "tipping off the requested State, to explore ad hoc measures to effectuate arrest. The type of co-operation the Prosecutor may need from various States to execute an arrest warrant under these circumstances could lead to innovative and extraordinary measures not contemplated by the Statute or the rules. Alternatively, arrests may simply be spontaneously effected by private individuals in absence of any request or authorisation. This has on occasion occurred before the ad hoc Tribunals, where third parties have, via irregular processes, simply detained indictees on their own initiative and thereafter delivered them to peacekeeping forces obliged to transfer indictees to the seat of the Tribunal, thus prompting an immediate jurisdictional challenge before a Pre-Trial Chamber. 90. The Prosecutor should seek, to the extent possible, cooperative arrangements and consultations under Articles 91 and 92 in order to avoid legal challenges to any arrest or transfer. However, both the complexity of the arrest and surrender mechanisms under Part 9 itself and the factual realities which may lead to an indictee coming into the Court's custody in the first place ensure that legal challenges to the lawfulness of arrests and surrenders are also foreseeable in the ICC context. The regime governing arrest and surrender within the ad hoc Tribunals is largely sui generis, and the extent and manner to which the ad hoc Tribunal jurisprudence in this area will influence the ICC case law is a matter for determination by a Pre-Trial Chamber. As the above-mentioned scenarios are unlikely to arise in the early months of the OTP's operation, an outline of the broader principles to be gleaned from the experiences of arrests and surrender before the ad hoc Tribunals is provided, for future reference, in a separate annex to this report. 91. Further, the practice of the ad hoc Tribunals demonstrates that the assumptions un- derpinning its original Statute and Rules - namely, that arrests and surrenders would be conducted by national authorities - proved in practice to be overly-optimistic. Indeed, aig-

ri ICC-OTP 2003. 18 ICC-02/04-14-AnxA 13-02-2007 282/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 282/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

Informal expert paper Fuel-finding und investigative functions of the Office of the Prosecutor, including international co-operation

nificant numbers of arrests did not occur within the ICTY context until the enactment of Rule 59W.V, which permitted the transmission of arrest warrants to peacekeepers deployed in Bosnia-Herzegovina and a willingness on the part of these forces to interpret their force mandates in a manner consistent with detention of indictees on the Tribunal's behalf. While it is hoped that States Parties will take their obligations of arrest and surrender to the Court seriously, the possibility that territorial States in particular may be unwilling or unable to do so cannot be excluded. Accordingly, the Prosecutor may also in time wish to explore both the willingness and modalities of peacekeeping forces deployed on the territory of relevant States apprehending persons indicted by the Court. An analysis of the difficult questions raised by these issues and possible mechanisms to facilitate this are addressed both below and in the above-mentioned separate annex on arrests.

VI. Enhanced co-operation

Security Council referral 92. A Security Council referral under Article 13(b) can greatly enhance the Prosecutor's authority to compel co-operation from States, including those not party to the Statute. 93. As Article I3(b) entails Security Council action under the extensive powers conferred upon it by Chapter VII of the UN Charter, the Security Council could also use its Arti- cle 13(b) referral power to specify particular measures to enable the Prosecutor to avoid strict requirements for state co-operation and to act with more authority to investigate a situation. Such measures would be within the scope of the Security Council's enforcement powers. 94. Accordingly, the Prosecutor should be prepared in the event of such a referral - and indeed preferably in advance of one - to engage in dialogue with the Security Council concerning the wording of referral resolutions which would ensure that State co-operation is adequately addressed and the Prosecutor's authority sufficiently enhanced through such Security Council referrals. 95. The Statute, in Article 87(5) and (7), limits the Court's referral to the Security Coun- cil of non-co-operation findings to situations "where the Security Council referred the matter to the Court . Of course, it is possible for the Court to exercise its jurisdiction pursuant to a State referral or a proprio motu action of the Prosecutor in a situation in which the Council is engaged under its Chapter Vll mandate (provided only that the Council has not requested the deferral of ICC proceedings in conformity with Article 16). In such a situation, the text of the Statute implies that findings of non-co-operation under Article 87(5) would be referred only to the Assembly of States Parties, and not to the Council, because the latter did not "refer the matter . It seems nonetheless probable that the Court will be able to call upon the Council for its support more broadly, as Article 87(6) allows the Court to "ask any intergovernmental organisation to provide ... forms of co-operation and assistance which may be agreed upon with such an organisation and which are in accordance with its competence or mandate and the Relationship Agreement between the ICC and the UN includes (in Article 17) a broad commitment to cooperate on the part of the UN. For its part, the Council has shown itself capable at least in limited circumstances of linking matters that 'shock the conscience of humanity' to its Chapter VII mandate. Thus, whatever the present political realities, the Court may in principle call upon the Council for assistance, particularly where UN-mandated personnel are in a position to gather evidence, protect victims and witnesses or arrest suspects.

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Informal expert paper Fuel-finding and investigative functions of the Office of the Prnseculiir, including international co-operation

Voluntary co-operation by the States Parties 96. Article 54(3)(d) empowers the Prosecutor to enter into such arrangements or agreements, not inconsistent with the Statute, as may be necessary to facilitate the co-operation of a State, intergovernmental organisation or person. The circumstances that may give rise to the need for an Article 54(3)(d) arrangement or agreement may pressure the Prosecutor to consider procedures that arguably would conflict with Part 9 or any specific agreement already negotiated under it. Any such Article 54(3)(d) arrangement or agreement should be drafted so as not to lead to such a result. 97. Within these broad constraints, however, instruments such as Memoranda of Under- standing may usefully - and permissibly - supplement the regime established by Part 9. 98. Part 9 of the Statute sets out the scope of obligations regarding international cooperation and judicial assistance. In many respects, Part 9 reflects the lowest common de- nominator. Many States Parties would have been prepared to go beyond the duties contained in Part 9. It is not unlikely, that those States will be willing to go beyond what is required under Part 9. In fact, some implementing legislation does offer voluntary cooperation to the Prosecutor. Even States Parties which have been rather reluctant during the negotiations may be prepared to cooperate in an enhanced manner for the purpose of a concrete investigation. The requested State may also be prepared to voluntarily grant enhanced co-operation for one or more categories of investigative measures, be it for the purpose of a concrete investigation or generally. For example, a State may be willing to allow the Prose- cutor the autonomous taking of voluntary witness testimony without the restrictions contained in Article 99(4). Where such an attitude is not already fixed by the implementing legislation, the Prosecutor may wish to rely on his or her competence under Article 54(3)(d) and enter into an agreement with the State concerned or exchange letters. 99. Thus, Part 9 should be viewed as setting out the minimum obligations of States parties in this regard, but which does not preclude the capacity of State Parties to go beyond what is required or supplement and further enhance the level of co-operation demanded by the Statute. At the same time the Prosecutor should also keep in mind that the minimal powers of Part 9 may provide a sufficient basis in many cases to obtain the relevant evidence in the desired form, such that an additional agreement will not be necessary. Because of limited resources it would be prudent to adopt a focused strategy for the negotiation of such agreements, concentrating on those countries where it would be of the most practical benefit. 100. In some constitutional settings at least, informal arrangements such as Memoranda of Understanding or Exchanges of Letters, not being treaties, may accomplish this result more expeditiously and afford greater flexibility; in particular, by allowing for the rapid provision of assistance on a notification basis to a central authority or even direct communication with particular authorities (i.e. outside of diplomatic channels). There also appears to be no impediment to employing them with regard to States who may in principle be cooperative with the Court but for whom, for whatever reason, ratification of the Statute may still be some way off. Interim forms of co-operation may nevertheless be possible via these less formal mechanisms. 101. The feasibility of obtaining such ad hoc consent of a concerned State for the purpose of a specific investigative measure can be tested out by informal consultations. 102. The Prosecutor should accordingly consider preparation of one or more model 54.3(d) agreements that can be negotiated expeditiously when circumstances require, and which can be adapted to the circumstances of the investigation. The Prosecutor should not be constrained by form language in any such model agreement, but be pragmatic in negotiating what is actually required in the investigation at hand. Nonetheless, great care should be taken in not developing model agreements that on their face challenge Part 9 agreements. A

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Informal expert paper Fuel-finding and investigative functions of the Office of the Pnuecuior. including international co-operation

template Memorandum of Understanding is annexed to this report, which may provide a basis for further work in this area. 103. An agreement under Article 54(3)(d) should not include provisions that replicate duties which already exist under Part 9 as this would weaken the obligatory nature of the statutory minimum standard. It might not be necessary to adopt an agreement under Article 54(3)(d) wherever that seems possible. Given the limited resources it could rather be com- mendable to target specific States depending on the foreseeable degree of utility. Should some general obstacles to an efficient investigation become evident in the course of future practice, the Prosecutor may wish to remedy this situation by standard agreements with as many States Parties as possible. 104. The Prosecutor may also enter into agreements on the protection of national security information (Article 54(3)(e)). Article 72 will require the Prosecutor to engage with any requested State that is concerned with the provision of information that, in its opinion, would prejudice its national security interests if released to the Court. Article 72(5) points to the cooperative means and the possible conditional agreement that may be required to obtain such information. The Prosecutor may find, particularly with States that can offer useful information on a regular basis, that a permanent agreement under Article 72(5) setting forth the procedures for the provision of such information in all (or at least most) cases of co-operation on national security information would be most useful and efficient for investigative as well as prosecutorial purposes. However, and as has been demonstrated by the interpretation adopted of cooperative legislation within the practice of the ad hoc Tribu- nals, there may be a risk that such agreements may be used to instead circumvent State's obligations under Part 9. In any event, when entering into such agreements, provisions of Articles 93(3) (grounds for refusal) and 72 will be kept in mind. An agreement with a States Party regarding national security information may also address the issue of disclosure of information or documents that has been transferred to and is held by another State Party in accordance with Article 73.

I 'olunlary co-operation by Stales not party to the ICC Statute and with intergovernmental organisations 105. As mentioned above, such co-operation may occur on both an informal or formal and on an ad hoc or on a permanent basis. The ICC's power to enter into such contacts is enshrined in Article 87(5), 87(6) and the Prosecutor's respective competence are contained in Article 54(3)(c) and (d) extends to States not party to the ICC Statute and to international organisations. 106. In particular, agreements with a State not party to the ICC Statute may include provisions related to access to or collection of evidence on the territory ofthat State. The agreement may, in particular, provide for the some or all of the forms of assistance set out in Article 93( 1 ) as may be necessary or useful in the particular circumstances. 107. The Prosecutor may apply such means of co-operation as Memorandum of Under- standing with international organisations such as UNHCR, UN Headquarter, and NATO. The existing (confidential) MOU between NATO and the 1CTY, which sets forth procedures to be followed in the case of apprehension of indictees by NATO-led peacekeeping forces, may provide a point of departure for a future attempt at drafting the latter, although this example also provides an illustration of a number of pitfalls to be avoided with regard to such agreements (see attached annex). 108. The ad h(K· Tribunals' experience shows that there might be attempts by some intergovernmental organisations to restrict OTP access to their current or former staff as potential witnesses directly without the organisation's mediation. Indeed, such a restriction can be justified if the staff enjoy immunity in respect of proceedings at the ICC. Some inter-

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Informal expert paper Fact-finding ami investigative functions of the Office of the Prosecutor, mc/iiJing international cn-operalion

governmental organisations might insist on extension of the application of Article 54(3)(e) (confidentiality) to any material provided by the organisation to the Prosecutor. As Tribu- nals' experience proves, such a blanket approach may conflict with the Prosecutor's disclosure obligation, particularly in regard to exculpatory material. At the same time the OTP shall be vigilant of and react adequately to any breach of the confidentiality as to materials received under Article 54(3)(e) since such incidents may significantly damage the ICC credibility not only with the provider of the material, but with other providers. 109. These and other related matters will have to be addressed in the OTP internal guidelines on co-operation with intergovernmental organisations.

VII. Issues for future consideration

110. This memorandum has by no means been able to cover all the issues related to fact- finding and investigation that will need to be the subject of policy-formulation and practical preparation by the Office of the Prosecutor in its early months. We therefore take this opportunity to identify what have come to our attention as possible key issues for early work in this area: - Respective roles of the Registry, Chambers and Prosecutor's role pursuant to Part 9 of the ICC Statute; - Composition of the international co-operation unit within OTP; - Preparation of models agreements, including those under Article 54(3)(d) and agreements with the UN related to the Prosecution's co-operation with deployed peacekeeping forces; - Requests by a State to the Court; - Guidelines on co-operation with intergovernmental organisations; - Approaches to issues of immunity and confidentiality; - Interaction with the Assembly of States Parties and determination of respective roles with respect to provision of technical assistance on implementing legislation, non-cooperation, and other issues; - Arrest strategies that respond to non-co-operation from requested States.

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Order Confirming Indictment Pursuant to Article 19, Order Concerning Non-Disclosu... Page 1 of 2

Case No. 1T-02-64-1

Before: Judge Wolfgang Schomburg

Registrar: Mr. Hans Holthuis

Decision of: 6 September 2002

THE PROSECUTOR v. LJUBOMIR BOROVCANIN

ORDER CONFIRMING INDICTMENT PURSUANT TO ARTICLE 19, ORDER CONCERNING NON-DISCLOSURE, AND ORDER ISSUING ARREST WARRANT

I, Wolfgang Schomburg, Judge of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations oflnternational Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ("International Tribunal");

BEING SEISED of an indictment, supporting material, and related documents filed by the Office of the Prosecutor ("the Prosecutor") concerning Ljubomir Borovcanin;

HAVING HEARD the Prosecutor pursuant to Rules 47 and 53 of the Rules of Procedure and Evidence ("the Rules");

CONSIDERING on the basis of the material submitted by the Prosecutor that a. prima facie case against LJUBOMIR BOROVCANIN in respect of the crimes with which he is charged in the indictment has been established;

PURSUANT TO Article 19 of the Statute of the International Tribunal and Rules 47, 53, 53 bis, 54, 55 and 59 bis of the Rules;

HEREBY CONFIRM the indictment in respect of each and every count therein, and

ORDER that:

1. Copies of the arrest warrants shall be transmitted to the Prosecutor, who may transmit it to the International Stabilisation Force ("SFOR") and/or to the competent authorities of any Member State of the United Nations and Switzerland; 2. With the exception of SFOR or the authorities of any Member State of the United Nations or Switzerland to whom the Prosecutor decides, in her discretion, to transmit the arrest warrant, there shall be no public disclosure of the indictment, this decision, or the arrest warrant pertaining to Ljubomir Borovcanin until the arrest warrant is served on the accused or unless further ordered. 3. There shall be no public disclosure of the supporting materials until further order; and, 4. Other than to representatives of the Office of the Prosecutor, there shall be limited internal

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Done in English and the English text being authoritative.

Judge Wolfgang Schomburg International Tribunal

Dated this sixth day of September 2002 At The Hague, The Netherlands

[Seal of the Tribunall

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Order for Transmission of Warrant of Arrest and Order for Surrender Page 1 of 3

Case No. IT-96-23/2-I

Before: Judge Wolfgang Schomburg

Registrar: Mr. Hans Holthuis

Order of: 6 September 2002

THE PROSECUTOR v. GOJKO JANKOVIC

WARRANT OF ARREST ORDER FOR SURRENDER

To: the Prosecutor of the International Tribunal

I, Judge Wolfgang Schomburg of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ("International Tribunal");

HAVING BEEN DESIGNATED as duty Judge by the President of the International Tribunal pursuant to Rule 28 of the Rules of Procedure and Evidence of the International Tribunal ("Rules") for the period of 30 August to 6 September 2002;

PURSUANT TO United Nations Security Council Resolution 827 of 25 May 1993, and Articles 19 (2) and 29 of the Statute of the International Tribunal ("the Statute") and Rules 54 to 61 of the Rules;

BEING SEISED of an application filed by the Office of the Prosecutor ("the Prosecutor") on 3 September 2002 requesting a warrant of arrest and order for surrender of the accused GOJKO JANKOVIC;

BEING SEISED also of an application tiled by the Prosecutor on 3 September 2002 requesting that her previous motion of 30 August 2002 for a warrant of arrest and order for surrender of the said accused, and for orders regarding their transmission, be withdrawn;

NOTING the Amended Indictment submitted by the Prosecutor against the accused GOJKO JANKOVIC, confirmed by Judge Nieto-Navia, a Judge of the International Tribunal on 7 October 1999, a copy of which is annexed to this warrant of arrest;

HEREBY DIRECT and authorise the Prosecutor or her representative to search for, arrest and surrender to the International Tribunal:

GOJKO JANKOVIC, son of Danilo, born on 31 October 1954 in the village of Trbusce in the municipality of Foca and a permanent resident of Foca at I.G. Kovacica Street. GOJKO JANKOVIC previously lived in Herceg Novi, Montenegro. Prior to the take-over of Foca, he worked in the Sipad Maglic Company and owned a café in Trnovaca. GOJKO JANKOVIC was a sub- commander of the military police and one of the main paramilitary leaders in Foca.

Alleged to have committed between about April 1992 and February 1993 in the territory of the

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Order for Transmission of Warrant of Arrest and Order for Surrender Page 2 of 3

Republic of Bosnia and Herzegovina the following crimes: Violations of the Laws or Customs of War and Crimes against Humanity, punishable under Articles 3 and 5 of the Statute.

And to advise the said GOJKO JANKOVIC, at the time of the arrest, in a language he understands, of his rights as set forth in Article 21 of the Statute and, mutatis mutandis, in Rules 42 and 43 which are annexed hereto, of his right to remain silent, and to caution him that any statement he makes shall be recorded and may be used against him in evidence. The Amended Indictment and review of the Indictment (and all other documents annexed to the present warrant of arrest) must also be brought to the attention of the accused. A copy of the Amended Indictment, in a language which he understands, must be given to the accused.

ORDER the Prosecutor or her representatives, upon the arrest of GOJKO JANKOVIC, to promptly notify the Registrar of the International Tribunal so that he may be transferred to the International Tribunal;

DIRECT the Registrar of the International Tribunal to ensure that GOJKO JANKOVIC is brought promptly and without delay before a Trial Chamber or permanent Judge pursuant to Rule 62;

DIRECT the Prosecutor or her representatives to report forthwith to the Registrar of the International Tribunal if they are unable to execute this warrant of arrest and to indicate the reasons for such non-execution, and;

DECLARE that the Prosecutor's motion of 30 August 2002 for a warrant of arrest and order for surrender of the said accused, and for orders regarding their transmission, is withdrawn, as well as any warrant or order subsequently granted thereupon.

Done in English and French, the English text being authoritative.

Dated this 6th day of September 2002 At The Hague The Netherlands

Judge Wolfgang Schomburg

[Seal of the Tribunal]

Case No. IT-96-23/2-I

Before: Judge Wolfgang Schomburg

Registrar: Mr. Hans Holthuis

Order of: 6 September 2002

THE PROSECUTOR v. GOJKO JANKOVIC

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Order for Transmission of Warrant of Arrest and Order for Surrender Page 3 of 3

ORDER FOR TRANSMISSION OF WARRANT OF ARREST AND ORDER FOR SURRENDER

To: the Registrar of the International Tribunal

BEING SEISED of an application filed by the Office of the Prosecutor ("the Prosecutor") on 3 September 2002 requesting a warrant of arrest and order for surrender of the accused GOJKO JANKOVIC;

CONSIDERING the Amended Indictment submitted by the Prosecutor against the accused GOJKO JANKOVIC, confirmed by Judge Nieto-Navia, a Judge of the International Tribunal on 7 October 1999;

CONSIDERING the warrant of arrest and order for surrender of this accused signed and issued by me on 6 September 2002, directing the Prosecutor or her representatives to search for, arrest and surrender the accused GOJKO JANKOVIC to the International Tribunal;

PURSUANT TO Rules 28, 536«. 54, 55 and 59bis of the Rules;

ORDER that copies of the warrant of arrest and order for surrender shall be transmitted to the Prosecutor, who may transmit it to the International Stabilisation Force ("SFOR") and/or to the competent authorities of any Member State of the United Nations and Switzerland.

Done in English and French, the English text being authoritative.

Judge Wolfgang Schomburg

Dated this 6th day of September 2002 At The Hague The Netherlands

(Seal of the Tribunal]

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Order for Transmission of Warrant of Arrest and Order for Surrender Page 1 of 3

Case No, IT_-9_7-_25:I

Before: Judge Wolfgang Schomburg

Registrar: Mr. Hans Holthuis

Order of: 6 September 2002

THE PROSECUTOR v. MITAR RASEVIC

WARRANT OF ARREST

ORDER FOR SURRENDER

To: the Prosecutor of the International Tribunal

HAVING BEEN DESIGNATED as duty Judge by the President of the International Tribunal pursuant to Rule 28 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules") for the period of 30 August to 6 September 2002;

PURSUANT TO United Nations Security Council Resolution 827 of 25 May 1993, and Articles 19 (2) and 29 of the Statute of the International Tribunal ("the Statute") and Rules 54 to 61 of the Rules;

BEING SEISED of an application filed by the Office of the Prosecutor ("the Prosecutor") on 3 September 2002 requesting a warrant for arrest and order for surrender of the accused MITAR RASEVIC;

BEING SEISED also of an application filed by the Prosecutor on 3 September 2002 requesting that her previous motion of 30 August 2002 for a warrant of arrest and order for surrender of the said accused, and for orders regarding their transmission, be withdrawn;

NOTING the Indictment submitted by the Prosecutor against the accused MITAR RASEVIC, confirmed by Judge Lai Chand Vohrah, a Judge of the International Tribunal on 17 June 1997, a copy of which is annexed to this warrant of arrest;

HEREBY DIRECT and authorise the Prosecutor or her representatives to search for, arrest, and surrender to the International Tribunal:

MITAR RASEVIC, son of Djordjc, born on 1 January 1940, in the village of Cagust, municipality of Foca; a teacher of sociology who resides in Foca. Before and during the war, until at least October 1994, MITAR RASEVIC was the commander of the KP Dom guards;

Alleged to have committed between April 1992 and October 1994 in the territory of the Republic of

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Order for Transmission of Warrant of Arrest and Order for Surrender Page 2 of 3

Bosnia and Herzegovina the following crimes: Grave Breaches of the Geneva Conventions of 1949, Violations of the Laws or Customs of War and Crimes against Humanity punishable under Articles 2, 3 and 5 of the Statute.

And to advise the said MITAR RASEVIC at the time of the arrest, in a language he understands, of his rights as set forth in Article 21 of the Statute and, mutatis mutandis, in Rules 42 and 43 which are annexed hereto, of his right to remain silent, and to caution him that any statement he makes shall be recorded and may be used against him in evidence. The Indictment and review of the Indictment (and all other documents annexed to the present warrant of arrest) must also be brought to the attention of the accused. A copy of the Indictment, in a language which he understands, must be given to the accused.

ORDER the Prosecutor or her representatives, upon the arrest of MITAR RASEVIC, to promptly notify the Registrar of the International Tribunal so that he may be transferred to the International Tribunal;

DIRECT the Registrar of the International Tribunal to ensure that MITAR RASEVIC is brought promptly and without delay before a Trial Chamber or permanent Judge pursuant to Rule 62;

Done in English and French, the English text being authoritative.

Dated this 6th day of September 2002 At The Hague The Netherlands

Judge Wolfgang Schomburg

[Seal of the Tribunal]

Case No. IT_-97-25_-I

Before: Judge Wolfgang Schomburg

Registrar: Mr. Hans Holthuis

Order of: 6 September 2002

THE PROSECUTOR v. MITAR RASEVIC

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Order for Transmission of Warrant of Arrest and Order for Surrender Page 3 of 3

ORDER FOR TRANSMISSION OF WARRANT OF ARREST AND ORDER FOR SURRENDER

To: the Registrar of the International Tribunal

BEING SEISED of an application filed by the Office of the Prosecutor ("the Prosecutor") on 3 September 2002 requesting a warrant of arrest and order for surrender of the accused MITAR RASEVIC;

CONSIDERING the Indictment submitted by the Prosecutor against the accused MITAR RASEVIC, confirmed by Judge Lai Chand Vohrah, a Judge of the International Tribunal on 17 June 1997;

PURSUANT TO Rules 28, Slbis, 54, 55 and 59bis of the Rules;

Done in English and French, the English text being authoritative.

Judge Wolfgang Schomburg

Dated this 6th day of September 2002 At The Hague The Netherlands

[Seal of the Tribunal]

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Order tbr Transmission of Warrant of Arrest and Order for Surrender Page 1 of 3

Case No. IT-97-25-I

Before: Judge Wolfgang Schomburg

Registrar: Mr. Hans Holthuis

Order of: 6 September 2002

THE PROSECUTOR v. SAVO TODOVIC

WARRANT OF ARREST ORDER FOR SURRENDER

To: the Prosecutor of the International Tribunal

I, Judge Wolfgang Schomburg, Judge of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ("International Tribunal");

PURSUANT TO United Nations Security Council Resolution 827 of 25 May 1993, and Articles 19 (2) and 29 of the Statute of the International Tribunal ("the Statute") and Rules 54 to 61 of the Rules;

BEING SEISED of an application tiled by the Office of the Prosecutor ("the Prosecutor") on 3 September 2002 requesting a warrant of arrest and order for surrender of the accused SAVO TODOVIC;

BEING SEISED also of an application filed by the Prosecutor on 3 September 2002 requesting that her previous motion of 14 August 2002 for a warrant of arrest and order for surrender of the said accused, and for orders regarding their transmission, be withdrawn;

NOTING the Indictment submitted by the Prosecutor against the accused SAVO TODOVIC, confirmed by Judge Lai Chand Vohrah, a Judge of the International Tribunal on 17 June 1997, a copy of which is annexed to this warrant of arrest;

HEREBY DIRECT and authorise the Prosecutor or her representatives to search for, arrest and surrender to the International Tribunal:

SAVO TODOVIC, son of Vladimir, born on 11 December 1952, in the village of Rijeka, permanent resident of Foca, and who worked in the KP Dom prison from 4 January 1974 until at least October 1994. He was second in command of the KP Dom prison staff from April 1992 until at least August 1993;

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Alleged to have committed between April 1992 and October 1994 in the territory of the Republic of Bosnia and Herzegovina the following crimes: Grave Breaches of the Geneva Conventions of 1949, Violations of the Laws or Customs of War, and Crimes against Humanity punishable under Articles 2, 3 and 5 of the Statute.

And to advise the said SAVO TODOV1C at the time of the arrest, in a language he understands, of his rights as set forth in Article 21 of the Statute and, mutatis mutandis, in Rules 42 and 43 which are annexed hereto, of his right to remain silent, and to caution him that any statement he makes shall be recorded and may be used against him in evidence. The Indictment and review of the Indictment (and all other documents annexed to the present warrant of arrest) must also be brought to the attention of the accused. A copy of the Indictment, in a language which he understands, must be given to the accused.

ORDER the Prosecutor or her representatives, upon the arrest of SAVO TODOVIC, to promptly notify the Registrar of the International Tribunal so that he may be transferred to the International Tribunal;

DIRECT the Registrar of the International Tribunal to ensure that SAVO TODOVIC is brought promptly and without delay before a Trial Chamber or permanent Judge pursuant to Rule 62;

DECLARE that the Prosecutor's motion of 14 August 2002 for a warrant of arrest and order for surrender of the said accused, and for orders regarding their transmission, is withdrawn, as well as any warrant or order subsequently granted thereupon.

Done in English and French, the English text being authoritative.

Dated this 6th day of September 2002 At The Hague The Netherlands

Judge Wolfgang Schomburg

[Seal of the Tribunal]

Case No. IT-97-25-I

Before: Judge Wolfgang Schomburg

Registrar: Mr. Hans Holthuis

Order of: 6 September 2002

THE PROSECUTOR v.

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SAVO TODOVIC

ORDER FOR TRANSMISSION OF WARRANT OF ARREST AND ORDER FOR SURRENDER

To: the Registrar of the International Tribunal

BEING SEISED of an application filed by the Office of the Prosecutor ("the Prosecutor") on 3 September 2002 requesting a warrant of arrest and order for surrender of the accused SAVO TODOVIC;

CONSIDERING the Indictment submitted by the Prosecutor against the accused SAVO TODOVIC, confirmed by Judge Lai Chand Vohrah, a Judge of the International Tribunal on 17 June 1997;

PURSUANT TO Rules 28, 53 bis. 54, 55 and 59bis of the Rules;

Done in English and French, the English text being authoritative.

Judge Wolfgang Schomburg

Dated this 6th day of September 2002 At The Hague The Netherlands

[Seal of the Tribunal|

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CaseNo.:IT-02-62-I

BEFORE A JUDGE OF THE TRIBUNAL

Before: Judge Liu Daqun

Registrar: Mr. Hans Holthuis

Date filed: 20 September 2002

PROSECUTOR v. JANKO BOBETKO

WARRANT OF ARREST

ORDER FOR SURRENDER

To the Republic of Croatia

I, Judge Liu Daqun, Judge of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal"):

CONSIDERING that the indictment submitted by the Prosecutor against Janko BOBETKO, as confirmed by me on 17 September 2002, a copy of which is annexed to this Warrant of Arrest and Order for Surrender";

NOTING that there is reason to believe that Janko BOBETKO may be present in the Republic of Croatia;

CONSIDERING Articles 19 (2) and 29 of the Statute of the International Tribunal ("Statute") and Rules 54 to 61 of the Rules of Procedure and Evidence of the International Tribunal ("Rules");

HEREBY DIRECT the authorities of the Republic of Croatia to search for, arrest, and surrender to the International Tribunal:

Janko BOBETKO, retired Corps General of the Croatian army, born on 10 January 1919 in the Sisak region of the Republic of Croatia;

Alleged to have committed in the territory of the Republic of Croatia, between 9 and 17 September 1993, violations of the laws or customs of war and crimes against humanity, which are punishable under Articles 3 and 5 of the Statute, respectively.

And to advise the said Janko BOBETKO at the time of his arrest, and in a language he understands, of his rights set forth in Article 21 of the Statute and, mutatis mutandis, in Rules 42 and 43 of the Rules which are annexed hereto, of his right to remain silent, and to caution him that any statement

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Warrant of Arrest, Order for Surrender Page 2 of 2

he makes shall be recorded and may be used in evidence. The indictment and review of the indictment (and all other documents annexed to the present warrant) must also be brought to the attention of the accused and a copy of said indictment, in a language he understands, must be handed to him.

REQUEST that the authorities of the Republic of Croatia, upon the arrest of Janko BOBETKO, promptly notify the Registrar of the International Tribunal, for the purposes of his transfer pursuant to Rule 57 of the Rules;

REQUEST that the authorities of the Republic of Croatia, report forthwith to the Registrar of the International Tribunal if it is unable to execute the present warrant of arrest, indicating the reasons for its inability pursuant to Rule 59(A) of the Rules;

HEREBY AUTHORISE the Prosecutor to deliver this warrant to the Government of Croatia.

Done in English and French, the English text being authoritative.

Dated this twentieth day of September 2002, The Hague, The Netherlands

Judge Liu Daqun Judge of the International Criminal Tribunal for the Former Yugoslavia

[Seal of the Tribunal]

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UNITED NATIONS

International Tribunal for thé Case No. IT-95-5/18-I Prosecution of Persons Responsible for Serious Violations of Date: 8 November 2002 International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 Original: English

THE CONFIRMING JUDGE

Before: Judge Alphons Orie

Registrar: Mr. Hans Holthuis

Decision of: 8 November 2002

PROSECUTOR

RATKO MLADIC

ORDER GRANTING LEAVE TO FILE AN AMENDED INDICTMENT AND CONFIRMING THE AMENDED INDICTMENT

Office of the Prosecutor:

Andrew Cayley

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1. I, Judge Alphons One, Judge of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal"), am seized of the Prosecution's "Motion for Leave to File an Amended Indictment, for Confirmation of the Amended Indictment and for an Order in Terms of Rules 53(A) and 59 bis(A) - in support of which is attached a memorandum1" as assigned to me by the President of the Tribunal;

I- Procedural Background

2. Pursuant to Rule 50 of the Rules of the Procedure and Evidence (the "Rules"), the Prosecution is seeking leave to amend its two outstanding indictments against Ratko Mladid filed under case numbers ΓΓ-95-5-Ι (hereinafter the "First Indictment") and ΓΓ-95-18-Ι (hereinafter the "Second Indictment"). In their place, the Prosecution has submitted a new consolidated indictment (hereinafter "the Amended Indictment") and is requesting that it be confirmed. The Prosecution explained its reason to me in my Chambers on 17 October 2002 and the next day, 18 October 2002, filed an addendum to the supporting material it had submitted on 11 October 2002.

3. The First Indictment was originally filed on 24 July 1995 and confirmed by Judge Jorda on 25 July 1995. The sixteen-counts contained therein charge both Radovan Karadiie and Ratko Mladid with genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949 and violations of the laws and customs of war. The indictment states inter alia that Ratko Mladid, the former commander of the Bosnian §erb army, is responsible for serious violations of international humanitarian law committed by Bosnian Serb forces in Bosnia and Herzegovina from May 1992 through July 1995. These acts include the detention under horrific conditions of civilian Bosnian Muslims and Croats in a network of prison camps; the plunder and destruction of Muslim and Croat property, including religious and cultural institutions; the forcible expulsion or deportation of thousands of civilians from their homes in an effort to eliminate the Muslim and Croat population in certain parts of Bosnia and Herzegovina; the shelling of civilian gatherings in Sarajevo, Srebrenica, Éepa, Gorazde, Bihaé and Tuzla; a systematic sniping campaign against civilians in Sarajevo; and the taking of United Nations peacekeepers as hostages and human shields.

4. The Second Indictment was filed on 15 November 1995 and was confirmed by Judge Riad on 16 November 1995. It charges that Radovan Karadzié and Ratko Mladie are responsible for serious violations of international humanitarian law committed by Bosnian Serb forces during

"Memorandum in Support of Prosecutor's Motion for Leave to File an Amended Indictment, for Confirmation of the

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the take-over of the "safe area" of Srebrenica in Bosnia and Herzegovina in July 1995. During and immediately after the military take-over of the enclave, it is alleged that thousands of Bosnian Muslim civilian men were systematically executed in a variety of locations. The twenty-count Second Indictment includes the charges of genocide, crimes against humanity and violations of the laws and customs of war.

5. Further to these indictments, arrest warrants were issued and then sent to the Federal Republic of Yugoslavia, the Republic of Bosnia and Herzegovina and the Bosnian Serb administration in Pale. Radovan Karadîic' and Ratko Mladid however were not arrested. On 18 June 1996, in accordance with a procedure set out in Rule 61, the Confirming Judges ordered that both indictments be submitted to a Trial Chamber for review. Hearings were held over several days in June and July 1996. On 11 July 19%, on the basis of testimony and the supporting material of the indictment, the Trial Chamber issued a Decision in which it ordered that international arrest warrants be served on "all States". In addition, the Trial Chamber invited the Prosecution to supplement the indictments and, in particular, to add to the genocide charge (based on Article 7(3) of the Statute) the allegation of responsibility under Article 7(1) of the Statute.

6. On 18 May 2000, the Prosecutor submitted an amended indictment against Radovan Karadiid. Leave to amend the First and Second Indictments against Radovan Karadïid was granted by Judge Wald on 31 May 2000. Satisfied that the Prosecution had established a prima facie case on all the counts of the amended indictment, she confirmed it and noted that the Prosecution had not sought leave to amend the indictments against Ratko Mladid.

II- The Amended Indictment

7. As set out above, on 11 October 2002, the Prosecution requested leave to amend the two outstanding indictments against Ratko Mladid and confirmation of the Amended Indictment. The Prosecution submitted that the Amended Indictment consolidated the First and Second Indictments and reduced the total number of charges, leaving only the most serious ones. The Prosecution submits that the amendments are more in keeping with the current charging practices of its Office and reflect the evolving jurisprudence of the International Tribunal.2 It also submits that the Amended Indictment would provide an appropriate basis for a motion of

Amended Indictment, and for an Order in Terms of Rules 53(A) and 59 bis (A)". 2 Memorandum in Support of the "Prosecutor's Motion for Leave to File an Amended Indictment, for Confirmation of the Amended Indictment, and for an Order in Terms of Rules 53 (A) and 59 bis (A)" filed on 11 October 2002, para 16. 2 Case No.: ΓΤ-95-5/18-Ι 8 November 2002 ICC-02/04-14-AnxA 13-02-2007 302/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 302/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

joinder with the Amended Indictment against Radovan Karadzic* already approved on 31 May 2000.3

8. The following changes, among others, appear in the Amended Indictment. The facts underlying the charge of genocide in the First and Second Indictments are now incorporated into one count of genocide and one count of complicity in genocide (counts 1 and 2 respectively). The facts underlying the charge of persecution of the First Indictment are now incorporated into count 3 in the Amended Indictment. The facts underlying the charge of extermination and murder in the Second Indictment are now incorporated into counts 4, 5 and 6 in the Amended Indictment. The facts underlying the charges in counts 10-12 of the First Indictment are now incorporated into counts 10, 11, 13 and 14 of the Amended Indictment. The facts underlying the charge of taking of hostages are now incorporated into count 15 in the Amended Indictment.

9. Counts 3 to 9,13, 15 and 16 of the First Indictment (unlawful confinement of civilians, outrages upon personal dignity, deliberate attack on the civilian population and individual civilians, destruction or wilful damage to institution dedicated to religion, destruction of property, appropriation of property, plunder of public or private property, taking civilians as hostage, inhumane treatment and cruel treatment) have been eliminated. However, the factual allegations underlying these charges have been shifted to support the remaining counts in the new indictment. Counts 3 to 20 of the Second Indictment (murder) have been deleted but, here too, the factual allegations underlying these charges have been shifted to support the remaining counts.

10. Several new charges have been added, namely: Count 2 (complicity in genocide); Count 7 (deportation); Count 8 (inhumane acts-forcible transfer); Count 9 (unlawful infliction of terror on civilians); and Count 12 (cruel treatment). The Amended Indictment also lists precisely the municipalities in which the crimes were allegedly committed and for which the responsibility of Ratko Mladié is entailed. Furthermore, the Amended Indictment expressly argues that Ratko Mladid participated in a joint criminal enterprise as a co-perpetrator and/or aider and abettor and emphasises the responsibility of Ratko Mladid for all the natural and foreseeable consequences of the execution of the joint criminal enterprise.

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III- The applicable test for review of the Amended Indictment

11. Before confirming the Indictment submitted pursuant to Articles 18 and 19 of the Amended Statute of the International Tribunal (hereinafter "the Statute"),4 and Rule 47 of the Rules, I must be satisfied that the Prosecution has established a prima facie case.

12. The Statute does not define the concept of a prima facie case. The lack of such a definition is reflected in the case-law of the Tribunal. Reviewing judges, in determining whether a prima facie case has been established, have sometimes determined a test to be applied but no unanimously adopted interpretation of the concept of prima facie has emerged. I will provide several examples of this.

13. In August 1995, Judge Sidhwa confirmed the indictment against the accused Rajid pursuant to Rule 47 which provides that the Prosecution shall submit an indictment if there are reasonable grounds for believing that a suspect has committed a crime and noted that the rule interprets Article 19 of the Statute.5 Judge Riad, in November 1995, accepted that interpretation and confirmed the Indictments against the accused MrkSi<5, Karadïié and Mladid. In both cases, he stated that there was sufficient evidence to provide reasonable grounds for believing that the accused had committed the crimes charged.6

14. In November 1995 also, Judge Kirk MacDonald reviewed the indictment against Kordia el aL1 and was not satisfied that Rule 47, which applied to Article 18(4) of the Statute, was a satisfactory interpretation of Article 19 of the Statute. Seeking another interpretation, she turned to the commentary of Article 27 of the draft Statute for an International Criminal Court ("ICC") adopted by the International Law Commission in 1994 which states that "a prima facie case for this purpose is understood to be a credible case which would (if not contradicted by the

4 Article 18-4 of the Statute "Investigation and Preparation of Indictment" provides that: "Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. The indictment shall be transmitted to a judge of the Trial Chamber"; Article 19 of the Statute "Review of an Indictment" provides that "1. The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall be dismissed. 2. Upon confirmation of an indictment, the judge may, at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial". 5 Prosecutor v Rajic', Review of the Indictment, Case No. ΓΓ-95-12-Ι, 29 August 1995. Judge Sidhwa stated that the expression "prima facie case" was not grounded in "any uniform principle or set parameters" so far as international law was concerned. 6 Prosecutor v Mrfcïicf et al.. Confirmation of Indictment, Case No. ΓΓ-95-13-Ι, 7 November 1995; Prosecutor v Karudlic" and Mladic', Review of the Indictment, Case No. ΓΓ-95-5/18/Ι, 16 November 1995. 7 Prosecutor v Kordié et al. Decision on Review of the Indictment, Case No. ΓΓ095-14-Ι, 10 November 1995. 4 Case No.: IT-95-5/18-I 8 November 2002 ICC-02/04-14-AnxA 13-02-2007 304/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 304/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

Hol,?

Defence) be a sufficient basis to convict the accused on the charge".8 This interpretation was subsequently applied by other Confirming Judges.9

15. In 2001, Judge Hunt, the Confirming Judge in the Milosevic? et al. case who had previously applied the test used by Judge Kirk McDonald,10 stated that ever since 1999 there had been considerable investigation into the definition of & prima facie case.11 Quoting various decisions on acquittal and the Delalié Appeal Judgement, Judge Hunt considered that, although the test was, in substance, the same, the definition of & prima facie case was now expressed as "whether there is evidence (if accepted) upon which a reasonable trier of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question".12

16. That formulation originates from the test the Judges applied when ruling on a motion for a judgement of acquittal, presented pursuant to Rule 98 bis, once the Prosecution case has been tested by the Defence, that is, at a stage of the proceedings subsequent to the review of the indictment.13 On that basis, Judge May in the MiloSevio et al. case considered that the test for review of an indictment as formulated in 1995 by Judge Kirk McDonald was the most appropriate for that stage of the proceedings.14

17.1 note however that although Judge Kirk McDonald adopted the test set out in the draft Statute for the ICC,15 the Rome Statute of the ICC of 1998 adopted a different one. Whereas Article 58 of the Statute states that a suspect may be arrested and detained if there are reasonable grounds for believing that he/she committed the crimes charged, Article 61(7) requires that there be sufficient evidence to establish substantial grounds for believing that the accused committed each of the crimes charged in order for him/her to be put on trial.

18. As seen above, no generally accepted and uniformly applied definition of what constitutes a prima facie case in the Tribunal exists.16 In the absence of such a definition in the Tribunal and

8 Ibid, at 2-3, adopting the Report of the International Law Commission (containing both the Draft Statute and its commentary), UN Document A/49/10 (1994), at 94-95. 9 See e.g.. Prosecutor v Miloîevic" et al. Décision on Application to Amend Indictment and on Confirmation of Amended Indictment, Case No ΓΓ-99-37-1,29 June 1999, para 4, footnote omitted (Judge Hunt confirming). 10 See footnote 9. 11 Prosecutor v Milosevic" et al. Decision on Application to Amend Indictment and on Confirmation of Amended Indictment, Case No ΓΓ-99-37-1,29 June 2001, para 3, footnote omitted. 12 Ibid. n See e.g., Prosecutor v Jelisid, Appeal Judgement, Case No. ΓΓ-95-10-Α, 5 July 2001, para 36. 14 Prosecutor v Miloievid et al, Decision on Review of Indictment, Case No ΓΓ-99-37-1,22 November 2001, para 14. 15 See footnote 8. 16Judge Sidhwa reviewed international law sources and concluded that the expression prima facie was not grounded on uniform principle or parameters so far as international law was concerned, see supra footnote 5. 5 Case No.: ΓΓ-95-5/18-Ι 8 November 2002 ICC-02/04-14-AnxA 13-02-2007 305/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 305/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

in customary or conventional law,17 it may be of assistance to turn to screening mechanisms in domestic criminal procedure systems which deal with the question whether there is a case for a suspect or an accused to answer, whether he can be put on trial.

19. In most18 of the domestic systems I consulted, I found that the courts hand down decisions in respect of that question at the end of the pre-trial proceedings and before the commencement of the trial. Once the prosecution or a pre-trial judge considers that the pre-trial investigations or examinations have been completed, a hearing is held during which the accused may contradict or otherwise challenge the Prosecution evidence. The judge, a panel of judges19 or a jury then decides whether it is justified to proceed against the accused at trial. Such decisions necessarily involve a provisional assessment of the strength of the case. It is worth noting that while in the Tribunal the review of the indictment is coeval with the decision on the arrest of the accused, in most domestic jurisdictions an arrest warrant or order for detention may be issued before the charges held against a suspect are confirmed. Thus, a provisional assessment of the strength of the prosecution's case is made before the confirmation of the charges20 on the basis of a standard of proof usually lower so as to take into consideration the early stage of the proceedings.21

20. In examining decisions concerning whether to send the accused to trial, I noted that the standard of proof to assess the strength of the case, including both its legal and factual elements, is sometimes formulated negatively to indicate when the accused should be discharged. For example, if, on the basis of all the evidence, the Judge believes that a sufficient case has not been made in order to justify bringing the accused to trial,22 or if the evidence23 or rational indicia24 are insufficient, the accused should be discharged. At times, however, decisions to proceed and to try the accused are formulated positively,25 namely if "there is sufficient

11 Ibid. 18 In the Rwandan system of criminal procedure e.g., I fail to find such a mechanism. 19 We find such panels of judges, e.g., in the (amended) 1953 Criminal Procedural Code of the SFRY (art. 249) and in the 1977 Criminal Procedural Code (art. 270) of the SFRY. 20 Then the test is whether the case against the accused is strong enough to justify, if other requirements are also met, that he will remain in pre trial custody, e.g., the initial appearance in the United States of America. 21 A lower standard of proof is similarly applied, in the Tribunal, at an early stage of the proceedings by the Prosecution when applying for a review of an indictment, see Rule 47 (B). 22 These wordings are for instance used in Article 548.1 of the Criminal Code of Canada and Article 135 of the South African Criminal Procedure Act. The evidence will certainly be insufficient if it appears that the accused has not committed the offence, as Article 425 of the Codice di Procedura Penale (Italian Code of Criminal Procedure) puts it. 23 Article 177 of the Code de Procédure Pénale (French Code of Criminal Procedure) provides "s'il n'existe pas de charges suffisantes contre la personne [...]" or Schedule 3 to the Crime and Disorder Act 1998 (England) "if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him [...]". 24 Article 637 of the Ley de Enjuiciamiento (Spanish Act on Criminal Procedure) "Cuando no existan indicios racionales [...]". " See e.g., return of an indictment by a grand jury in the United States of America or the Eröffnungsbeschluß under Article 203 of the German Code of Criminal Procedure (StPO). 6 Case No.: ΓΓ-95-5/18-Ι 8 November 2002 ICC-02/04-14-AnxA 13-02-2007 306/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 306/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

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evidence to put the accused on trial for the offence" 26 or if, on the basis of the pre-trial investigations, the suspicion has been sufficiently substantiated.27

21. Differences in domestic systems are not limited to the formulation of the applicable standard. The procedural context can differ as well. Sometimes screening takes place without the accused's having been informed, sometimes after a hearing in which he/she appears or may appear. In some legal systems the accused must apply for screening of the prosecutor's case28 whereas in others a decision will, as a rule, precede the commencement of the trial. However different the domestic systems in this respect may be, the function of such screening, I believe, is the same everywhere and serves the same purpose which I see served in Article 19 of the Statute.

22. The purpose of the above-mentioned screening mechanisms is to protect the accused against oppressive unfounded charges. Standing trial is a difficult experience and an accused should not be put on trial if, from the very outset, a conviction is unlikely. The French text of Article 19 of the Statute also seems to express this concept. It states that when the Prosecutor "a établi qu'au vu des présomptions, il y a lieu d'engager des poursuites", the reviewing Judge shall confirm the Indictment. In French, the standard of proof which is implied is that there must be reasonable grounds to proceed and to put the defendant on trial. The French text does not seem to concern itself primarily with an unequivocal expression of the standard of the evidence to be presented but rather with the question of whether the evidence justifies proceeding against the accused. Still, it is self-evident that a decision as to whether it is reasonable to send an accused to trial always depends on there being realistic expectations that he/she will be convicted.

23. The gravity of the crimes over which the Tribunal exercises its jurisdiction makes me cautious. To stand trial for such offences is more burdensome than is usually already the case for common crimes. However, those persons who have come forward as the victims of the alleged crimes may legitimately trust that the Tribunal will not discharge a suspect or an accused lightly.29 This would be the case if the Prosecutor were not allowed to proceed when there is a

26 Article 548.1 of the Criminal Code of Canada. 27 Article 203 of the Strafprozessordung (German Code of Criminal Procedure) 28 E.g., under the English Crime and Disorder Act 1998, Schedule 3 (2-(l)) the person sent for trial may apply for a dismissal of the charges. Before that Act came into effect a screening of the available evidence would take place in Committal Proceedings. Although usually it is the accused who seeks review, in the South African system the prosecutor is exclusively entitled to initiate the preliminary examination that may result in an early discharge of the accused (Art. 135 of the South African Criminal Procedure Act). 29 A dismissal under Rule 47 (F) does not preclude the Prosecution from subsequently bringing an amended indictment against the same person if supported by additional evidence under Rule 47 (I). 7 CaseNo.:IT-95-5/18-I 8 November 2002 ICC-02/04-14-AnxA 13-02-2007 307/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 307/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

realistic prospect of a conviction on the basis of the evidence presented. The Trial Chamber however must make the final determination as to the guilt or innocence of the accused.

24. Another aspect I take into consideration is that in the legal system of the Tribunal, unlike in most criminal procedure systems, the accused has not yet had the opportunity to contradict or challenge the evidence. The likelihood of the accused's being convicted on the exclusive basis of unchallenged and uncontradicted evidence is higher. I agree that this aspect does not make it possible to apply a low standard of proof.

25.1 further take into consideration the fact that the screening of the strength of a case before the Tribunal occurs at a relatively early stage of the proceedings and not, as in most domestic legal systems, immediately before the commencement of the trial.

26. For all these reasons and having regard to both the English and French texts, I will discharge my duty under Article 19 of the Statute and allow the Prosecutor to proceed to trial against the accused on the condition that the Prosecution evidence, if accepted and uncontradicted, sufficiently supports the likelihood of the accused's being convicted by a reasonable trier of fact.

IV- Conclusion and Orders

27.1 agree that the consolidated Amended Indictment will expedite the proceedings should Ratko Mladic" be arrested and therefore GRANT the Prosecution's request for leave to file the Amended Indictment.

28. On the basis of the material submitted by the Prosecution on 11 and 18 October 2002 and after having heard the Prosecution in Chambers on 17 October 2002,1 am satisfied that, if accepted and uncontradicted, the Prosecution evidence sufficiently supports the likelihood of the accused's being convicted by a reasonable trier of fact.

29. Accordingly, pursuant to Rule Article 19 of the Amended Statute of the International Tribunal and Rule 47,1 hereby CONFIRM the Amended Indictment in respect of each and every count therein.

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30. In addition, pursuant to Rules 50, 53, 53 bis, 54, 55 and 59 bis, I hereby ORDER that:

1- copies of the arrest warrant attached be transmitted to the Prosecutor, who may transmit them to the International Stabilisation Force ("SFOR") and/or to the competent authorities of any Member State of the United Nations;

2- copies of the arrest warrant be transmitted to the authorities of the Federal Republic of Yugoslavia, in particular, to the authorities of the Republic of Serbia and to the authorities of Republika Srpska; and,

3- there be no public disclosure of the supporting materials until further order.

Done in English and French, the English text being a thoritative.

toons One

Dated this eighth day of November 2002 At The Hague The Netherlands

CaseNo.:IT-95-5/18-I 8 November 2002 ICC-02/04-14-AnxA 13-02-2007 309/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 309/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

UNITED NATIONS

International Tribunal for thé Case No. IT-03-66-I Prosecution of Persons lh Responsible for Serious Violations of Date: 27 January 2003 International Humanitarian Law Committed in the Territory of English Former Yugoslavia since 1991 Original:

BEFORE A JUDGE OF THE TRIBUNAL

Duty Judge: Judge A min El Mahdi

Registrar: Mr. Hans Holthuis

Decision of: 27 January 2003

PROSECUTOR v. Fatmir LIMAJ, a.k.a. Çeliku Haradin BALA, a.k.a. Shala Isak MUSLIU, a.k.a. Qerqiz Agim MURTEZI, a.k.a. Murrizi

CONFIDENTIAL

CONFIRMATION OF INDICTMENT

Office of the Prosecutor:

Andrew Cayley Alex Whiting

Case No.: IT-03-66-I 27"' January 2003 ICC-02/04-14-AnxA 13-02-2007 310/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 310/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

I, Judge Amin El Mahdi, Judge of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("the Tribunal"), having been designated by the President as Duty Judge for the review of an indictment under Rule 28(A) of the Tribunal's Rules of Procedure and Evidence ("the Rules"):

BEING SEIZED of the Prosecution's "Motion for Confirmation of the Indictment, for the Issuance of Arrest Warrants and for Protective Measures", filed confidentially on 15th January 2003" ("the Motion"), to which was attached an indictment against Fatmir LIMAJ, a.k.a. Çeliku, born on 4th February 1971 in Banja (Kosovo), Haradin BALA, a.k.a. Shala, born on 10th June 1957 in Gornja (Kosovo), Isak MUSLIU, a.k.a. Qerqiz, bom on 31st October 1970 in Ra~ak (Kosovo), and Agim MURTEZ1, a.k.a. Murrizi, born on 20th February 1956 in Au~uljaga (Kosovo), (altogether "the Accused persons");

HAVING EXAMINED, under Rule 47(E) of the Rules, the Motion, the Indictment, the attached Supporting Material and the Addendum to the Supporting Material, but finding in the Indictment certain issues in need of further clarification;

HAVING HEARD the Prosecutor on the 22nd January 2003 pursuant to Rules 47 and 53 of the Rules on the matter;

HAVING ADJOURNED the review under Rule 47(F)(iv) so as to give the Prosecutor the opportunity to modify the indictment, upon which a revised indictment was submitted by the Prosecutor to me on the 24th January 2003 along with a Declaration of 15th January 2003 by Howard Tucker in Support of the Indictment, the latter filed confidentially and exporte;

TAKING INTO CONSIDERATION that pursuant to Article 19 of the Statute of the International Tribunal ("the Statute") and Rule 47 of the Rules, I must be satisfied on the basis of my examination of each of the counts set forth in the Indictment that the Prosecution has established a prima facie case;

NOTING that in the Indictment, the Accused persons are alleged to have committed in Kosovo within the territory of The Former Yugoslavia, the following crimes: Crimes Against Humanity (imprisonment, torture, cruel treatment and murder), punishable under Article 5 of the Statute, and

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Violations of the Laws and Customs of War (cruel treatment, torture and murder), punishable under Article 3 of the Statute; AFTER HAVING CAREFULLY EXAMINED each count in the revised indictment and considered the Supporting Material provided by the Prosecutor, including the statements of 4 witnesses, three of which were themselves victims of the alleged crimes, and the two Declarations made by Howard Tucker, the last of which was filed confidential and ex parte on 24 January 2003;

BEING THEREBY SATISFIED that Ά prima facie case has been made out by the Prosecutor in the case against the Accused in respect of the crimes for which they are charged in the Indictment;

PURSUANT to Article 19 of the Statute and Rules 47, 53, 54, 55 and 59bis of the Rules;

HEREBY CONFIRM the Indictment in respect of each and every count therein;

AND ORDER THAT 1. Copies of the Arrest Warrants for the Accused persons, addressed to the Prosecutor, the United Nations Mission in Kosovo ("UNMIK"), to the NATO Kosovo Force ("KFOR") and to the competent authorities of any State Member of the United Nations, shall be transmitted to the Prosecutor who may, in her discretion, transmit them to UN M IK, KFOR and/or the said authorities for search and apprehension of the Accused persons; 2. With the exception of UNMIK, KFOR and the said authorities, there shall be no disclosure of the Indictment, this Decision or the Arrest Warrants until the Arrest Warrants are served upon the Accused, or until further order; 3. There, in any case, be no public disclosure of the Supporting Material until further order;

Done in English and French, the English text being authoritative.

Judge Amin El Mahdi

Dated this twenty seventh day of January 2003 At The Hague The Netherlands

Case No.: 1T-03-66-1 27'" January 2003 ICC-02/04-14-AnxA 13-02-2007 312/312 SLPT ICC-02/04-14-US-Exp-AnxA 23-06-2005 312/312 UM Pursuant to Decision ICC-02/04-01/05-135, this document is reclassified as Public PT

(Seal of the Tribunal)

Case No.: IT-03-66-I 27th January 2003