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ASSISTANCE in the ICC Tipos De Cooperación Internacional Y Asistencia Jurídica En La Corte Penal Internacional1

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ASSISTANCE in the ICC Tipos De Cooperación Internacional Y Asistencia Jurídica En La Corte Penal Internacional1 Revista de Derecho Universidad San Sebastián 25/2019 www.rduss.cl TYPES OF INTERNATIONAL COOPERATION AND LEGAL ASSISTANCE IN THE ICC Tipos de cooperación internacional y asistencia jurídica en la Corte Penal Internacional1 Dimitris Liakopoulos Full professor in Fletcher School-Tufts University Chair of European Union Law & Full Professor of International and European Criminal and Procedural Law at the De Haagse Hogenschool-The Hague [email protected] 1 Recibido: 02-10-2018. Observado: 22.11.2018. Aceptado 29.11.2018 104 Revista de Derecho Universidad San Sebastián 25/2019 www.rduss.cl Summary 1. Introduction 2. Legal analysis of international cooperation under international criminal justice 3. Requests for assistance during inquiries 4. Consultations 5. Confidential information 6. Competing requests 7. Court assistance to States Parties participating in the Statute 8. Concluding remarks 9. Bibliography 105 Revista de Derecho Universidad San Sebastián 25/2019 www.rduss.cl ABSTRACT The present research work is focused on the legal analysis of the relevant articles of the International Criminal Court's Statute regarding the obligation of cooperation between States for the punishment of serious crimes against humanity and war. Judicial development, starting with ad hoc Tribunals and arriving at causes at various stages of proceedings still ongoing at the International Criminal Court, opens the doctrinal and comparative national debates, seeking to elaborate on specific topics such as requests for assistance during preliminary investigations, assistance during inquiries, consultations, confidential information, Court assistance to States parties participating in the statute, competing requests, suspending the execution of a request, the role of the Prosecutor and the non-assistance of some States that for political and not only reasons impede the development and operation of international criminal justice. Keywords: International cooperation, assistance during inquiries, consultations, confidential information, competing requests, role of Prosecutor, court assistance, ICC, international criminal justice. 106 Revista de Derecho Universidad San Sebastián 25/2019 www.rduss.cl 1. Introduction Since the International Criminal Court (ICC)2 does not have direct executive powers, or an apparatus for conducting investigations on its own and in exclusive way, investigations of crime as well as the acquisition of evidence usually fall into areas subject to state sovereignty and are based on national law3. National legislation, however, is often lacking in punishing certain crimes, particularly as regards the rules of jurisdiction, since it does not always provide for the power to seek and prosecute who is responsible for a crime or for damages of a foreign citizen, and therefore with respect to the phenomenon of internationalization of national jurisdiction. This also happens with offenses falling within the jurisdiction of ICC under the constitutional instrument. The ICC in order to exercise the necessary coercion for the purposes of justice in the territories of the States, ends up to depend on the procedural mechanism of cooperation. 2. Legal analysis of international cooperation under international criminal justice International cooperation seeks to realize: -an harmonized system of laws by all States, which will place particular emphasis on the general provisions of criminal codes and the definitions of the most serious offenses; -the definition of the area of the offending crimes of mankind so as to realize through international agreements a solid and effective system of criminal prosecution for serious offenses; -regulation of jurisdictional conflicts with the uniform provision of crimes against humanity that are not always “protected” and provided for in national criminal justice systems. Currently, we can distinguish between four forms of cooperation: extradition, mutual assistance, transfer of criminal proceedings and the enforcement of foreign judgments4. 2 The present work is updated until September 2018. See ex multis: A. BOWER, International Criminal Court, Wolf Legal Publishers, 2011. H. AHLBRECHT, Geschichte der völkerrechtlichen Strafgerichtsbarkeit im 20. Jahrhundert: Unter besonderer Berücksichtigung der völkerrechtlichen Straftatbestände und der Bemühungen um einen Ständigen Internationalen Strafgerichtshof, ed. Nomos, 1999. K. AMBOS, Der neue Internationale Strafgerichtshof-ein Überblick, in Neue Juristische Wochenschrift, 1998, pp. 3743-3746. K. AMBOS, Les fondements juridiques de la Cour penale internationale, in Revue Trimestrielle des Droits de l'Homme, 1999, pp. 739-772. A. ZIMMERMANN, The creation of a permanent International Criminal Court, in Max Planck Yearbook of United Nations Law, 1998, pp. 170ss. D.L. ROTHE, J. MEERNIK, P. INGADÖTTIR, The realities of international criminal justice, ed. Bruylant, 2013. C. SAFFERLING, International criminal procedure, Oxford University Press, 2012. C. VAN DEN HERIK, L. STAHN, Future perspectives on international criminal justice, T.M.C. Asser Press, 2010, pp. 586ss. WERKE, Völkerstrafecht, Mohr Siebeck, 2012. S. BECK, C. BURCHARD, B. FATEH MOGHADAM, Strafrechtsvergleichung als Problem und Lösung, ed. Nomos, 2011. G.M.PIKIS, The Rome Statute, the rules of procedure and evidence, the regulations of the Court and supplementary instruments, Martinus Nijhoff Publishers, 2010. C.J. CLARK, Peace, justice and the International Criminal Court: limitations and possibilities, in Journal of International Criminal Justice, 2011, pp. 537ss. B. KRZAN, Prosecuting international crimes: A multidisciplinary approach, ed. Brill, 2016. L.E. CARTER, M.S. ELLIS, C. CHERNOR, JALLOH, The International Criminal Court justice system, Edward Elgar Publishing, 2016. ** 3 See, G. WERLE, Völkerstrafecht, Mohr Siebeck, Tübingen, 2012. B. KRZAN, Prosecuting international crimes: A multidisciplinary approach, ed. Brill, 2016. E. LUDWIN KING, Big fish, small ponds: International crimes in National Courts, in Indiana Law Journal, 2015. A. DAVIDSON, Human rights protection before the International Criminal Court, in International Community Law Review, 2016, pp. 72ss. F. POLITI, M. GIOIA, The International Criminal Court and national jurisdictions, ed. Routledge, 2016. ** 4 Mutual recognition of judicial decisions does not only imply a further development of the depoliticization movement of judicial cooperation but tends to achieve a genuine copernican revolution of traditional judicial cooperation for the obvious overcoming of some dogmas of national sovereignty, and especially of Member States that have not agreed to take part in the adoption of 107 Revista de Derecho Universidad San Sebastián 25/2019 www.rduss.cl The rules governing international cooperation can be found both in international law laying down the rules applicable to inter-ethnic relations and in domestic law defining the measures, conditions and modalities that States perceive as cooperation. The results of regulatory processes developed within state and supranational levels differ in scope and regulatory technique, lacking coherence and specificity. These shortcomings therefore indicate the need for integration of judicial cooperation through mutual assistance aimed at a global codification that will enable states to be cumulative and alternative in order to ensure their effectiveness. Legislative approaches by which States adopt various forms of international judicial cooperation are not yet in a position to guarantee effective, solid and coordinated enforcement of judicial cooperation. The expression “judicial cooperation” refers to and includes activities that the judicial authority of a state carries out in relation to a pending criminal case or already celebrated in a foreign country. In this sense, the formula also appears to be synonymous with the notion of judicial assistance5, which concerns the execution of acts to facilitate the pursuit of judicial activity in a third party, as well as the transfer of proceedings and the enforcement of foreignpenalties. The jurisdiction of ICC is based on the principle of subsidiarity6 and/or complementarity7 in order to adjudicate “the most serious crimes of binding acts in the criminal field and above all in the community context. The aim is to create within the scope of the object and for the purposes indicated a hard podium under which mutual recognition would be impossible without the states being free to “maintain or introduce a higher level of protection for people”. See about the same argument: K. AMBOS, Internationales Strafrecht, C.H. Beck, 2006. SUOMINEN, The principle of mutual recognition in cooperation in criminal matters, ed. Intersentia, 2011. KLIP, European criminal kaw. An integrative approach, Second edition, ed. Intersentia, 2012. M. TOMAŠEK, Human rights as means of europeanization of criminal law, in Czech Yearbook of International Law, 2010, pp. 174ss. C. JANSSENS, The principle of mutual recognition in EU law, Oxford University Press, 2013. H. SLUITTER, S. FRIMAN, S. LINTON, S. VASILIEV, S. ZAPPALÁ, International criminal procedure. Principles and rules, Oxford University Press, 2013. S. KENNER, T. WARD, J. PEERS, A. HERVEY, The EU Charter of fundamental rights: A commentary, ed. Bloomsbury, 2014. C. GOMEZ, J. DIEZ, European federal criminal law, ed. Intersentia, 2015. V. MITSILEGAS, The transformation of criminal law in the Area of freedom, security and justice, in Yearbook of European Law, 2007, pp. 1ss. W. VAN BALLEGOOIJ, P. BÁRD, Mutual recognition and individual
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