amnesty international

THE INTERNATIONAL CRIMINAL COURTMaking the right choices -Part IIIEnsuring effective state cooperation

"[T]he decisions, orders and requests of the InternationalTribunal can only be enforced by others, namely nationalauthorities. Unlike domestic criminal courts, theTribunal has no enforcement agencies at its disposal:without the intermediary of national authorities, itcannot execute arrest warrants; it cannot seizeevidentiary material, it cannot compel witnesses to givetestimony, it cannot search the scenes where crimes havebeen allegedly committed. For all these purposes, it mustturn to State authorities and request them to takeaction."

Antonio Cassese, President, International CriminalTribunal for the former Yugoslavia, address to the UnitedNations General Assembly, 7 November 1995

TABLE OF CONTENTS

INTRODUCTION 1

BASIC PRINCIPLES CONCERNING STATE COOPERATION WITH THEPERMANENT INTERNATIONAL CRIMINAL COURT 2

I. OBLIGATION OF STATES PARTIES TO COOPERATE WITH THEIRCOURT 4A. Priority of the statute and rules over internallaw 5B. Obligation to cooperate with internationalcourts established by treaty 6

C. Necessity to comply, as well as cooperate, withinternational criminal courts 8

II. INTERNATIONAL ASSISTANCE TO THE COURT 9A. State cooperation and assistance required toensure that the prosecution and defence canconduct effective investigations 91. International assistance different frominter-state mutual assistance 102. Traditional grounds for refusal of mutualassistance to a state do not apply tointernational assistance to aninternational criminal court 12a. Type of offence 13b. Fair trial and fair treatment 13c. National interest 14B. Types of international assistance required 161. State cooperation and assistance notrequiring logistical help or compulsoryprocess 172. Investigation methods usually requiringlogistical support from states 223. State cooperation and assistance usuallyrequiring compulsory process 234. Other types of cooperation 30C. Provisional measures 311. General powers to take provisional measures 312. Tracing, freezing, seizing and confiscatingassets 31

III. ARREST AND DETENTION OF PERSONS 34A. Pre-indictment arrest and detention of suspects 35B. Arrest and detention of accused 351. Duty to arrest 352. Obligation of states to protect rights ofaccused during detention 36

IV. TRANSFER OF PERSONS TO THE COURT 37A. Transfer 37B. The new concept of transfer 391. Transfer to the international criminal courtis not extradition 392. Traditional exceptions to extradition arenot relevant to transfers 40a. Nationality 41b. Territorial jurisdiction 41c. Political offence 42

d. Military offence 45e. Dual criminality 45f. Speciality 46g. Non bis in idem 46h. Statutes of limitation 47i. Amnesties 47j. Possible unfairness of proceedings inthe requesting state 51k. Other exceptions 52

V. ENFORCEMENT OF ORDERS AND JUDGMENTS 52A. Enforcement of judgments and orders 52B. Ensuring compliance with judgments and orders 53

VI. STATE COOPERATION IN THE ENFORCEMENT OF SENTENCES 54

VII. COOPERATION WITH THE COURT BY STATES WHICH ARE NOTPARTY TO THE STATUTE 54

THE INTERNATIONAL CRIMINAL COURT:Making the right choices - Part IIIEnsuring effective state cooperation

". . . we cannot and must not set up a whollyineffective Court which is capable of making nomore than empty gestures in the face of appallingatrocities being committed. That would be to doa great injustice to the victims of thesecrimes."

Lionel Yee, Head of the Singapore delegation tothe Preparatory Committee on the Establishment ofan International Criminal Court, "Finding theRight Balance", 5 The International CriminalCourt Monitor (August 1997), p. 14

INTRODUCTION

This is the third position paper of a series by AmnestyInternational in support of the establishment of a just,fair and effective international criminal court. They aredesigned as easy-to-use manuals for decision-makers

addressing topics scheduled to be discussed at the foursessions in 1997 and 1998 of the United Nations (UN)Preparatory Committee on the Establishment of anInternational Criminal Court (Preparatory Committee).Each section of this paper discusses the relevantinternational law, standards and practice; identifies thestrengths and weaknesses of the International LawCommission's 1994 draft statute (ILC draft statute) andmakes recommendations for improvements (in bold type).

This position paper addresses some of the topics scheduledto be addressed at the third session in 1997 of thePreparatory Committee (1 to 12 December 1997), includingstate cooperation with the international criminal court.Discussion of some of the topics now scheduled forDecember began at the February or August 1997 sessions, sothe earlier papers in this series should be consulted forAmnesty International's positions on those topics. Forease of reference, the topics addressed in the threeposition papers are indicated below:

Complementarity, definitions of core crimes, generalprinciples of law, permissible defences andpenalties. The international criminal court: Makingthe right choices - Part I: Defining the crimes andpermissible defences and initiating a prosecution(AI Index: IOR 40/01/97) (Part I)

Organization of the court, protecting victims andwitnesses and guaranteeing the right to fair trial.The international criminal court: Making the rightchoices - Part II: Organizing the court andguaranteeing a fair trial (AI Index: IOR 40/11/97)(Part II)

State cooperation with the international criminalcourt. The international criminal court: Making theright choices - Part III: Ensuring effective statecooperation (AI Index: IOR 40/13/97) (Part III)

Although there is some inevitable overlap with topicsdiscussed in the two previous position papers, the focusin Part III is on the obligation of states to cooperatewith the permanent international criminal court and tocomply with its orders and requests.

It is anticipated that the Preparatory Committee at the

December 1997 session will consider the remaining issuesconcerning permissible defences which were not addressedat the February 1997 session; penalties, which wereoriginally scheduled for the February 1997 session, butnot discussed; and the remaining issues concerningprocedural matters which were not resolved at the August1997 session. The Preparatory Committee is also expectedto consider a proposal by members of the North AtlanticTreaty Organization (NATO) concerning the definition ofthe court's jurisdiction over serious violations ofhumanitarian law. This proposal is designed to bridge thegap between the position of the United States, on the onehand, and New Zealand and Switzerland, reflecting theposition of the International Committee of the Red Cross(ICRC), on the other hand. The Preparatory Committee isalso expected to have available an abbreviated compilationof proposals concerning state cooperation to be preparedat an intersessional meeting in Siracusa, Italy ofgovernment experts, staff of the two ad hoc tribunals andrepresentatives of non-governmental organizations, all intheir personal capacity, sponsored by the InternationalInstitute of Higher Studies in the Criminal Sciences (16to 22 November 1997).

What is at stake. The issues of state cooperation areamong the most important which the Preparatory Committeeand the diplomatic conference will have to resolve. Evenif all the other major political issues are resolvedsatisfactorily, including eliminating the Security Councilveto of prosecutions in situations being considered underChapter VII of the UN Charter, defining the core crimesbroadly, giving the court the same universal jurisdictionas each of its states parties, guaranteeing fair trialsand assuring secure financing as part of the regular UNbudget, all could be for naught if a state party is freeto disregard international court orders on behalf of theworld community on narrow grounds of national selfinterest.

Although some aspects of state cooperation with thepermanent international criminal court are complex andtechnical, the fundamental issues at stake are verysimple. Will a state party be permitted to paralyseinternational investigations and prosecutions of genocide,other crimes against humanity and serious violations ofhumanitarian law on grounds of national interest andexisting national law? Will the statute and rules ensure

that the court's inherent power as a criminal court toissue orders and requests for assistance be implementedfully and without delay by states parties and individuals?Will the court have the power to determine whether a stateparty is fulfilling its obligations under the statute? Toensure the right answers to these questions, states willhave to be creative in devising new systems ofinternational cooperation so that their court is effectivein repressing the worst crimes in the world. As explainedbelow, these solutions will necessarily differ insignificant respects from traditional state-to-statemutual assistance and extradition, but the drafters of thestatute will be able to draw upon the extensive experienceof state cooperation with the two ad hoc internationalcriminal tribunals for the former Yugoslavia and forRwanda.

Copies of Parts I, II and III are available onthe Amnesty International Italian Section's WorldWide Web page: http://www.amnesty.it and on theNGO Coalition for an International Criminal CourtWorld Wide Web page: http://www.igc.apc.org/icc

BASIC PRINCIPLES CONCERNING STATE COOPERATIONWITH THE PERMANENT INTERNATIONAL CRIMINAL COURT

States parties, including their national courtsand officials, must provide full cooperation,without delay, to the permanent internationalcriminal court at all stages of the proceedings,including the period before the relevant chamberdetermines whether it has jurisdiction.

The statute should confirm the basic principle offull cooperation without delay required fromstates parties, leaving the details ofcooperation to the rules.

States parties must bring to justice thoseresponsible for crimes within the court'sjurisdiction, extradite them to a state able andwilling to do so in a fair trial which is not asham or transfer them to the permanentinternational criminal court pursuant to courtorder.

States parties accept by adherence to the statutethat the permanent international criminal courtis an impartial body implementing proceduralguarantees and substantive law which satisfiestheir legitimate interests.

States parties must provide the permanentinternational criminal court with the samesupport and cooperation they would provide theirown courts.

States should implement fully and without delaycourt orders to arrest and transfer suspects andaccused. None of the grounds for states torefuse extradition to other states apply to courtorders to transfer suspects and accused to thepermanent international criminal court.

States should implement fully and without delaycourt orders and requests to provideinternational assistance, including thoserequiring logistical support, searches andseizures, appearance of witnesses and productionof documents. None of the traditional groundsfor states to refuse mutual assistance to otherstates apply to orders or requests forinternational assistance by the permanentinternational criminal court.

The permanent international criminal court, notnational courts or authorities, should determinewhether a state party is fulfilling itsobligations under the statute and rules tocooperate.

States parties which have failed to implementcourt orders fully and without delay are inbreach of their obligations under internationallaw and should be subject to appropriatesanctions.

All other states should be encouraged to becomeparties to the statute and to cooperate with thepermanent international criminal court.

I. OBLIGATION OF STATES PARTIES TO COOPERATE WITHTHEIR COURT

The permanent international criminal court will be createdby states to ensure the existence of an internationalinstitution able to repress the worst possible crimesimaginable. It will be designed to do so in a mannerwhich necessarily satisfies their legitimate interests,but is, above all, just, fair and effective. Theiradherence to the statute will affirm that the impartialbody is implementing substantive and procedural law fullyconsistent with their legitimate interests. Therefore,each state party must provide the international criminalcourt with the same support and cooperation they providetheir own domestic courts. Failure to do so wouldparalyze their international court.

In creating the permanent international criminal court asan effective complement to national criminal justicesystems when they are unable or unwilling to bring tojustice those responsible for core crimes, it will beessential ensure that states parties cooperate fully andpromptly with the court and comply with its orders andrequests without delay. As with the two ad hocinternational criminal tribunals, the internationalcriminal court will not have its own police force when itis established and will depend to a large extent oncooperation by states at every stage of the proceedings:

"Notwithstanding the emergence of international andregional organizations with competence in a widerange of areas, the international legal system isstill primarily a decentralized system of independentsovereign States, particularly in the field ofcriminal law. Given the absence of an internationalcriminal justice system, the cooperation of Stateswill be essential to the effective functioning of theInternational Tribunal at every stage of its work,from the initial investigation to the enforcement ofa final judgment."/1/

Although there are significant differences between thebasis of the obligation to cooperate with the two ad hocinternational criminal tribunals, the InternationalCriminal Tribunal for the former Yugoslavia (YugoslaviaTribunal) and the International Criminal Tribunal forRwanda (Rwanda Tribunal), and the basis for the obligation

of states parties to cooperate with the internationalcriminal court, both are rooted in state consent. Theobligation to cooperate with the two tribunals created bythe Security Council pursuant to its authority underChapter VII of the UN Charter, a treaty to which allmembers of the UN consented, was spelled out in theresolutions creating the two tribunals./2/ The obligationof states parties to the statute of the internationalcriminal court to cooperate with their court will also bebased on state consent on ratification or accession. Itwill be necessary to draw upon the experience of the twoad hoc international criminal tribunals with statecooperation to build on the strengths of that system ofcooperation and to learn from the problems which the twotribunals have encountered./3/

A. Priority of the statute and rules over internallaw

"Although it is a general principle ofinternational law that it is for the State todetermine how it will fulfil its international lawobligations, a State cannot impose conditions ofform on the fulfilment of these obligations byenacting national legislation which results inderogation thereof."

Prosecutor v. Blaki_, Decision on the Objection ofthe Republic of Croatia to the Issuance ofSubpoenae Duces Tecum, Case No. IT-95-14-PT (TrialChamber, 18 July 1997

If the court is to be effective, the statute shouldreinforce the inherent powers of the court to enforceinternational criminal law by expressly providing that allstates parties, as well as individuals under theirjurisdiction or control, must comply with court orders andrequests issued pursuant to the statute and rules. Thestatute should also encourage and facilitate cooperationby other states. This approach is consistent withobligations of states parties to the constituentinstruments of other international courts and judicial orquasi-judicial bodies established by treaty, andconsistent with the powers of other international criminalcourts. The statute should also expressly providethat states parties may not use their internal law

to prevent or delay compliance with court orders orrequests. As with other international treatycommitments, states parties may have to amend existinglegislation or enact new legislation to fulfil theirtreaty commitments. There is ample precedent from a widevariety of legal systems in the legislation amended orenacted by states to fulfil their obligation to cooperatewith the Yugoslavia and Rwanda Tribunals. In the case ofreferrals by the Security Council of situations whenacting pursuant to its powers under Chapter VII of the UNCharter, the Security Resolution is likely to reinforcethe obligations of states parties under the statute andrules and to spell out the obligations of non-stateparties, as it specified the obligations of UN Members inthe resolutions establishing the two ad hoc internationalcriminal tribunals.

The statute should provide that all states partiesshall comply with court orders and requests whenthe court is acting with respect to the core crimesof genocide, other crimes against humanity andserious violations of humanitarian law, whichshould be within the court's inherent (automatic)and concurrent jurisdiction./4/ It is increasinglyunlikely that the so-called treaty crimes in the Annexmentioned in Article 20 (e) of the ILC draft statute willfall within the initial jurisdiction of the court (apartfrom those, such as grave breaches of the GenevaConventions, which are to be included in one of the corecrimes), but some of them or other crimes of internationalconcern may be included at a later date under an opt-inprovision similar to that in Article 22. If so, it willbe necessary to amend the statute to distinguish betweenthe obligations of states parties which have accepted theoriginal inherent jurisdiction over core crimes and thosewhich have also accepted jurisdiction with respect to theadditional crimes. Simplicity, convenience, ease ofoperation and understanding require the samejurisdictional regime for all crimes in the court'sinitial stages.

States cannot interpose national law as an obstacle tointernational treaty commitments. The Vienna Conventionon the Law of Treaties provides that a state party to atreaty "may not invoke the provisions of its internal lawas justification for its failure to perform a treaty"./5/This is a rule of customary international law./6/

International scholars are in accord:

"Furthermore, if a state's internal law is such as toprevent it from fulfilling its internationalobligations, that failure is a matter for which itwill be held responsible in international law. It isfirmly established that a state when charged with abreach of its international obligations cannot ininternational law validly plead as a defence that itwas unable to fulfil them because its internal lawwas defective or contained rules in conflict withinternational law; this applies equally to a state'sassertion of its inability to secure the necessarychanges in its law by virtue of some legal orconstitutional requirement which in the circumstancescannot be met or severe practical or politicaldifficulties would be caused."/7/

To avoid any ambiguity, however, the statute shouldexpressly provide that states parties must enactany legislation needed or amend existing law tofulfil their treaty obligations.

B. Obligation to cooperate with international courtsestablished by treaty

The obligation of states parties to cooperate withinternational judicial and quasi-judicial organsestablished by treaty or international agreement is justas important for their effectiveness in strengthening therule of law at the international level as it is for ad hoctribunals established by the Security Council (see SectionI.C below). The statute should ensure that the obligationof both states parties and individuals to comply withcourt orders and requests is clearly and unambiguouslyspelled out./8/ The obligation of states to comply fullyand without delay with decisions of international courts,tribunals, arbitrators and quasi-judicial commissionswhere they have consented to jurisdiction is a reflectionof the basic principle pacta sunt servanda. In somecases, the obligation is spelled out in the treatyestablishing the judicial organ, but it is axiomatic thatonce states have freely consented to the jurisdiction ofa judicial body, they must carry out the decisions of thatbody when it is exercising its jurisdiction. They may notpick and choose which decisions to implement or decide thescope of the implementation:

"The State concerned is under an obligation to complywith all the consequences of the judgment: If a titleto jurisdiction is recognized or denied, the State isbound to assure that all national State organsexercise their competence within the limits of thistitle. If the judgment directs the performance of anact, the government is obliged to perform it, eitherthrough its executive branch or through any otherorgan which can contribute to this effect."/9/

As a general rule, states parties fulfil their obligationsto comply with judgments of such courts and quasi-judicialbodies (see Section V below). Nevertheless, the statuteshould require states parties and individuals to complyfully and without delay with judgments, orders andrequests./10/ Such provisions are incorporated in thestatutes of other courts established by treaty, both thosedeciding cases involving individuals and those decidinginter-state disputes. Under Article 32 (4) of the EuropeanConvention for the Protection of Human Rights andFundamental Freedoms, the states parties to that treaty"undertake to regard as binding on them any decision whichthe Committee of Ministers" of the Council of Europe takesto confirm a decision by the European Commission of HumanRights that there has been a violation of the treaty andto specify the time limit for compliance./11/ Similarly,under Article 53, the states parties which have acceptedthe jurisdiction of the European Court of Human Rights"undertake to abide by the judgment of the Court in anycase to which they are parties". States parties whichhave accepted the jurisdiction of the Inter-American Courtof Human Rights "undertake to comply with the judgment ofthe Court in any case to which they are parties"./12/Although the International Court of Justice decides inter-state disputes, the same principle applies with respectto the separate consent by parties to its statute forclasses of disputes. Once they have consented, the statesare then bound to implement the decisions and judgments ofthe International Court of Justice; they do not have theoption to negotiate the extent to which they will complyor the manner in which they will comply. States partiesto the Statute of the International Court of Justice "mayat any time declare that they recognize as compulsory ipsofacto and without special agreement in relation to anyother state accepting the same obligation, thejurisdiction of the Court in all legal issues" concerning

certain matters./13/ States parties to the statuteshould undertake to implement all judgments anddecisions of the court fully and without delay.

C. Necessity to comply, as well as cooperate, withinternational criminal courts

"A criminal court must have the ability to ensurethat its functioning is not frustrated at theinclination of obstructive individuals."

Prosecutor v. Blaski_, Decision on the Objectionof the Republic of Croatia to the Issuance ofSubpoenae Duces Tecum, Case No. IT-95-14-PT(Trial Chamber), 18 July 1997

The need of international criminal courts, whetherestablished by treaty or by Security Council resolution,to have the power to issue binding orders to states, and,in some cases, individuals, is even greater than the needof international judicial and quasi-judicial bodiesestablished by treaty to resolve disputes between statesto have such power.

The permanent international criminal court whenestablished will, necessarily, have inherent power as aninternational criminal court to issue binding orders tothe states parties which have established it./14/ It willalso have inherent power as an international criminalcourt over persons in the territory of states parties orsubject to their jurisdiction./15/ Nevertheless, theinherent power of the court to issue binding orders shouldbe reinforced, as in the Yugoslavia and Rwanda Statutesand Rules of Procedure and Evidence by express powers./16/In as much as the Appeals Chamber in the Blaski_ caseconsidered that the Yugoslavia Tribunal did not haveinherent jurisdiction to compel state officials totestify or produce documents and that the statute of thattribunal did not give it this power, it will be essentialfor states establishing the permanent internationalcriminal court to clarify that their court will be able tocompel state officials to testify and produce documents.As explained below in Section II.B.3, the court will needto have the power to do so if it is to be effective inbringing to justice superiors and state officials.

The ILC draft statute does not adequately reinforce the

inherent power of a criminal court to issue bindingorders, thus creating unnecessary ambiguity about thescope of its power. Article 51 (1) of the ILC draftstatute requires states parties to cooperate with theinternational criminal court, but the ILC commentaryindicates that this provision does not oblige statesparties to comply with court orders or requests. Thatprovision states that "[s]tates parties shall cooperatewith the Court in connection with criminal investigationsand proceedings under this Statute." Article 51 (2)states that the Registrar may transmit to any state, notjust a state party, "a request for cooperation andjudicial assistance with respect to a crime" and Article51 (3) provides that states parties "shall respond withoutundue delay to the request" in cases of genocide or inother cases where they have accepted the court'sjurisdiction with respect to the crime. Article 51 alsodoes not expressly provide that the court will be able toissue binding orders to states, their officials andprivate individuals.

The International Law Commission in its commentary onArticle 51 recognized that "[t]he effective functioning ofthe Court will depend upon the international cooperationand judicial assistance of states." Therefore, itexplained, "States parties to the Statute should cooperatewith criminal investigations conducted by the Prosecutorand respond without undue delay to any request from theCourt regarding, for example, the location of persons, thetaking of testimony, the production of evidence, theservice of documents, etc." It added that "Article 51states this general obligation in terms adapted fromarticle 29 of the Statute of the International Tribunalfor the Former Yugoslavia, it being understood that issuesof implementation will be worked out between the Court andthe requested State." However, Article 29 of theYugoslavia Statute not only requires states to cooperatewith the Yugoslavia Tribunal, it provides that "Statesshall comply without undue delay with any request forassistance or an order issued by a Trial Chamber"./17/Thus, despite the seemingly mandatory language in Article51 and the clearly mandatory wording of Article 29, theInternational Law Commission appears to have envisaged asystem based solely on cooperation by states parties wherethe cooperation in implementation of each request andorder will be negotiated with each requested state party,not automatic compliance by states parties with all orders

and requests, as required with respect to otherinternational courts.

A criminal court which must rely solely upon discretionarycooperation by states parties when exercising itsjurisdiction without ultimately being able to ordercompliance with treaty obligations will not be aneffective complement to states which are unable orunwilling to bring to justice those responsible for theworst crimes in the world. The permanent internationalcriminal court must have the same power to issue bindingdecisions and judgments as any other international court.The current wording, which fails to make this clear, risksparalysis. The statute should eliminate anyambiguity by expressly stating that the court haspower to issue binding orders to states parties,their officials and individuals in the territory orjurisdiction of a state party and that they complyfully and without delay.

II. INTERNATIONAL ASSISTANCE TO THE COURT

A. State cooperation and assistance required toensure that the prosecution and defence can conducteffective investigations

There is a wide variety of investigative activities whichthe office of the prosecutor and defence counsel (who, incontrast to some civil law jurisdictions, will be expectedto conduct some investigative work on behalf of theclient) must be able to carry out to ensure an effectivecriminal investigation. Each type of investigativeactivity will require different levels of internationalcooperation or assistance by states parties and otherstates. Many of the most important activities willsimply require that the state concerned permit the officeof the prosecutor and defence to carry out on-siteinvestigations, such as interviewing witnesses, withoutthe assistance of state authorities or their interference(see Section II.B.1 below). The second type of on-siteinvestigative work may need logistical assistance fromstate authorities, such as exhumation of graves andautopsies, or travel documents in restricted areas andpermission to take aerial photographs (see Section II.B.2below). In some cases, such investigations may needsecurity assistance from states. The first two types ofcooperation and assistance are essentially the same as

passive assistance in the context of traditional inter-state mutual assistance. They are also the most commontype of cooperation and assistance provided by states tothe Yugoslavia and Rwanda Tribunals. A third type ofinvestigative activity will require the office of theprosecutor and the defence to rely on compulsory process.The most effective system of compulsory process would bedirect enforcement by the permanent international criminalcourt of its orders served on officials and individuals.However, it is possible that the court will also rely tosome extent on national courts and authorities to usecompulsory process to produce evidence and the attendanceof witnesses (see discussion below in Section II.B.3).

The specific obligation of states and their officials tocomply with orders and requests issued by the permanentinternational criminal court is addressed above in SectionI.C and below in Section II.B.3. Since the pre-indictmentarrest of suspects should be for narrowly limitedcircumstances and for the shortest possible time, not asan investigation tool for the convenience of theprosecutor, as in some legal systems, pre-indictmentarrest is discussed below in Section III.A.

1. International assistance different from inter-state mutual assistance

The traditional exceptions developed by states based onconcerns about the impartiality and fairness of thecriminal justice systems of other states in state-to-statemutual assistance are not required in the context ofinternational assistance to a permanent internationalcriminal court created by the collective action of allstates at a diplomatic conference and designed to meetinternationally recognized standards of fairness.Similarly, exceptions based on concern about thesubstantive criminal law of other states have no place inthe context of the core crimes of greatest internationalconcern: genocide, other crimes against humanity orserious violations of humanitarian law.

Although traditional inter-state mutual assistance incriminal matters is the source of some useful precedentsand a familiar foundation for developing a system ofinternational cooperation and assistance, many of theprovisions in mutual assistance instruments are toorestrictive to serve as appropriate models for cooperation

with the permanent international criminal court. Theseinstruments give states a large number of grounds torefuse assistance based on national law and procedure andleave it to the requested state to decide whether groundsto cooperate exist. As explained below, AmnestyInternational is deeply concerned that the provisions inthe ILC draft statute concerning state cooperation andmany of the proposals for amending the draft statute arebased on the restrictive forms of cooperation betweenstates in mutual assistance instruments. Such proposals,if adopted, would seriously, perhaps completely, underminethe effectiveness of the court. State cooperation andassistance in the context of an international criminalcourt will require new approaches and solutions. In manycases, such new approaches and solutions have beendeveloped in the Yugoslavia and Rwanda Statutes, Rules andGuidelines concerning practical cooperation between statesand the tribunals. The basic principles ofcooperation should be spelled out in the statute ofthe permanent international criminal court; thedetails should be left to the rules.

International assistance. The term "internationalassistance" is used for convenience in this paper to coverall forms of assistance by national authorities to thepermanent international criminal court, apart fromsurrender or transfer of persons to the court, and todistinguish it from traditional state to statecooperation. The assistance required by the internationalcriminal court is analogous in some respects tointernational judicial assistance or international legalassistance by states to other states in civil matters andto mutual assistance or mutual legal assistance by statesto other states in criminal matters./18/ TheInternational Law Commission used the term "internationalcooperation and judicial assistance" in the title of Part7 of the ILC draft statute, but the term "internationalassistance" is preferable, not only because it is shorter,but because it makes clear that it covers the new conceptof assistance to an international criminal court.Instruments concerning mutual assistance between statesinclude the UN Model Treaty on Mutual Assistance inCriminal Matters (UN Mutual Assistance Treaty),/19/ theEuropean Convention on Mutual Assistance in CriminalMatters (European Convention on Mutual Assistance),/20/the Scheme Relating to Mutual Assistance in CriminalMatters within the Commonwealth (Commonwealth Scheme),/21/

the Economic Community of West African States Conventionon Mutual Assistance in Criminal Matters (ECOWASConvention)/22/ and the Inter-American Convention onMutual Assistance in Criminal Matters./23/ Theseinstruments are supplemented by a large number ofbilateral treaties and agreements. Nevertheless, as thepractice of state cooperation with the Yugoslavia andRwanda Tribunals demonstrates, these forms of cooperationbetween sovereign states are of a different nature fromcooperation by a state with an international court and thelatter will often require different solutions.

One fundamental difference between mutual assistance andinternational assistance is that the former is a system ofcooperation between states on a basis of reciprocity,whereas the latter is state assistance to an internationalcourt without a formal requirement of reciprocity,although the court will, no doubt, cooperate with nationalinvestigations and prosecutions as a matter of comity whensuch cooperation will not endanger its own investigationsand prosecutions. In addition, as explained below, afurther essential difference is that internationalassistance should be provided invariably by states partiesto the international criminal court as part of theirobligations under the statute, whereas mutual assistanceinstruments permit requested states a large measure ofdiscretion to decline requests for assistance. Moreover,the grounds for one state refusing to cooperate withanother state or assist it in criminal matters do notapply to international assistance to a permanentinternational criminal court established by the collectiveaction of the states parties. Although some of the mutualassistance instruments oblige states to provide the widestpossible assistance and to do so promptly,/24/ thesedifferences demonstrate that it is essential that mutualassistance instruments and practice be seen only asproviding some useful experience in developing aneffective system of international assistance, not as themodel for such assistance. Indeed, it can be said that ifthe statute were to rely solely on the mutual assistancemodel for defining the requirements of internationalassistance, as some states have suggested, the court couldbe paralysed by lengthy delays or outright refusals ofstates parties to cooperate. The court would then be analmost completely ineffective complement to nationaljudicial systems in the repression of crimes underinternational law. A far more appropriate model is the

recent, but rapidly expanding experience of internationalassistance provided by states to the two ad hocinternational criminal tribunals, although the flaws insome of the legislation enacted by states to fulfil theirresponsibilities under Security Council Resolutions 827and 955 identified in Amnesty International's Handbook forgovernment cooperation and by the Appeals Chamber in theBlaski_ case should be avoided./25/

2. Traditional grounds for refusal of mutualassistance to a state do not apply to internationalassistance to an international criminal court

None of the wide variety of grounds for states to denymutual assistance to other states are relevant tointernational assistance by states to a permanentinternational court established by treaty. Althoughstates have legitimate concerns with respect to thecriminal justice systems of some other states, it iscertain that the states drafting the statute will ensurethat these concerns are adequately addressed in thatinstrument and in the rules drafted by the court, as theyhave been in the Yugoslavia and Rwanda Statutes, Rules andGuidelines. Other state concerns, such as those relatedto national interests and security, will have to bebalanced by the court against the fundamental goal of thestatute: to establish an effective international criminalcourt able to bring to justice those responsible for theworst possible crimes under international law when statesare unable or unwilling to do so themselves.

The following brief discussion explains why the groundsfor states refusing to provide mutual assistance incriminal matters do not apply to assistance to aninternational criminal court and how the legitimateconcerns which states may have can be adequately addressedin the statute and rules of the court. In any event, evenif some of the grounds for states to refuse to cooperatewith each other in the investigation and prosecution ofdomestic crimes were appropriate grounds for refusing tocooperate with an international criminal court in theinvestigation and prosecution of crimes underinternational law, it would have to be the responsibilityof that court, not state authorities, to decide if refusalwas warranted. Some of the grounds are equallyinappropriate in the context of transfer of persons and,for the sake of convenience, are discussed at greater

length below in Section IV.B.2. The statute shouldexpressly exclude all traditional exceptions fromthe field of mutual assistance as grounds forstates to refuse cooperation with the permanentinternational criminal court. The court shoulddecide whether a state is in compliance.

a. Type of offence

Some mutual assistance instruments permit states to refusesuch assistance in criminal matters to other states wherethe criminal proceedings involve a political offence,/26/a military offence which is not also an ordinary criminaloffence/27/ or a fiscal offence./28/ As explained belowin Section IV.B.2, concerning transfer of persons to thecourt, none of these exceptions apply to the core crimesof genocide, other crimes against humanity or seriousviolations of humanitarian law.

b. Fair trial and fair treatment

Some mutual assistance instruments permit states to refusesuch assistance to other states when the courts orauthorities of the requested state determine that thecriminal proceeding in the requesting state involvedpersecution,/29/ double jeopardy (non bis in idem),/30/proceedings pending in the requested state,/31/ unfairmeasures to compel testimony,/32/ the absence of probablecause,/33/ incompatible concepts of law (such as theabsence of dual criminality - meaning the act is criminalin both the requesting and requested state), the use ofthe death penalty or prosecution after the lapse of aperiod of limitations./34/ As explained below in SectionIV.B.2, none of these grounds have any relevance to statecooperation and assistance to the permanent internationalcriminal court.

Article 41 of the ILC draft statute contains extensivefair trial guarantees which would prevent prosecutionmotivated by a desire to persecute and prohibit compellingan accused to testify against himself or herself or toconfess guilt. The prohibition of double jeopardy underinternational law does not prohibit a court in onejurisdiction from retrying a person previously tried inanother jurisdiction; indeed, one of the purposes of theinternational criminal court will be to retry persons whohave received a sham or unfair trial in a national

court./35/ However, Amnesty International has recommendedthat Article 42 of the ILC draft statute be amended toprohibit retrial by the permanent international criminalcourt of an accused who has been acquitted or convicted bythat court./36/ As explained below in Section IV.B.2.e,the concept of dual criminality has no place in thecontext of an international criminal court./37/ It isinconceivable that a court created within the framework ofthe UN would have the power to impose the deathpenalty./38/ Moreover, statutes of limitation areimpermissible for crimes of the magnitude of genocide,other crimes against humanity and serious violations ofhumanitarian law (see Section IV.B.2.h below). Statesshould not be permitted to refuse cooperation withthe permanent international court on the groundthat the proceedings might be unfair since it willbe the responsibility of the court which theycreate to protect the rights of suspects andaccused.

c. National interest

Mutual assistance instruments permit states to refuse suchassistance in criminal matters to other states when theyunilaterally determine that compliance with the otherstate's request would infringe their national sovereignty,security, public order (ordre public) or other nationalinterests./39/ The concept of national sovereignty is nolonger seen as permitting states unrestricted license, butas describing their rights and concomitant obligationswithin an international framework of law:

"There is similarly increasing acceptance that therules of international law are the foundation uponwhich the rights of state rest, and no longer merelylimitations upon states' rights which, in the absenceof a rule of law to the contrary are unlimited.Although there are extensive areas in whichinternational law accords to states a large degree offreedom of action (for example, in matters ofdomestic jurisdiction), it is important that freedomis derived from a legal right and not from anassertion of unlimited will, and is subjectultimately to regulation within the legal frameworkof the international community."/40/

Moreover, the repression of crimes of the most serious

concern to the international community is, by definition,a matter of international responsibility for all states.When they are unable or unwilling to do so themselves,then they must do all in their power to ensure that thesecrimes under international law will be effectivelyrepressed by an international criminal court.Investigation and prosecution by an international criminalcourt can only strengthen the international framework ofpeace and security essential for national sovereignty,security, public order and other national interests toexist. States should not be permitted to refusecooperation with the permanent international courton the ground of national interest since it will bethe responsibility of the court which they createto ensure that the national interest of anindividual state is carefully balanced against theinterests of the entire international community inrepressing crimes which undermine the entireframework of international law.

". . . to allow national security considerationsto prevent the International Tribunal fromobtaining documents that might prove of decisiveimportance to the conduct of trials would betantamount to undermining the very essence of theInternational Tribunal's functions."

Prosecutor v. Blaski_, Judgement on the Requestof the Republic of Croatia for Review of theDecision of Trial Chamber II of 18 July 1997,Case No. IT-95-14-AR108 bis (Appeals Chamber), 29October 1997

Addressing national security concerns. Many of thecrimes falling within the jurisdiction of the permanentinternational criminal court are likely to involvemilitary officials, in many cases commanders, and torequire investigation of sensitive matters of nationalsecurity. In some cases, states outside the territory ofthe state where the crime occurred may have informationbased on sensitive intelligence sources, or, perhaps,because they provided training to military or securityforces in the state where crimes occurred. The statuteand rules of the court created by the states themselvescan adequately address these two legitimate state concernsabout national security without sacrificing its

effectiveness in repressing crimes of the most seriousinternational concern.

The Appeals Chamber of the Yugoslavia Tribunal hasexplained why it is essential to provide such informationto the court:

". . . to grant States a blanket right to withhold,for security purposes, documents necessary for trialmight jeopardise the very function of theInternational Tribunal, and 'defeat its essentialobject and purpose'. The International Tribunal wasestablished for the prosecution of personsresponsible for war crimes, crimes against humanityand genocide; these are crimes related to armedconflict and military operations. It is, therefore,evident that military documents or other evidentiarymaterial connected with military operations may be ofcrucial importance, either for the Prosecutor or thedefence, to prove or disprove the alleged culpabilityof an indictee, particularly when commandresponsibility is involved (in this case militarydocuments may be needed to establish or disprove thechain of command, the degree of control over thetroops exercised by a military commander, the extentto which he was cognisant of the actions undertakenby his subordinates, etc.). To admit that a Stateholding such documents may unilaterally assertnational security claims and refuse to surrenderthose documents could lead to the stultification ofinternational criminal proceedings: those documentsmight prove crucial for deciding whether the accusedis innocent or guilty. The very raison d'?tre of theInternational Tribunal would then be undermined."/41/

The Yugoslavia and Rwanda Tribunals have demonstrated thatlegitimate state concerns about sensitive intelligenceinformation can be adequately addressed by permittingstates to provide such information on a confidential basisto assist the prosecution in locating admissible evidencewithout disclosing sources or intelligence operations./42/However, in all cases, the court itself must review theinformation and assess the validity of the state's claims,if strictly necessary under Article 14 (1) of theInternational Covenant on Civil and Political Rights in incamera proceedings./43/ The Appeals Chamber of theYugoslavia indicated a number of possible criteria and

practical measures which a trial chamber could use inassessing the validity of these claims, and, althoughAmnesty International does not necessarily endorse each ofthem as consistent with the right to a fair trial, theydemonstrate that practical solutions to this problem canbe found.

B. Types of international assistance required

The statute should ensure that the court, particularly theoffice of the prosecutor and the unit or units withresponsibility for victim and witness protection andsupport, have sufficient flexibility to make the necessaryarrangements for state cooperation and assistance in thelight of experience and rapidly changing technology.Guidelines for most of these arrangements should generallybe left to the rules or to internal guidelines developedby the relevant part of the court. Unduly rigidprovisions in the statute could limit the ability of thecourt to respond quickly and efficiently to developments,particularly urgent matters. For example, a requirementthat all communications and documentation go through theoffice of the registrar and through a central authority ofthe state could seriously impede the court. Most of thecooperation and assistance between the two ad hoctribunals and states has been conducted directly betweenthe branches or units in the tribunals and the stateauthorities directly concerned, not through the Registrarsor through central state authorities. Article 57 (1) and(2) of the ILC statute require all communications to be inwriting or forthwith reduced to writing and to go through"the competent national authority and the Registrar" or,when appropriate, through the International CriminalPolice Organization (Interpol). Paragraph 3 sets outdetailed requirements for the contents of a request forassistance. Article 57 should be amended to providethat the court shall determine the procedure forrequests for assistance and communications,including direct contacts with relevant officials.

1. State cooperation and assistance not requiringlogistical help or compulsory process

"For us, the ability to conduct on-siteinvestigations without the presence of localofficials is essential if cases are to beproperly investigated in the area where an

incident is alleged to have occurred. . . . . wehave been obstructed by officials on the groundon many occasions. If our investigations in thearea of conflict were required by our own statuteto be conducted under the scrutiny of localauthorities, the credibility of much of ourevidence would have been questionable, manypotential witnesses would not have come forward,and much of the documentary and other physicalevidence we have managed to collect, often undervery difficult circumstances, would never havebeen disclosed."

William Fenrick, Senior Legal Adviser,International Criminal Tribunal for the formerYugoslavia, addressing Working Group 2 of thePreparatory Committee on the Establishment of anInternational Criminal Court, 4 August 1997

One of the most important forms of state cooperation withinvestigations by the prosecutor and counsel for theaccused requires no logistical help or use of compulsoryprocess. The experience of the two ad hoc tribunalsdemonstrates that a large part of an effectiveinvestigation by an international criminal court can bedone simply through on-site interviews of witnesses andvisits to places where crimes have occurred by theprosecution or defence investigators./44/ It is essentialthat these investigators be able to move freely andunaccompanied by local authorities. They must be able tomove promptly to follow up leads and, therefore, to beable to visit the territory of a state party on simplenotice without special consent to each visit. Theincreasing number of precedents for such visits byinternational bodies, both by prosecution and defenceinvestigators for the ad hoc tribunals and under treatiesestablishing investigation bodies, shows that such accessis essential and no danger to state sovereignty.Moreover, states are increasingly providing a wide varietyof analogous types of passive mutual assistance whichdemonstrates that on-site visits by a requestingjurisdiction can further the cause of internationaljustice. Indeed, it can be said that if the prosecutionand defence cannot conduct prompt, unaccompanied andunrestricted visits to the territory of states partieswithout the necessity of obtaining separate consents for

each visit, the court will be risk being ineffective inmost cases. The ILC draft statute should be amendedto provide that states parties consent by ratifyingthe statute to on-site investigations onnotification to the state party concerned, withoutrequiring separate state consent for each visit.

The experience of the two ad hoc tribunals. Theinvestigators of the Office of the Prosecutor for theYugoslavia and Rwanda Tribunals, as well as investigatorsfor defence counsel for persons accused by thosetribunals, quickly realized that if they were to be ableto conduct effective investigations, they had to be ableto visit the territory of UN Member States on a moment'snotice to be able to interview witnesses in person whomight suddenly become available or who were in precarioussituations. Thus, the President of the YugoslaviaTribunal sent Tentative Guidelines for NationalImplementing Legislation of United Nations SecurityCouncil resolution 827 of 25 May 1993 (Yugoslavia TribunalGuidelines) to UN Members on 15 February 1995 providingthat "[w]itnesses and experts in the territory of theState will be interviewed by the Prosecutor and/or DefenceCounsel after the competent authorities have been dulynotified by the International Tribunal."/45/ When stateshave, despite the Yugoslavia Tribunal Guidelines, requiredconsent for each visit, this has often led to lengthynegotiations and delays which limit the effectiveness ofthe visits if they ultimately took place. Of course, somecountries - not just those where the crimes have occurred- have delayed giving permission to prosecution anddefence investigators for years to conduct such visits.As one expert has stated in the context of mutualassistance between states in criminal matters: "Mutualassistance will never achieve the full results of which itis capable, unless its operation is both quick and easy.Speed is imperative if crime is to be foughtsuccessfully."/46/

Prosecution and defence investigators also rapidlydiscovered that it was essential to be able to interviewmany witnesses in complete privacy without the presence oflocal authorities, whether the interview took place inRwanda, one of the countries of former Yugoslavia or incountries far removed from the crimes./47/ Many victimsand witnesses were reluctant to tell their story toinvestigators under any circumstances, such as victims of

rape, sexual abuse and forced prostitution. The specialneeds of victims of these crimes has led to thedevelopment of carefully tailored interviewing techniquesand the use of specially trained interviewers,particularly women interviewers when the victims werewomen./48/ The presence of a judge or other nationalofficial often made the victim refuse to tell the story ormade the interview ineffective. Many of the victims andwitnesses in countries remote from the atrocities areasylum seekers or persons without the necessaryimmigration papers and fearful of any authorities, who areseen as likely to send them back to the places where theysaw or suffered the most horrendous crimes. Such victimsor witnesses often refuse to tell their story before anylocal official, even with assurances that they will notface refoulement. Similarly, at least one state far fromthe former Yugoslavia and Rwanda has refused permission toprosecution investigators to interview soldiers withoutthe presence of the commanding officer. Even if theinvestigator was not seeking information from the soldierconcerning possible command responsibility of an officerfor crimes or concerning training of military or securityforces, the commanding officer's presence could limit theusefulness of the interview. The statute shouldprovide that prosecution and defence investigatorscan visit any part of the territory of a stateparty, unaccompanied, without restriction. As seenbelow, most states are parties to treaties in othersubject areas permitting investigation bodies to havealmost completely unrestricted access to all parts oftheir territories relevant to the investigation.

Precedents for on-site visits by treatyinvestigation bodies on notification rather thanseparate consent for each visit. States have agreedin other contexts to establish international treatymonitoring bodies having the power to conduct thorough on-site investigations of military facilities and weaponsfactories, as well as of all places of detention, aftersimple notice, rather than requiring separate consents foreach visit. The international monitoring bodies also havebeen granted power to meet with anyone who has relevantinformation without hindrance and to meet persons indetention in complete privacy. Such precedentsdemonstrate that states see such on-site visits byinternational investigators to investigate the mostsensitive matters, such as military installations, defence

industry plants, jails and prisons are consistent withstate sovereignty.

Under the Convention on the Prohibition of theDevelopment, Production, Stockpiling and Use of ChemicalWeapons and on their Destruction (Chemical WeaponsConvention), any state party may "request an on-sitechallenge inspection of any facility or location in theterritory or in any other place under the jurisdiction orcontrol of any other State Party" to resolve any questionconcerning possible non-compliance with the convention and"to have this inspection conducted anywhere without delayby an inspection team"./49/ The challenged state partymust permit the on-site inspection authorized by theExecutive Council elected by the states parties to theconvention./50/ The challenged state party has theobligation "to enable the inspection team to fulfil itsmandate" and "to provide access within the requested sitefor the sole purpose of establishing facts relevant to theconcern regarding possible non-compliance"./51/ Althoughthe state party may "take measures to protect sensitiveinstallations, and to prevent disclosure of confidentialinformation and data, not related to [the] Convention",the determination whether the state has complied with itsobligations to provide access during a challengedinspection is to be decided by the Executive Council,based on the report of the inspection team, not by thechallenged state./52/ As a safeguard against possibleabuse, the Executive Council may, by a three-quartersmajority vote decide against carrying out a challengeinspection on the grounds that the inspection request is"frivolous, abusive or clearly beyond the scope of thisConvention", but the deliberations "shall not delay theinspection process"./53/ As of 29 August 1997, more thanfour-fifths of the UN member states had signed, ratifiedor acceded to the convention./54/

Similarly, each state party to the European Convention forthe Prevention of Torture and Inhuman or DegradingTreatment or Punishment (European Convention for thePrevention of Torture) agrees to permit visits by theCommittee for the Prevention of Torture established underthe convention "to any place within its jurisdiction wherepersons are deprived of their liberty by a publicauthority"./55/ Such visits are carried out on notice tothe state party, without a separate requirement of consentby the state party, and the state party must permit theCommittee unlimited access to all places of detention

without restriction and interview in private personsdeprived of their liberty./56/ In exceptionalcircumstances, a state may request the Committee to makealternative arrangements, but it may not prevent avisit./57/ Almost every member of the Council of Europehas signed or ratified the convention./58/

The extensive precedents of passive mutualassistance. There is a wide variety of types of passivemutual assistance/59/ between states in criminal mattersin which the requested state permits the requesting stateto conduct investigations on its territory, involving thepresence of police or judicial officials from therequesting state. Such passive mutual assistance hasincluded permitting consuls of the requesting state totake testimony in the requested state, authorizinginvestigations by military police and arrests of therequesting state's military forces on the territory of therequested state, allowing civilian police investigationsand the establishment of offices of ministry of justiceand treasury officials on the requested state's territoryand even permitting the police forces of one state incarefully defined circumstances to cross the border intoanother state in hot pursuit of suspects. Moreover, inthe context of peace-keeping, states have permitted peace-keeping operations to arrest and prosecute personssuspected of crimes or to transfer them to internationaltribunals.

States frequently permit consuls of requesting statesto take testimony of witnesses in their territorywho volunteer to testify, including citizens of therequested state, without seeking separate consent for eachwitness and without using letters rogatory. For example,"[t]he United States permits a foreign consular officer toreceive the testimony of any person, including an Americancitizen, when requested to do so by a court in his owncountry."/60/ States have also entered into agreementspermitting military police of armed forces stationedin their territories to conduct investigations ofmilitary offences and to arrest the members ofthose forces. For example, under the North AtlanticTreaty Organization Status of Forces Agreement, NATOmember states implicitly agreed to render "at leastpassive quasi-judicial assistance, to the extent ofsuffering military police and shore patrols on thenational territory, where necessary to police the armed

forces of the visiting nation."/61/ There is a longhistory of states permitting foreign policeinvestigators to operate on their nationalterritory, even including setting up offices for suchforeign police investigators. For example, on 4 November1977, France and Germany agreed to permit police officersof both countries to conduct surveillance on each other'sterritory/62/ and in 1990 the parties to the SchengenImplementing Convention agreed to permit similar cross-border surveillance operations./63/ A number of statespermit police officers to be stationed in their countrieson mission./64/ The United States Department of theTreasury has maintained an official office and staff ofagents in Italy and in several other foreign countries who"are constantly and closely cooperating with the nationaland local police authorities of the host country" and theFederal Bureau of Investigation (FBI) "has cooperatedextensively with the police judicaire in othernations"./65/ One leading authority has concluded thatsuch passive mutual assistance does not undermine nationalsovereignty./66/ States are now beginning to permit farmore intrusive forms of passive mutual assistance,including cross-border hot pursuits of suspects fromone state to another. For example, the parties to the1990 Schengen Implementing Convention have agreed topermit their police forces to cross each other's nationalborders in certain circumstances when they are in pursuitof persons suspected of committing crimes./67/

In the context of peace-keeping, states have authorizedpeace-keeping operations to arrest and prosecutepersons suspected of crimes and to arrest andtransfer persons indicted by international criminaltribunals to those tribunals. For example, the UnitedNations Transitional Administration in Cambodia (UNTAC)was permitted under the peace agreements to issue bindingdirectives to public security agencies, to have"unrestricted access to all administrative operations andinformation", to supervise and control civil police forces"in order to ensure that . . . human rights andfundamental freedoms are fully protected", to "superviseother law enforcement and judicial processes throughoutCambodia", and to arrest, detain and prosecuteoffenders./68/ Under the Dayton peace agreement, themultinational Stabilization Force (SFOR) (formerlyImplementation Force or IFOR) has the power to arrestpersons in the territory of Bosnia and Herzegovina

indicted by the Yugoslavia Tribunal and has beenrepeatedly asked by the Government of Bosnia andHerzegovina to exercise these law enforcement powers./69/

2. Investigation methods usually requiringlogistical support from states

The prosecution and defence investigators will need to havelogistical support from states parties for certain aspectsof investigations, such as exhumations, identifying andlocating witnesses and providing witness protection. Thestatute will need to ensure that states parties providesuch investigative support.

Although some exhumations of graves containing smallnumbers of bodies can be conducted by investigatorswithout any logistical support by the host state, many ofthe cases which will come before the permanentinternational criminal court will involve the exhumationof mass graves and require assistance in providingexcavation equipment, site security, forensic assistanceand electricity for refrigeration units. Article 52 (1)(c) of the ILC draft statute authorizes the court torequest state assistance in providing security, but onlyas a provisional measure, and does not expressly addressother types of assistance: "In case of need, the Court mayrequest a State to take necessary provisional measures,including the following: . . . .(c) to prevent . . . thedestruction of evidence." In many cases, stateauthorities will have information which will enableinvestigators to identify and locate witnesses.Indeed, the Yugoslavia Tribunal Guidelines expresslyprovide that states should provide such information./70/Mutual assistance instruments require states parties tohelp identify and locate witnesses./71/ In many cases,victims and witnesses will require effectiveprotection under witness protection programs during theinvestigation, trial and afterwards, often involvingrelocation of the victims and witnesses and their familiesto another country temporarily or, in some cases,permanently./72/ In the summer of 1997, the UnitedKingdom became the first state to enter into a formalagreement with the Yugoslavia Tribunal on witnessrelocation.

The ILC draft statute contains two provisions authorizingthe court to take steps to protect victims and witnesses.

Article 43 provides that "[t]he Court shall take necessarymeasures available to protect the accused, victims andwitnesses. . . ." The ILC commentary states that thisduty applies "throughout", but it does not apply tosuspects. In addition Article 52 (1) (c) states that"[i]n case of need, the Court may request a State to takenecessary provisional measures, including the following : . (c) to prevent injury to or the intimidation of awitness. . . ." The court should have sufficientpower under the statute to be able to requirestates parties to provide such protection undercourt supervision, not merely as a provisionalmeasure, but also over the long term for as long asa victim, witness or family member is in danger.To ensure that states share the burden of suchprotection programs, the court should assignvictims and witnesses to states on an equitablebasis and the court should permit deferral of theexpenses of such programs when they are assumed byleast developed countries.

3. State cooperation and assistance usuallyrequiring compulsory process

The most effective system for providing internationalassistance where the state authorities or individuals mustbe compelled to provide evidence or take action, such asto protect investigators, evidence or witnesses, is directenforcement of orders and requests of the permanentinternational criminal court. Such a system would avoiddelay and inefficiency inherent in any system with twolayers of responsibility, one international, the othernational. As stated above, in the context of mutualassistance between states in criminal matters, speed is ofthe essence. This is equally true of internationalassistance by states to an international criminal courtwhich they themselves create. The failure to establish asystem of direct enforcement would entail serious risks tothe authority and effectiveness of the permanentinternational criminal court, and states must considerseriously the implications of rejecting a system of directenforcement. The statute should provide that courtorders are directly enforceable against anindividual within the territory or jurisdiction ofany state party when the investigation orprosecution is based on a state complaint or on theprosecutor's own motion, based on information from

any source; court orders when the investigation orprosecution is based on a Security Council referralshould be directly enforceable in all UN MemberStates.

Challenges in a national court to implementation by stateauthorities of the permanent international court's orderswould have to be limited to questions concerningcompliance with national procedure (provided suchprocedure was in accordance with international standards);challenges to the order itself or alleging a failure tocomply with a state's international obligations, includinginternational standards concerning fair trial, should beraised only in the permanent international criminal court.Any challenges in the national court would have to beheard on an expedited basis. In any event, in all cases,the permanent international criminal court must be able todecide whether a successful challenge in a state court toits orders and requests should be permitted to stand.Otherwise, procedural errors by national authorities couldundermine the speedy and efficient course of internationaljustice. Indeed, the two ad hoc international criminaltribunals have encountered lengthy delays in some nationaljurisdictions in the context of international assistance(see Section II.B.1) and transfers of accused.

Service of documents. The statute should authorizethe court to request any state to serve documentsand require states parties to comply with suchrequests for assistance fully and without delay,whether the request is made by a chamber, theregistrar or the prosecutor. Provisions concerningthe service of documents are found in the Yugoslavia andRwanda Statutes/73/ and mutual assistance instruments./74/Details concerning such requests, however, shouldbe spelled out in the rules. Article 51 (1) © of theILC draft provides that the registrar may transmit to anystate a request for cooperation and judicial assistance inthe service of documents.

Taking testimony and statements. As indicated above,in a large number of cases, prosecution and defenceinvestigators will be able to interview victims andwitnesses who tell their stories voluntarily, providedthat no third parties are present, and, will be able topersuade them to testify, provided that they arereimbursed their expenses to come to the court and, where

necessary, receive adequate protection. Nevertheless, insome cases, it will be impossible to secure the testimonyof witnesses without a court order. The statute mustensure that the court has power to compel theattendance of any witness, whether a stateofficial or a private individual, before it, at theseat of the court, the place where the trial orhearing is being held or, in exceptionalcircumstances, in some other location by means of avideo link permitting cross-examination by theprosecution and defence in person or by videolink./75/

If the permanent international criminal court is to beeffective, it must have greater power than the Yugoslaviaand Rwanda Tribunals to compel witnesses to appear beforeit. Article 18 (2) of the Yugoslavia Statute gives theProsecutor the power to question witnesses and to seek theassistance of state authorities; Article 19 (2) providesthat a judge may issue orders on the request of theProsecutor. Article 29 of the Yugoslavia Statuteprovides that "[s]tates shall comply without undue delaywith any request for assistance or order issued by a TrialChamber, including, but not limited to: . . . . (b) thetaking of testimony . . . ."/76/ The Yugoslavia andRwanda Rules expressly provide that the Prosecutor may inthe course of the investigation "summon and questionsuspects, victims and witnesses and record theirstatements" and seek the assistance of any state orinternational body to that end and the tribunal TrialChambers may "issue such orders, summonses, subpoenas,warrants and transfer orders as may be necessary" for theinvestigation or trial./77/ Article 9 (3) of theYugoslavia Tribunal Guidelines provides: "Persons in theState who are summoned by a Judge or a Trial Chamber ofthe International Tribunal to appear as witnesses orexperts, shall comply with that summons." Although ontheir face these provisions would appear to permit theYugoslavia Tribunal to issue an order to a state officialto testify and to produce documents, the Appeals Chamberin the Blaski_ judgment, in dicta which went beyond thenarrow issue of whether the Yugoslavia Tribunal had powerto issue a subpoena duces tecum ordering the Minister ofDefence to produce documents, narrowly limited the scopeof the Yugoslavia Tribunal's power to compel stateofficials to testify or produce documents. States shouldreject this approach.

The Appeals Chamber stated in dicta that Articles 18 (2)and 19 (2) conferred on the Yugoslavia Tribunal "anincidental or ancillary jurisdiction over individualsother than those whom the International Tribunal mayprosecute or try", including "individuals acting in theirprivate capacity", such as "State agents who, forinstance, witnessed a crime before they took office, orfound or were given evidentiary material of relevance forthe prosecution of the defence prior to the initiation oftheir official duties"/78/ It also includes "a governmentofficial who, while engaged on official business,witnesses a crime within the jurisdiction of the[International] Tribunal being committed by a superiorofficer" because, although the individual was undoubtedlypresent at the event in his official capacity; however,arguably he saw the event qua individual"./79/ Thus,according to the Appeals Chamber, if an officer in thecourse of a routine transfer to another combat zoneoverhears a superior office issuing orders to shellcivilians, the officer was acting in a private capacityand could be compelled to testify, but, in contrast, "theState official, when he witnessed the crime, was actuallyexercising his functions, i.e., the monitoring of theevents was part of his official functions, then he wasacting as a State organ and cannot be subpoenaed", forexample, if the official overheard the order to shellcivilians while on an official inspection concerningbehaviour of the belligerents on the battlefield"./80/Such a distinction should not be adopted in the statute orjurisprudence of the permanent international criminalcourt. It would make prosecutions of superior officers,commanders and heads of state and government virtuallyimpossible; it would also make it difficult to prosecutemost serious violations of humanitarian law as the onlywitnesses would in many cases be fellow combatants.However, the Appeals Chamber did conclude that stateofficials in an international peace-keeping force andofficials cut off from effective control of the centralauthorities could be compelled to testify and producedocuments./81/

Provisions in mutual assistance agreements between statesare generally unsatisfactory models for state cooperationwith the permanent international criminal court in thisrespect as they usually permit witnesses to refuse toappear in the court of the requesting state and to refuse

testify in the requested state on grounds of privilegesunder the law of the requested state. Multilateralinstruments concerning mutual assistance permit witnessesin the requested state who are at liberty to refuse toappear in the requesting state./82/ Many bilateral mutualassistance treaties are similarly limited in scope./83/However, at least one bilateral treaty has included aprovision requiring that a witness appear in therequesting state to testify, thus demonstrating thatrequiring that a person located in one state appear as awitness before a court in another state is consistent withstate sovereignty./84/ If the permanent internationalcriminal court is to be effective, it must be able tosummon any witness in the territory of any state party toappear before it, either at the seat of the court or insome other location where proceedings are taking place.As a leading expert on mutual assistance has noted,"[f]rom the point of view of the prosecution, there aresome cases in which progress cannot be made unless thewitness attends in the requesting State. . . ."/85/

The court should have the power to compel anywitnesses to appear in the territory of a stateother than the seat of the court before one of itsjudges or a specially appointed master to testifyby means of a video link permitting cross-examination in person or by video link by theprosecutor and counsel for the accused./86/ Thealternative of having witnesses appear before a localjudge or a consular official, even when the prosecutor anddefence counsel are permitted to examine witnesses, aspermitted under some mutual assistance agreements, is notsatisfactory since the evidence should be considered undera uniform international procedure, not under inconsistentnational procedures devised with different interests atstake from those of the international community./87/ Inall cases when witnesses testify in the territory of astate party, the witness should not be permitted to assertprivileges under the national law of the state where thewitness is testifying, but only privileges recognized inthe statute and rules of the court. Whatever the meritsmay be of mutual assistance agreements permitting awitness to decline to testify in the requested state onthe basis of a privilege the witness enjoys under the lawof the requested state,/88/ those reasons do not apply totestimony before the permanent international criminalcourt enforcing international law in accordance with

international criminal procedure. Such nationalprivileges, including those related to national security,could undermine the effectiveness of the court.

The provisions in the ILC draft statute concerning thecourt's powers to compel witnesses to appear to testifyare inadequate to guarantee that it will be an effectivecomplement to national courts. In particular, they do notmake clear that states parties must ensure that anywitness ordered to appear before the court does so. Inmost cases, states parties will have to transfer witnessesfrom one state to another state where the court is sittingin a particular case. Article 26 (2) (a) provides thatthe prosecutor may "request the presence of and questionsuspects, victims and witnesses", and Article 26 (3)provides that the presidency "may, at the request of theProsecutor, issue such subpoenas and warrants as may berequired for the purposes of an investigation"./89/ Thesearticles do not make clear that such subpoenas or warrantscan compel witnesses to appear before the court whereverit is sitting, not just in the territory of the requestedstate, as is traditional mutual assistance instrumentsbetween states. Article 51 (2) (b) provides that "[t]heRegistrar may transmit to any State a request forcooperation and judicial assistance with respect to acrime, including, but not limited to: . . . (b) the takingof testimony . . ." As indicated above, however, the ILCcommentary indicates that it was intended thatimplementation of each request be negotiated with thestate concerned. Moreover, this article does not makeclear that the state must ensure that the witness appearsbefore the court wherever it is sitting. These articlesshould be amended to make clear that the court canissue warrants compelling any witness to appearwherever the court is sitting and that statesparties will implement those warrants fully andwithout delay.

The rules should also provide for the special situation ofpersons who are being detained in national custodywho are required to appear as witnesses in thepermanent international criminal court. The YugoslaviaRules and Yugoslavia Tribunal Guidelines provide detailedguidance to the two tribunals and to states concerning theobligations to transfer and return witnesses and to ensureappropriate conditions of detention; they do not requirethe consent of the detained person./90/ In contrast,

mutual assistance instruments are flawed models becausethey require the consent of such persons before they canbe transferred./91/

The rules should ensure witness immunity duringtransit through any state on the way to the placewhere the witness is to testify. Article 11 of theYugoslavia Tribunal Guidelines provides: "The Stateguarantees the immunity of persons in transit for thepurpose of appearing before the International Tribunal".Mutual assistance instruments also require guarantees ofwitness immunity during transit./92/ It is alsoimportant for the rules to guarantee that witnessesmust retain any legal status which they had in thestate where they were located when they return fromtestifying before the court. Article 9 (4) of theYugoslavia Tribunal Guidelines provides: "Witnesses andexperts who attended a trial before the InternationalTribunal may return to the State without losing anyparticular status they might have enjoyed before they leftthe State to testify." The rules should spell outwhich expenses associated with the compulsion ofwitnesses to testify, including legal expenses andtransfers to appear before the court should beborne by the court and which should be theresponsibility of the national authorities. Severalstates, including Austria, Finland, Hungary, Spain, Swedenand the United States, have provided in their legislationconcerning cooperation with the two ad hoc internationalcriminal tribunals for the payment by the requested stateof some of the expenses of witnesses./93/ In contrast,mutual assistance instruments generally require therequesting state to bear most of the expenses./94/

Searching property and seizing evidence. Thestatute should expressly recognize the inherentpower of the court to issue warrants for search andseizure of property, including documents. Article12 of the Yugoslavia Tribunal Guidelines provides: "At therequest of the International Tribunal, the competentjudicial authority shall order the seizure of evidence,including all objects which are necessary for theinvestigation of a crime and deliver them to theInternational Tribunal".

Mutual assistance instruments concerning search andseizure are generally too restrictive to serve as models

for international assistance to the permanentinternational criminal court. For example, someinstruments permit the requested state to refuse toexecute letters rogatory for search and seizure when itscourts make their own independent determination that therewas no probable cause for the request, that there was anabsence of dual criminality or the offence was not anextraditable offence; they also require that the searchand seizure be conducted in accordance with the laws ofthe requested state./95/ Some mutual assistanceinstruments permit officials and others from therequesting state to be present when letters rogatoryrequiring searches and seizure of property are executed.Such agreements, however, provide that such presence isdiscretionary or subject to national law. They also donot expressly authorize officials from the requestingstate to participate in the search or to supervise it./96/Only one of them requires notice to the officials of therequesting state before a search./97/ Having prosecutioninvestigators who have been involved in investigating thecase present will assist local officials in the search.Therefore, the statute or rules should provide thatstates parties shall, notify the prosecutor of thesearch and, in all cases where time permits,permit investigators in charge of the internationalinvestigation to conduct or participate in thesearch.

The ILC draft statute does not contain express powers tosearch property and seize evidence or impose expressduties on the state and its authorities to conductsearches and seizures pursuant to an order or request bythe permanent international criminal court. Unless thephrase "production of evidence" in Article 51 (1) (b) isinterpreted to include search and seizure,/98/ the courtwould be forced to rely on general provisions to issuesearch and seizure orders, such as Article 51 (1) (e),which provides that the registrar "may transmit to anyState a request for cooperation and judicial assistancewith respect to a crime, including, but not limited to: . . (e) any other request which may facilitate theadministration of justice. . . ." This is weaker thanequivalent provisions in the Yugoslavia and Rwanda Rulesand some mutual assistance instruments. To avoidpossible doubts about the scope of the court'spowers, the statute should expressly authorize thecourt to issue search and seizure warrants which

are directly enforceable in the territory orjurisdiction of the state party. If the statuteprovides that such search and seizure warrants mustbe executed by the local authorities, then itshould require those authorities to implement thosewarrants fully, without delay, and permitprosecution investigators to participate in thesearch.

Production of documents. The court should have thepower to compel states parties, their authoritiesand others to produce documents. This power may beseen as incidental to the power of search and seizure ofproperty and the power to compel witnesses to appear andtestify before the court, but it will be helpful to listit separately to avoid any ambiguity./99/ These powersare discussed above. Article 51 (1) (b) states that theregistrar "may transmit to any State a request forcooperation and judicial assistance with respect to acrime, including, but not limited to: . . . (b) . . . theproduction of evidence."

4. Other types of cooperation

There are a number of other types of internationalassistance and cooperation which states should provide tothe permanent international criminal court, includinginforming the court of possible crimes and pendinginternational proceedings, making arrangements to permitthe court to sit in the state and, possibly, prosecutingfor perjury..

Informing court of possible crimes and pendingnational proceedings. The statute or rules shouldprovide that states parties inform the permanentinternational criminal court of crimes which mayfall within the court's jurisdiction and indicatewhat steps, such as opening investigations orcommencing prosecutions, the state has taken. Someof the national legislation implementing state obligationsto comply with the two ad hoc tribunals provides for suchnotice./100/ Such legislation not only ensures that thenational authorities will take the initiative in keepingthe tribunals informed of matters which might not come totheir attention, but also is an incentive to statesparties to fulfil their own responsibilities to bringpersons responsible to justice for crimes under

international law committed in their jurisdiction or,pursuant to universal jurisdiction, elsewhere.

Provision for court to sit in the state. UnderArticle 3 (3) of the ILC draft statute, "[t]he Court mayexercise its powers and functions on the territory of anyState party, and, by special agreement, on the territoryof any other State." States parties should enactlegislation to facilitate operations of the courtwhenever it conducts hearings or other activitiesoutside the host state. In drafting such legislation,states could draw upon the legislation of states whichhave provided for the Yugoslavia and Rwanda Tribunals tosit outside the host states./101/

Prosecution for perjury. It would be more effectivefor the permanent international criminal court tovindicate its own authority by prosecuting witnesses forperjury and contempt than to leave these prosecutions tostates parties. The court would have the relevantevidence, and, in many cases, control over the witnessbefore it. If the witness returned to the territory orcontrol of a state party, the statute should provide thatthe state party should return the witness to the court fortrial. Therefore, the statute not only shoulddefine the crime and specify the penalties, butalso should provide that the court, rather thanstates parties, have the power to prosecute personsfor perjury. If, however, the diplomatic conferencewere to adopt the less efficient method of prosecutionsfor perjury by states parties, as in Article 44 (2) of theILC draft statute, then the statute should require statesto enact the necessary legislation and to provideappropriate penalties.

C. Provisional measures

In urgent situations, the permanent international criminalcourt will need to be able to take many of the measuresoutlined above on a provisional basis to preserveevidence, to protect witnesses and to preserve assets forthe recovery of fines, restitution and compensation. Itwill also need to be able to make provisional arrests ofsuspects to prevent flight or intimidation of witnesses(see Section III below).

1. General powers to take provisional measures

The basic power to take provisional measures, as in theYugoslavia and Rwanda Rules,/102/ should be spelled out inthe statute and the list of measures should beillustrative, not exhaustive. The details of suchmeasures should be left to the rules. Article 52 of theILC draft statute expressly lists only three provisionalmeasures which the court may take, but it makes clear thatthe list is merely illustrative. Nevertheless, itwould help avoid ambiguity if the list ofillustrative provisional measures were somewhatlonger and expressly included the power to trace,freeze and seize assets (see following section).

2. Tracing, freezing, seizing and confiscatingassets

Among the most important provisional measures which thepermanent international criminal court will have toemploy, particularly when a suspect or accused is believedto have stolen property from victims and there is aserious risk that the property will be concealed,destroyed, lost or transferred, are the tracing, freezingand seizing of assets. Such provisional measures will beessential to ensure that judgments ordering fines,restitution and compensation to victims are enforceable.Since the issues related to tracing, freezing, seizing andconfiscating assets associated with crime pursuant to ajudgment largely overlap the issues related to tracing,freezing and seizing assets as provisional measures, theyare addressed in this section. The statute shouldensure that the court has power to take suchmeasures to protect its jurisdiction and ability toenforce judgments; the details of these powersshould be left to the rules.

If judgments of the court are to have any value for thepurpose of recovering fines or obtaining restitution andcompensation, whether awarded by the court, as AmnestyInternational and other non-governmental organizationshave urged,/103/ or by states, then the court must havepower to freeze assets of suspects and accused pendingfinal judgment. The current patchwork system of mutualassistance between states for tracing, freezing, seizingand confiscating assets associated with crime is simplyinadequate to address persons who commit crimes within thecourt's jurisdiction. The multilateral and bilateral

agreements involve only a limited number of states, theycover only a limited number of offences (usually relatedto drug trafficking) and their methods are not alwayseffective. Many of the persons who will be suspected oraccused of crimes within the court's jurisdiction willhave been in leadership positions who may have amassedlarge amounts of property as part of the deportation orforcible displacement of populations. If the diplomaticconference does not provide the permanentinternational criminal court with express powers toaward fines, restitution and compensation, itshould provide that its judgments will havepreclusive effect in the courts of states partiesconcerning the findings of fact to minimize theburden on victims or their families in seekingrestitution or compensation in civil proceedings innational courts and to expedite recovery byavoiding duplicative proceedings.

The permanent international criminal court shouldhave the power to issue orders which accomplish thesame objectives as mutual assistance orders in themoney laundering field - tracing, freezing, seizingand confiscating assets. There are a number ofdifferent types of orders. Restraint, restraining orsequestration orders are orders which freeze assets./104/There are two basic types of orders permitting the seizureof assets. Confiscation orders require a specified personto turn over the proceeds of a crime, but they do notreach property held by associates, relatives or shellcompanies./105/ Forfeiture orders permit the seizure ofproperty, regardless who holds the property, apart frominnocent third parties, whose rights must beprotected./106/ Orders freezing or seizing assets willneed to include all types of property, including propertyrelated to the crimes within the court's jurisdictionwhich the person is suspected or accused of committing andinstrumentalities of the crime (these could includeexpensive vehicles, planes, equipment and weapons). Theorders should be directly enforceable in all statesparties and in non-states parties which consent to enforcethem.

Provisional measures by the tribunals to preserveassets. There are no express provisions for provisionalmeasures under the Yugoslavia and Rwanda Rules to trace,freeze and seize assets prior to judgment, although

commentators have stated that the Yugoslavia Tribunal,which can order restitution of property or proceeds underits Rule 105, has the power to take "appropriateprovisional measures to preserve or protect the propertyin question pending a determination of the rightfulowner"./107/ Article 13 of the Yugoslavia TribunalGuidelines states: "An order by the International Tribunalrequiring the forfeiture or return of any property orproceeds of crime shall be enforced in the State inaccordance with the national Act on . . . , whereapplicable."

Strengths and weaknesses of mutual assistanceinstruments. The current system of mutual assistancebetween states in the field of money laundering/108/ fortracing, freezing, seizing and confiscating assets ofpersons suspected or accused of crime is not adequate todeal with persons suspected of genocide, other crimesagainst humanity and serious violations of humanitarianlaw because existing multilateral or bilateral agreementsinvolve only a limited number of states and a limitednumber of crimes, usually restricted to drug trafficking.Nevertheless, the strengths and weaknesses of these mutualassistance instruments provide some useful guidance indetermining the scope of the powers which the court willneed to preserve assets and the international assistancewhich states must provide.

The UN Mutual Assistance Treaty does not includeprovisions for tracing, freezing, seizing or confiscatingthe proceeds of crime or instrumentalities of crime, butthe Optional Protocol to the Model Treaty on MutualAssistance in Criminal Matters Concerning the Proceeds ofCrime partially addresses these omissions by authorizingstates to trace and freeze the proceeds of crime./109/Nevertheless, the Optional Protocol is seriously deficientas a model for international assistance to the permanentinternational criminal court. Article 1 defines proceedsof crime as "any property suspected, or found by a court,to be property directly or indirectly derived or realizedas a result of the commission of an offence or torepresent the value of property and other benefits derivedfrom the commission of an offence", but it does notinclude instrumentalities of crime (property used tocommit the crime, which could include expensive tanks andother vehicles, planes, weapons and equipment). Article 2requires the requested state to "endeavour to ascertain

whether any proceeds of the crime alleged are locatedwithin its jurisdiction", but the Optional Protocol doesnot require the state to override its banking secrecy lawsand simply notes that one matter which could be consideredin bilateral arrangements "is the need for otherprovisions dealing with issues related to bankingsecrecy"./110/ Article 3 requires the requested state to"endeavour to trace assets, investigate financialdealings, and obtain other information or evidence thatmay help to secure the recovery of proceeds of crime".Article 4 requires states to "take such measures as arepermitted by its law to prevent any dealing in, transferor disposal of, those suspected proceeds of crime, pendinga final determination in respect of those proceeds by acourt of the requesting State", but the Optional Protocoldoes not require the requested state to amend itslegislation to permit speedy and effective freezing ofassets in accordance with some agreed upon internationalstandard of effectiveness. Thus, a requested state couldfulfil its international responsibilities under theOptional Protocol if it merely set in motion outdated,cumbersome, slow and ineffective procedures. Article 5,concerning final judgments, is similarly flawed. Itprovides that "[t]he requested State, shall, to the extentpermitted by its law, give effect to or permit enforcementof a final order forfeiting or confiscating the proceedsof crime made by a court of the requesting State or takeother appropriate action to secure the proceeds followinga request by the requesting State." It does not requirestates parties to amend their legislation to ensureeffective enforcement. Although Article 6 requires thatthe parties "shall ensure that the rights of bona fidethird parties shall be respected in the application of thepresent Protocol", it is open to the unintendedinterpretation that this obligation applies to thirdparties who may have received the property from thesuspect or accused, not to victims./111/

The provisions for tracing, seizing, freezing andconfiscating assets in other international instruments aresimilarly defective as models for international assistanceto the court, although there are provisions which could beconsidered when drafting the rules. Most of theseinstruments focus on the problem of money laundering. Inpart because many of these instruments address moneylaundering in connection with drug offences, they areaimed at removing profits from the criminal, not on return

of property to the original owners or on compensating thevictim. Another serious problem in using these instrumentsas a model for the permanent international criminal courtis that under current international practice, the generalrule is that confiscated proceeds are awarded to the stateseizing the proceeds, which is free to use the funds as itsees fit. Another problem is that each of the instrumentsprovides that assistance is to be in accordance with thelaw of the requested state, not some agreed uponinternational standard, and leaves it to the requestedstate to determine whether its obligations have beenfulfilled. In some of these instruments, there are noprovisions overriding national banking secrecy laws./112/

Amendments needed in the ILC draft statute andmeasures needed in the rules. Article 47 (1) (b) ofthe ILC draft statute permits the court to award fines,but the ILC draft statute does not now authorize the courtto award restitution or compensation itself, but leavesthese matters to the states./113/ Nevertheless, itprovides in Article 58 that "States parties undertake torecognize the judgments of the Court" and the ILCcommentary to that article indicates that "a judgment ofthe Court should be capable of founding a plea of resjudicata or issue estoppel or their equivalents underlegal systems which recognized those pleas". The statuteshould provide that states parties comply fully andwithout delay to orders and requests to trace,freeze, seize and confiscate proceeds andinstrumentalities of genocide, other crimes againsthumanity and serious violations of humanitarianlaw. Article 58 should be amended to permit thecourt to award restitution and compensation.

III. ARREST AND DETENTION OF PERSONS

When the permanent international criminal court isestablished, it will have no police force and will relylargely on national authorities to arrest and detainsuspects and accused, except in special situations, suchas collapsed states where there are no central authoritiesor where international peace-keeping operations will havelaw enforcement powers. The statute must ensure thatstate authorities and other authorities, such as peace-keeping operations comply promptly and fully with courtorders and requests to arrest and detain suspects andaccused. The obligation to ensure that witnesses testify

before the court has been addressed above in SectionII.B.3.

A. Pre-indictment arrest and detention of suspects

The statute should expressly provide that statesparties shall enforce orders or requests to carryout a provisional (pre-indictment) arrest of asuspect in any case where the court determines thatthe suspect may flee, harm witnesses or destroyevidence, and to detain the suspect temporarilypending the prompt issuance of an indictment. Incarrying out the provisional arrest, theauthorities must comply with all relevantinternational standards, as well as the expressguarantees in the statute./114/ As explained in anearlier paper, the statute appears to afford only limitedprotection of the rights of a suspect with respect toquestioning by national authorities, in contrast to therights of suspect with respect to questioning by theprosecutor of the permanent international criminal courtor detention by the court./115/ As a safeguard and toensure effective investigation by the court, stateauthorities should provide timely notice to the prosecutorso that investigators from the office of the prosecutorcan be present./116/ Article 52 (1) of the draft ILCstatute provides that "[i]n case of need, the Court mayrequest a State to take necessary provisional measures,including the following: . . . (a) to provisionally arresta suspect". Article 52 should be amended to require thatthe state provisionally arrest the suspect without delayand that it guarantee the rights of the suspect during thetemporary detention. In addition, the rights of thesuspect with respect to the national authorities should bestrengthened as previously recommended by AmnestyInternational./117/ The rules should require theauthorities to provide timely notice to theprosecutor before the arrest, and permitinvestigators from the office of the prosecutor tobe present and should incorporate strongersafeguards for the rights of suspects than thoseprovided in the Yugoslavia and Rwanda Rules./118/

B. Arrest and detention of accused

1. Duty to arrest

The statute should expressly provide that statesparties shall implement warrants for the arrest ofan accused without delay. The rules should providefor the transmission of the arrest warrant and anyother necessary documents to the officialdesignated by the state to receive such documentsor, in the absence of a designation, to theofficial normally responsible for state cooperationor any other appropriate official, such as thecourt or prosecutor in the relevant jurisdiction inthe state where the accused is believed to belocated./119/ The ability to transmit the warrantdirectly to the appropriate official or individual in theplace where the accused is believed to be located hasproved effective in ensuring that warrants of thetribunals can be served without delay.

The rules should provide that when the courttransmits warrants to state officials rather thanserving them directly, the state authorities musteffect arrest warrants promptly. The rules shouldalso provide that the state authorities must givenotice to the prosecutor of a planned arrest, sothe prosecutor can be present at the time of thearrest, whenever this is feasible, or as soonthereafter as possible. The presence of the prosecutoror others from the office of the prosecutor can ensurethat the rights of the accused are respected, thatessential evidence is preserved and ensure thatarrangements begin immediately for the prompt transfer ofthe accused from national custody to the custody of theinternational criminal court./120/ Similarly, therules should provide that the state authoritiesmust give notice to the prosecutor and theregistrar that an arrest has been made/121/ or thatthey have been unable to effect the arrest./122/

2. Obligation of states to protect rights ofaccused during detention

The statute should make clear that the stateauthorities must respect the rights of the accusedfrom the moment of arrest until transfer to thecourt. For example, the statute should requirethat any state authority effecting arrests mustinform the accused of his or her rights and of thecharges./123/ The authorities must also ensure the

full range of other rights of the accused under thestatute and international standards are respectedduring detention. As explained in an earlier paper, thestatute appears to afford only limited protection of therights of accused with respect to questioning by nationalauthorities, in contrast to the rights of accused withrespect to questioning by the prosecutor of the permanentinternational criminal court or detention by thecourt./124/ The only provision in the ILC draft statuteexpressly imposing these obligations on state authoritiesconducting an arrest of an accused is Article 29 (1),which provides:

"A person arrested shall be brought promptly before ajudicial officer of the State where the arrestoccurred. The judicial officer shall determine, inaccordance with the procedures applicable in thatState, that the warrant has been duly served and thatthe rights of the accused have been respected."

The statute should expressly provide that stateparties must ensure that the rights of an accusedare fully respected from the moment of arrest untiltranfer to the custody of the permanentinternational criminal court. In addition, therights of the accused with respect to the nationalauthorities should be strengthened as previouslyrecommended by Amnesty International./125/

IV. TRANSFER OF PERSONS TO THE COURT

A. Transfer

The statute should provide for a simple and expeditioussystem for arresting and transferring an accused to thecustody of the permanent international criminal court whohas been charged with core cimes of genocide, other crimesagainst humanity or serious violations of humanitarianlaw. Considerations of simplicity and speed of procedurebuttress other reasons for inherent jurisdiction overthese core crimes. Inherent jurisdiction over all corecrimes would mean that the obligations of each state partywould be exactly the same, as the court wouldautomatically be able to exercise jurisdiction over aperson accused of a core crime, provided, of course, thatthe admissibility requirements of Article 35 weresatisfied. At a minimum, each state party would then in

all cases be obliged to bring a person in its territory orjurisdiction to justice, to extradite the person to astate party able and willing to do so or, in any casewhere the court decided to exercise its inherentjurisdiction in accordance with the statute, to transferthat person without delay to the court.

Since states have the primary duty to bring thoseresponsible to justice themselves, extradition to anotherstate will not fulfil that duty unless there are adequateassurances that the requesting state will conduct aprompt, thorough, independent and impartial criminalinvestigation and, if there is a sufficient basis for aprosecution, to prosecute in accordance with internationalstandards for a fair trial. An extradition to a non-stateparty would mean that the permanent international criminalcourt would not be able to exercise its jurisdiction overthe person effectively if the proceedings in therequesting state "were not impartial or independent orwere designed to shield the accused from internationalcriminal responsibility or the case was not diligentlyprosecuted", within the meaning of Article 42 (2) of theILC draft statute.

The ILC draft statute fails to address these issuesadequately. Article 21 (1) (a) provides for inherentjurisdiction over only genocide, but not other crimesagainst humanity or serious violations of humanitarianlaw. For the crime of genocide and those crimes overwhich states parties have agreed that the court shall havejurisdiction, Article 53 (2) (a) provides a simple andspeedy system of arrest and transfer in most, but not allcases. Onel exception to the obligation to arrest andtransfer an accused could seriously undercut theeffectiveness of the court. Article 53 (2) (a) providesthat when a state party receives a warrant for the arrestand transfer of a person accused of genocide or a crimeover which the state has accepted the court shall havejurisdiction, it "shall, subject to paragraphs 5 and 6,take immediate steps to arrest and transfer the accused tothe Court". These paragraphs could lead to lengthy delaysin the very cases the court was designed to address underArticle 42 (2). Paragraph 5 permits a state party todelay complying with a warrant for arrest and transfer "ifthe accused is in its custody or control and is beingproceeded against for a serious crime, or serving asentence imposed by a court for a crime." The state party

does not have to inform the registrar of the reasons forthe delay for up to 45 days, and then the state party mayeither decide to "agree to the temporary transfer of theaccused for the purpose of standing trial" in the court,or comply with the warrant, but only "after theprosecution has been completed or abandoned or thesentence has been served, as the case may be". Thus, astate party could delay implementing the warrant foryears, even if the proceedings "were not impartial orindependent or were designed to shield the accused frominternational criminal responsibility or the case was notdiligently prosecuted". Paragraph 6 permits a state partyto request a court to delay complying with a warrant for45 days before it makes an application to the court to setit aside, but it must "take any provisional measuresnecessary to ensure that the accused remains in itscustody or control". Article 21 (1) (a) of thestatute should provide that the permanentinternational criminal court has inherentjurisdiction over the core crimes of genocide,other crimes against humanity and seriousviolations of humanitarian law. Article 53 (2) (a)should provide that upon a receipt of a warrant forthe arrest and transfer of an accused charged withone of these crimes, the state party shall, withoutany exception, take immediate steps to arrest andtransfer the accused to the court.

The obligation in the ILC draft statute of states toarrest and transfer an accused to the court in cases ofgenocide or the other core crimes when the state concernedhas accepted the court's jurisdiction over these crimesappears to be absolute, apart from the exceptions inArticle 53 (5) and (6), but it is not clear from the ILCcommentary whether a request by the territorial state toextradite someone under the Genocide Convention or by astate party to the Convention against Torture for acts oftorture or ill-treatment amounting to crimes againsthumanity, if the requesting state were not a party to thestatute, would have priority over the court's warrant.Article 53 (3) provides that a transfer to the court willbe deemed to satisfy a state's obligation under anextradition treaty, such as the Genocide Convention orConvention against Torture, to try or extradite withrespect to another state party to the statute, but the ILCcommentary suggests that the statute cannot alter anobligation of a state under an extradition treaty to a

requesting state which is not a party to the statute.Article 53 (4) provides that a state party which acceptsthe court's jurisdiction with respect to a crime "shall,as far as possible, give priority to a request underparagraph 1 [of Article 53] over requests for extraditionfrom other States". The ILC commentary explains that thisphrase reflects "on the one hand, the inability of theStatute to affect the legal position of non-parties, and,on the other hand, the difficulties of imposing acompletely homogeneous obligations on States parties tothe Statute given the wide range of situationscovered"./126/ Article 53 should be amended toclarify that all states parties must give priorityto a warrant for the arrest and transfer of anaccused charged with genocide, other crimes againsthumanity and serious violations of humanitarian lawover a request for extradition by any other state.

The statute should also provide for the prompttransfer of a suspect who has been provisionallyarrested by state authorities pursuant to an orderof the court pending a prompt decision whether toindict. This will ensure direct supervision of thecustody of the judicial body responsible for thedeprivation of liberty. Detention under provisionalarrest could continue to be in the territory of the stateparty.

The duty to ensure the appearance of witnesses before thecourt who decline to appear voluntarily is addressed abovein Section II.B.3 concerning the types of internationalassistance which states parties must provide.Nevertheless, the statute and rules will have toinclude effective mechanisms to ensure the rightsof witnesses before, during and after theirappearance before the court, similar to thoseapplicable to suspects and accused, including theright to challenge the lawfulness of any restraintson their liberty.

B. The new concept of transfer

The new relationship between states and an internationalcriminal court which they themselves create is greatlydifferent from the traditional relationship betweensovereign states in the area of criminal matters andrequires new concepts and solutions. As explained below,

the transfer of an accused or a suspect to theinternational criminal court is not extradition betweenstates. Therefore, traditional exceptions to extradition,such as prohibitions on extradition of nationals,political, military and fiscal offence exceptions, dualcriminality, territoriality, statutes of limitations andnon bis in idem, are not relevant to transfers to aninternational criminal court. The exceptions aretraditional, but they are not part of customary law.Moreover, these exceptions are not applicable to the corecrimes of genocide, other crimes against humanity andserious violations of humanitarian law. The statuteshould exclude traditional grounds for refusal ofextradition as legitimate grounds for refusal totransfer a person to the permanent internationalcriminal court.

1. Transfer to the international criminal court isnot extradition

As the ILC commentary to Article 53 of the ILC draftstatute makes clear, the term "transfer" was used in thatarticle "to cover any case where an accused is madeavailable to the Court for the purpose of trial, in orderto avoid any confusion with the notion of extradition orother forms of surrender of persons (e.g. under status offorces agreements) between two States". The President ofthe Yugoslavia Tribunal has repeatedly reminded statesthat transfer to an international criminal court is notextradition./127/ Article 6 of the Yugoslavia TribunalGuidelines provides that the relevant national judicialauthority,

"after verifying that the requisite formal conditionsare fulfilled, shall approve the transfer of anarrested accused to the custody of the InternationalTribunal without resort to extradition proceedings.The accused shall be surrendered to the InternationalTribunal immediately thereafter."

Similarly, the ILC commentary to Article 53 explains that"[t]he term 'transfer' has been used to cover any casewhere the accused is made available to the Court for thepurpose of trial, in order to avoid any confusion with thenotion of extradition or other forms of surrender ofpersons (e.g. under status of forces agreements) betweentwo States". New challenges require new solutions. The

Council of Europe has recognized this principle in itsAgreement on Illicit Traffic by Sea implementing Article17 of the United Nations Convention against IllicitTraffic in Narcotic Drugs and Psychotropic Substances(Illicit Traffic Treaty)./128/ In Articles 14 and 15 ofthat treaty, states are obliged to surrender personssuspected of drug trafficking, not to extradite them,because the drafters recognized that "[a] sui generissystem, based on surrender of persons and seized property,was widely favoured to specifically cover the uniquesituation dealt with in the agreement [arrest of personson the high seas]"./129/

2. Traditional exceptions to extradition are notrelevant to transfers

The new context of transfers of accused to a permanentinternation criminal court designed by the collectiveaction of states to be fair and to repress crimes ofconcern to the entire international community, means thatthe traditional exceptions to extradition between states,based on concerns about the impartiality and fairness ofthe criminal justice systems or criminal codes of otherstates, are not needed. Moreover, the traditionalexceptions to extradition are simply common in variousextradition treaties and agreements, but are not part ofcustomary international law, although some national courtshave stated that some of the exceptions may amount togeneral principles of law./130/ As explained below,however, none of the exceptions are relevant to transfersto an international court for core crimes. Extraditiontreaties and agreements are usually negotiated bilaterallyby states with each other and each treaty containsdifferent arrangements and exceptions. As somecommentators have observed, in contrasting transfer tothe two ad hoc international criminal tribunals, "thegranting of extradition is traditionally considered to bewithin the discretion of a sovereign state, and asovereign state is free to negotiate whatever terms andconditions for extradition it wishes"./131/ They add thatthe many exceptions to extradition, "despite theirprevalence in bilateral extradition treaties cannot beregarded as customary norms of international law, or asrights under international law invocable by a suspectfacing extradition"./132/

a. Nationality

In contrast to most common law countries, which aregenerally willing to extradite their nationals, "[m]anycivil law countries refuse to extradite their nationalsbecause they have no confidence in the standards ofcriminal justice applied by requesting states.", but oftenjustify the refusal on the ground that they havejurisdiction over their own nationals./133/ Refusal toextradite on the ground of nationality is listed as anoptional ground in the UN Model Treaty on Extradition, butthe requested state must take appropriate action againstthe person concerned./134/ The refusal to extradite one'sown nationals solely on the ground of nationality has beencriticized as "undesirable"./135/ Nevertheless, asdemonstrated below, concerns about the possible unfairnessof the proceedings in the international criminal court aremisplaced and states can easily remedy the flaws in theILC draft statute by implementing Amnesty International'srecomendations in Part II, pp. 42-89. The statuteshould exclude the nationality of the accused as alegitmate ground for a state to refuse to cooperatewith the permanent international criminal court.

b. Territorial jurisdiction

Some instruments permit extradition only in cases where thealleged crime was committed in the territory of the staterequesting extradition./136/ The UN Model Treaty onExtradition lists as one of the optional grounds forrefusal that the offence took place in whole or in part onthe territory of the requested state, although therequested state must then take appropriate action againstthe person concerned; it also lists as an optional groundfor refusal that the offence took place outside theterritory of both the requesting and requested state./137/Such territorial exceptions which permit states to refuseextradition for offences of universal jurisdiction, suchas core crimes, has been severely criticized asinconsistent with customary law./138/ The statuteshould exclude as a legitimate ground for refusalto cooperate with the permanent internationalcriminal court any of the traditional territorialexceptions to extradition.

c. Political offence

Although many extradition treaties and instruments prohibit

the extradition of persons charged with a politicaloffence, this exception is not a matter of customarylaw./139/ Moreover, there are there is no agreeddefinition of political offences./140/ In any event, asexplained below, genocide, other crimes against humanityand serious violations of humanitarian law are eitherconsidered as nonpolitical crimes or exceptions to thepolitical offence exception.

The UN Model Treaty on Extradition requires refusal ofextradition "[i]f the offence for which extradition isrequested is regarded by the requested State as an offenceof a political nature", although it suggests that statesmay wish to include a provision excluding offences wherethe state has a treaty obligation to extradite or try thesuspect./141/ Thus, the Model Treaty recognizes that astate could still extradite persons suspected of tortureor grave breaches of the Geneva Conventions, among othercrimes under international law, although it does notaddress obligations under customary international law toextradite or try. There are two different types ofpolitical offences:

"'Pure' political offenses are traditionally definedas those directed against a political regime, and mayinclude treason, rebellion, or incitement to civilwar. 'Relative' political offences are common crimescommitted in connection with a politicalconflict."/142/

The political offence exception found in many treatiesdoes not apply, however, to the core crimes of genocide,other crimes against humanity and serious violations ofhumanitarian law. Article VII of the Convention for thePrevention and Punishment of the Crime of Genocide(Genocide Convention) expressly provides that genocide,conspiracy to commit genocide, direct and publicincitement to commit genocide, attempt to commit genocideand complicity in genocide "shall not be considered aspolitical crimes for the purpose of extradition"./143/The General Assembly has declared that the politicaloffence exception does not apply to crimes againsthumanity and war crimes./144/ Indeed, it has declaredthat a state's refusal to cooperate in the extradition ofpersons accused or convicted of crimes against humanityand war crimes is "contrary to the United Nations Charterand to generally recognized norms of international

law"./145/ The International Law Commission has providedin the draft Code of Crimes that states are obliged toextradite persons suspected of genocide, other crimesagainst humanity and serious violations of humanitarianlaw, to transfer them to an international criminal courtor to try them in their own courts./146/ The AdditionalProtocol to the European Convention on Extraditionprovides that genocide, grave breaches of the GenevaConventions and comparable violations of the laws of warare not political offences./147/ Leading commentatorsagree that the political offence exception does not applyto genocide, other crimes against humanity or seriousviolations of humanitarian law./148/

International agreements and instruments have made clearthat crimes such as torture, extrajudicial executions andforced disappearance of persons, which under certaincircumstances are crimes against humanity or seriousviolations of humanitarian law, are extraditable offencesto which the political offence exception has no relevance.The UN Convention against Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment (Convention againstTorture) expressly provides that torture is anextraditable offence./149/ The Inter-American Conventionto Prevent and Punish Torture provides that states partiesshall take the necessary steps to extradite anyone accusedof torture and provides that torture shall be deemed to bean extraditable offence./150/ The UN Principles on theEffective Prevention and Investigation of Extra-legal,Arbitrary and Summary Executions provides that statesshould try or extradite persons responsible for extra-legal, arbitrary and summary executions, which includeextrajudicial executions./151/ The UN Declaration on theProtection of All Persons from Enforced Disappearancerecognizes that the crime of forced disappearance ofpersons is an extraditable offence/152/ and Inter-AmericanConvention on the Forced Disappearance of Persons providesthat forced disappearances of persons are not politicaloffences for the purposes of extradition and areextraditable offences./153/

National legislation, such as that of France,/154/ andnational courts, including those in Argentina,/155/Australia,/156/ Ghana,/157/ Switzerland,/158/ the UnitedKingdom,/159/ and the United States,/160/ have rejectedthe application of the political offence exception to corecrimes. As one United States court explained:

". . . ridding a country of some of its populationfor such reprehensible reasons [as racial orreligious hatred], as part of some larger politicalscheme, is not a crime of a 'political character' andis thus not covered by the political offenseexception to extradition"./161/

The statute should exclude the political offenceexception as a legitimate ground for refusal tocooperate with the permanent international criminalcourt.

d. Military offence

There are two basic categories of military offences forpurposes of extradition. First, there are militaryoffences which also are crimes under ordinary criminallaw. These offences do not fall within the militaryoffence exception./162/ Since each of the core crimes ofgenocide, other crimes against humanity and seriousviolations of humanitarian law, such as those involvingmurder or torture, would constitute crimes under ordinarycriminal law, as well as under military law, they wouldnot fall within the military offence exception toextradition. Second, there are military offences whichrelate specifically to military matters, such asdesertion./163/ Such military offences have traditionallybeen defined as acts "punishable only as a violation of acivil law or regulation, if the military law or regulationdid not apply."/164/ The statute should exclude themilitary offence exception as a legitimate groundfor a state to refuse to cooperate with thepermanent international criminal court.

e. Dual criminality

Under the dual or double criminality exception toextradition, "the act charged must be criminal under thelaws of both the state of refuge and the requestingstate"./165/ In the context of extradition betweenstates, this exception may be used "to prevent extraditionwhich would violate substantive human rights" where thelaw making the act criminal in the requesting stateviolates international human rights, such as a lawrestricting the peaceful exercise of freedom ofexpression./166/ Such an exception, of course, has no

place in the international criminal court where the corecrimes are crimes of customary international law ofuniversal jurisdiction which all states should prohibitunder their own laws. Indeed, if a state has failed toprohibit such acts under its own laws or, in some cases,to make them subject to universal jurisdiction, it may bein breach of its obligations under international law./167/The statute should exclude the dual criminalityexception as a legitimate ground for refusal tocooperate with the permanent international criminalcourt.

f. Speciality

Under the rule of speciality, "the person surrendered shallbe tried and punished exclusively for offences for whichextradition had been requested and granted"./168/ Therule of speciality has merit in cases of extradition fromone state to another state; indeed, it is viewed in thiscontext by some as "an essential human rights enforcementmechanism"./169/ For example, "[w]ithout it anunscrupulous requesting state could try for treason aperson extradited for manslaughter or embezzlement"./170/Whether this fairly common extradition requirement has anyrelevance to transfer to an international criminal courtwhich it is hoped will observe the strictest possibleinternational standards of fair trial, is doubtful. Thenumber of core crimes within the court's jurisdiction arelikely to be limited and of a similar nature and gravity.Indeed, in many cases, the same acts may be violations ofmore than one core crime, but the fact that these acts areviolations of more than the crimes listed in theindictment or constitute different crimes may become knownonly after transfer. For example, evidence may becomeavailable during the investigation after a transfer thatthe killings with which the accused has been charged ascrimes against humanity may also amount to genocide. Tothe extent that an investigation discovers after anaccused has been transfered that other crimes have beencommitted, the accused should be permitted sufficient timeto prepare for the additional charges.

Article 55 (1) of the ILC draft statutue provides that"[a] person transferred to the Court under article 53[setting out the obligations concerning transfer of anaccused] shall not be subject to prosecution or punishmentfor any crime other than that for which the person was

transferred." For the reasons specified above, thisprovision is unnecessary, and it might unduly restrict theability of the prosecutor to bring charges based on newevidence discovered after the transfer. Article 41 (1)(b) protects the rights of the accused to have adequatetime to prepare a defence to additional charges. Article55 (1) of the ILC draft statute should be deleted.

g. Non bis in idem

The prohibition of double jeopardy (non bis in idem) foundin many extradition treaties has no relevance to transfersto the international criminal court. Indeed, one of theimportant functions of the court, as spelled out inArticle 42 (2) (b) will be to exercise its concurrentjurisdiction when the proceedings in the national courtwere not independent or the state has conducted a shamtrial "designed to shield the accused from internationalcriminal responsibility". In any event, as explained inan earlier paper, the principle does not prohibit aninternational criminal court from retrying someonepreviously tried in another jurisdiction under suchcircumstances./171/ Article 42 (2) should not beweakened and the statute should continue to excludethe non bis in idem exception to extradition as aground for refusal to cooperate with the permanentinternational criminal court.

h. Statutes of limitation

The UN Model Treaty on Extradition requires refusal ofextradition if the person whose extradition is sought isimmune from prosecution or punishment because a period oflimitations has elapsed./172/ Statutes of limitations,however, are prohibited for the core crimes of genocide,other crimes against humanity and serious violations ofhumanitarian law. For a discussion of the prohibitionunder international law of statutes of limitation forthese crimes, see Part I, pp. 73 to 76. In addition tothe sources cited in that document, Allied Control CouncilLaw No. 10 expressly provided that "[i]n any trial orprosecution for a crime herein referred to [crimes againstpeace, war crimes and crimes against humanity], theaccused shall not be entitled to the benefits of anystatute of limitation in respect of the period from 30January 1933 to 1 July 1945"./173/ Moreover, it hasrecently been recognized that "[t]he nonapplicablity of

such limitations to many violations of internationalhumanitarian law is recognized as an emerging customarynorm, and is enshrined in the Convention on the Non-Applicability of Statutory Limitations to War Crimes andCrimes against Humanity."/174/ The statute shouldprovide that there no statutes of limitation forthe crimes of genocide, other crimes againsthumanity and serious violations of humanitarian lawand that national statutes of limitation for suchcrimes not only shall not preclude the court fromexercising jurisdiction, but shall not beconsidered as a ground for declining to investigateor prosecute a case.

i. Amnesties

"What shall we do with them? We could, ofcourse, set them at large without a hearing. . . To free them without a trial would mock thedead and make cynics of the living."

Justice Jackson's Report to President Truman onthe Legal Basis for Trial of War Criminals, 19Temple L. Q. (1946), p. 148

The UN Model Treaty on Extradition requires refusal ofextradition if the person whose extradition is sought isimmune from prosecution or punishment because of anamnesty./175/ However, national amnesties for the worstimaginable crimes - genocide, other crimes againsthumanity and serious violations of humanitarian law - notonly have no place in a permanent international criminalcourt, but also are prohibited under internationallaw./176/ Allied Control Council Law No. 10 provided thatnational amnesties for crimes against peace, war crimesand crimes against humanity could not bar prosecutions bythe military tribunals established by the Allies./177/ TheGeneral Assembly has opposed amnesties for crimes againsthumanity and war crimes./178/ National amnesties andpardons which prevent the emergence of the truth andaccountability before the law are unacceptable and are thefunctional equivalent of "proceedings . . . designed toshield the accused from international responsibility",which is a ground for the permanent international criminalcourt to exercise its concurrent jurisdiction over corecrimes under Article 42 (2) (b).

National amnesties and pardons which prevent the emergenceof the truth and accountability for genocide areinconsistent with the duty to punish persons who havecommitted this crime. Every state party to the GenocideConvention undertakes "to prevent and to punish"genocide./179/ Article III of that convention providesthat genocide, conspiracy to commit genocide, direct andpublic incitement to commit genocide, attempt to commitgenocide and complicity in genocide "shall be punishable".Under Article V, states parties undertake to enact thenecessary legislation, including effective penalties, forthese crimes./180/ Article VI requires states parties tobring those responsible for genocide to justice themselvesor to transfer them to an international criminalcourt./181/ There are no exceptions.

National amnesties and pardons which prevent the emergenceof the truth and accountability for serious violationsof humanitarian law in international and non-international armed conflict are inconsistent with theduty to bring to justice those responsible for suchcrimes. Each state party to the Geneva Conventions of1949 undertakes "to enact any legislation necessary toprovide effective penal sanctions for persons committing,or ordering to be committed, any of the grave breaches" ofthe Conventions./182/ Each state party is also under anobligation to bring such persons to justice in its owncourts, to extradite them to another state party willingand able to do so or to transfer them to an internationalcriminal court./183/ These obligations are absolute andno state may excuse another state from fulfillingthem./184/ States parties are required to repress allbreaches of the Geneva Conventions, including those takingplace in non-international armed conflict, not just gravebreaches./185/ This is part of the fundamentalundertaking by each state party in common Article 1 of theGeneva Conventions "to respect and to ensure respect forthe present Convention in all circumstances". A nationalamnesty or pardon for breaches of the conventions whichare crimes under international law would violate thisundertaking./186/

The duty to prosecute or extradite persons responsible forcrimes against humanity/187/ and grave violations ofhuman rights,/188/ such as extrajudicial executions,/189/forced disappearance of persons,/190/ torture/191/ and

violence against women/192/ means that national amnestiesand pardons which prevent the emergence of the truth andaccountability for such violations are inconsistent withthe duty to bring to justice those responsible for suchviolations and with the rights of victims to justice./193/Indeed, the Human Rights Committee has found that suchamnesties violate the International Covenant on Civil andPolitical Rights/194/ and the Inter-American Court ofHuman Rights/195/ and the Inter-American Commission onHuman Rights/196/ have found that they violate theAmerican Convention on Human Rights.

The statute should provide that national amnestiesand pardons for the crimes of genocide, othercrimes against humanity and serious violations ofhumanitarian law which prevent the emergence of thetruth and accountability before the law not onlyshall not preclude the court from exercisingjurisdiction, but also shall not be considered as aground for declining to investigate or prosecute acase.

j. Possible unfairness of proceedings in therequesting state

The UN Model Treaty on Extradition identifies a wide rangeof mandatory and optional exceptions to extraditionrelated to concerns about the possible unfairness ofproceedings in the requesting state, including fears oftorture or ill-treatment,/197/ proceedings falling shortof those required by Article 14 of the ICCPR,/198/ trialsby special or ad hoc tribunals,/199/ trials inabsentia/200/ or persecution,/201/ or other human rightsconcerns, including the use of the death penalty./202/These concerns are misplaced when it comes to a permanentinternational criminal court designed by statescollectively to be a model of fairness and embodying thestrictest possible international standards for a fairtrial. To the extent that the current ILC draftstatute falls short of these standards, the statuteshould be amended to incorporate AmnestyInternational's recommendations in Part II, pp. 42-89.

k. Other exceptions

Some instruments prohibit extradition for humanitarian

reasons./203/ Even assuming that such considerationsshould be taken into account in deciding whether toinvestigate and prosecute crimes such as genocide, othercrimes against humanity and serious violations ofhumanitarian law, the decision to take them into accountmust be a decision for the international criminal court,not the state party, to make. The statute or the rulesshould provide that the international criminalcourt should determine in all cases whether anaccused is comptent to stand trial. Some extraditiontreaties prohibit extradition for certain tax offences.

V. ENFORCEMENT OF ORDERS AND JUDGMENTS

"Once States accept the jurisdiction of a courtand agree to appear before it for the settlementof their disputes, they as a matter of courseaccept its judgment, even if it is adverse totheir interests. The history of internationaladjudication largely confirms this view."

Anand, Studies in International Adjudication(1964), p. 250

A. Enforcement of judgments and orders

The statute should expressly provide that states partiesshall enforce judgments and orders of the permanentinternational criminal court within its jurisdiction. Itshould also provide that findings of fact in judgments andorders have preclusive effect in proceedings in the courtsof states parties. There should be no requirement ofrecognition procedure in national courts, other than a proforma one, as such a recognition procedure could permit anational court to refuse to enforce the judgment or order.The need for effective measures to trace, freeze, seizeand confiscate proceeds and instrumentalities of crimehave been discussed above in Section II.C.2 concerningprovisional measures.

Article 58 of the ILC draft statute, which provides that"State parties undertake to recognize the judgments of theCourt", does not satisfy these requirements. It suggeststhat a recognition procedure in national courts might berequired and it applies only to judgments, not to ordersor requests. As stated above in Section I. C, states

parties must enforce orders and requests. Article 58 alsodoes not expressly provide that the findings of fact inthe judgment or other decision are binding in nationalcourts, as in some mutual assistance instruments./204/The ILC commentary to this article demonstrates that itwas intended that "a judgment of the Court should becapable of founding a plea of res judicata or issueestoppel or their equivalents under legal systems whichrecognize those pleas", but the commentary notes thatlegislation may be necessary to give effect to thisobligation. However, Article 58 does not expressly imposesuch obligations on states parties. Article 58 shouldbe amended to provide expressly that states partiesshall enforce judgments and orders of the courtfully and without delay, that they shall be boundby the findings of fact in judgments and decisionsof the court and that they shall enact anynecessary legislation to fulfil their obligationsunder the statute.

B. Ensuring compliance with judgments and orders

Most states parties are likely to comply fully and withoutdelay in the majority of cases and many non-states partiesmay be willing to cooperate. As a general rule, statescomply with judgments of international courts and witharbitral decisions concerning disputes between statesparties,/205/ although there has been some erosion of thatprinciple in recent decades, and the record of compliancewith preliminary orders is not as consistent was withfinal judgments. Nevertheless, as experience has shownwith respect to the two ad hoc tribunals, sometimes thereare lengthy delays in compliance or even outright refusalsto cooperate. There should be appropriate tools availableto the court to ensure full compliance without delay withits judgments and orders by states, their officials andprivate individuals.

Despite initial problems in securing compliance witharrest warrants, which led to significant delays, both adhoc tribunals have achieved some recent successes whichdemonstrate that political pressure can be effective inpersuading recalcitrant states to cooperate with aninternational criminal court. For example, Croatia hasfacilitated the surrender of more than a dozen accused tothe Yugoslavia Tribunal and one quarter of those publiclyindicted are now in detention. It is expected that many

others will surrender in the near future. The only twoentities to refuse to comply with the Yugoslavia Tribunalare increasingly isolated and under pressure to comply asthe price of rejoining the international community. Otherstates, which had taken a long time to comply withwarrants issued by the Rwanda Tribunal, have now done soand more than half of those publicly indicted are now indetention. These are encouraging signs that statesparties to a statute establishing an internationalcriminal court as a general rule will fully comply.

Nevertheless, imaginative solutions may have to be devisedto ensure that any state which fails fully and promptlyto comply with judgments and orders of the court doso./206/ In many cases a simple finding that the stateand its officials have failed to comply with a court ordermay lead to sufficient pressure from other states tocomply. Other steps could be consided. For example, nostate party which the court determines is failing tocomply fully with its judgments or orders should bepermitted to participate in meetings of states parties todetermine the budget request or nominate or elect judgesor the prosecutor. In any case of a refusal to enforce ajudgment or order involving a referral by the SecurityCouncil under Chapter VII of the UN Charter, the SecurityCouncil resolution will no doubt provide, as inResolutions 827 and 955 establishing the Yugoslavia andRwanda Tribunals, that all states shall cooperate fullywith the court and take any measures necessary under theirdomestic law to implement the resolution and statute,including the obligation of states to comply with requestsfor assistance or court orders. If the Security Counciltakes this approach in the referral resolution, all stateswould be obliged to comply with court orders or requestsconcerning any cases arising from the referral./207/ Itwould then be up to the Security Council to determine whatmeasures pursuant to its powers under Chapter VII of theUN Charter would be appropriate in any case of non-compliance with a court order.

Although the Appeals Chamber in Blaski_ decided that ithad no power under Article 29 of the Statute of theYugoslavia Tribunal to issue subpoenas to state officialsto testify or to produce documents, nothing preventsstates from collectively drafting a statute with a moreeffective procedure. Indeed, unless the court has thepower to compel subordinates in a chain of command it may

well be impossible to prosecute superiors forresponsibility. In many cases, it will be difficult totestify without the eyewitness testimony of fellowsoldiers or officers.

VI. STATE COOPERATION IN THE ENFORCEMENT OFSENTENCES

Amnesty International has explained why Article 59 of thestatute of the permanent international criminal court mustensure that internationally recognized standards apply tothe imprisonment of persons convicted by the court and whythe court or a body designated by it should supervise suchimprisonment in Part II, p. 91. All states parties shouldshare the minimal burden of enforcing sentences either byproviding prison facilities or contributing to a commonfund which would assist states which do provide suchfacilities. Some such arrangement should be devised inthe statute or the rules to avoid situation where hoststate or only a small number of states accept personsconvicted by the court or are designated to providefacilities because their facilities meet internationalstandards or because they are close to where the familiesof convicted persons are located, which is likely to be afactor in designating facilities. States parties willneed to ensure that their prison facilities satisfy strictinternational standards. The statute or the rules shouldfacilitate assistance to states parties to meet thesestandards. In the same paper, at page 92, AmnestyInternational explained why Article 60 of the ILC draftstatute should be amended to guarantee that decisions topardon, parole and commute sentences must be aninternational, not a national, responsibility./208/

VII. COOPERATION WITH THE COURT BY STATES WHICH ARENOT PARTY TO THE STATUTE

The statute and rules should facilitate cooperation bystates not party to the statute pending ratification bythose states of the statute. The ILC commentary toArticle 56 states that that article "recognized that allStates as members of the international community have aninterest in the prosecution, punishment and deterrence ofthe crimes covered by the Statute", and, therefore, "eventhose States which are not parties to the Statute areencouraged to cooperate with and to provide assistance tothe Court". Article 56 permits the court and states a

great deal of flexibility in providing such cooperation:"States not parties to this Statute may assist in relationto the matters referred to in this Part on the basis ofcomity, a unilateral declaration, an ad hoc arrangement orother agreement with the Court". Article 56 should beretained.

ENDNOTES/1/ Virgina Morris & Michael P. Scharf, An Insider'sGuide to the International Criminal Tribunal for theFormer Yugoslavia (Irvington-on-Hudson, New York:Transnational Publishers, Inc. 1995), p. 311./2/ S.C. Res. 827, 25 May 1993 (establishing theYugoslavia Tribunal); S.C. Res. 955, 8 Nov. 1994(establishing the Rwanda Tribunal)./3/ For an analysis of the strengths and weaknessesof such cooperation legislation, see AmnestyInternational, International criminal tribunals: Handbookfor government cooperation (AI Index: IOR 40/07/96), andits three supplements containing the text of suchlegislation (IOR 40/08/96, IOR 40/09/96 and IOR 40/10/96)./4/ Amnesty International takes no position onwhether the crime of aggression or waging a war ofaggression should fall within the jurisdiction of thecourt, but if it does fall within its initialjurisdiction, convenience and simplicity dictate that itshould fall within the inherent jurisdiction of the courtand that the obligations of all states parties should bethe same./5/ Vienna Convention on the Law of Treaties, UNDoc. A/CONF. 39/27 (1969), done at Vienna 23 May 1969,entered into force 27 January 1980, Art. 27. The ViennaConvention in large part reflects customary law, LouisHenkin, Richard C. Pugh, Oscar Schacter & Hans Smit,International Law: Cases and Materials (St. Paul,Minnesota 1980), p. 580, and as the authorities citedbelow indicate, Article 27 reflects a rule of customarylaw./6/ Prosecutor v. Blaski_, Judgement on the Requestof Croatia for Review of the Decision of Trial Chamber IIof 18 July 1997, Case No. IT-95-14-AR-108 bis (AppealsChamber), 29 October 1997, para. 54 (Blaski_ AppealsChamber judgment); Treatment of Polish Nationals inDanzig, Advisory Opinion No. 44, 4 February 1932, 1932P.C.I.J. (Ser. A/B), p. 24 ("a State cannot adduce asagainst another State its own Constitution with a view to

evading obligations incumbent upon it under internationallaw or treaties in force"); Greek and BulgarianCommunities Case, 1930 P.C.I.J. (ser. B), No. 17, p. 32("it is a generally accepted principle of internationallaw that in the relations between powers who arecontracting parties to a treaty, the provisions ofmunicipal law cannot prevail over those of the treaty");Norwegian Claims Case, U.N. Rep., Vol. I, p. 307 (Perm.Ct. Arb. 1932); Georges Pinson Case, U.N. Rep., Vol. V.,pp. 327, 393 (Perm. Ct. Arb. 1928); Affaire d l'Alabama,Lapradelle-Politis, Vol. II, pp. 713, 891 (1872). Seealso Applicability of the Obligation to Arbitrate underSection 21 of the United Nations Headquarters Agreement of26 June 1947, ICJ Rep. (1988), Advisory Opinion, pp. 12,34 (citing "the fundamental principle of international lawthat international law prevails over domestic law")./7/ Sir Robert Jennings & Sir Arthur Watts,Oppenheim's International Law (London: Longman 9th ed.1996), Vol. I, pp. 84-85 (footnotes omitted); D.P.O'Connell, International Law (London: Stevens & Sons 2d1970), Vol. I, p. 47./8/ "Treaties instituting judicial organs usuallydefine the effects of judgments of that organ." HermannMosler, "Judgments of International Courts and Tribunals"in 1 Encyclopedia of Public International Law (Amsterdam:North-Holland Publishing Company 1981), pp. 111, 115./9/ Mosler, supra, n. 8, p. 116./10/ Treaties instituting judicial organs not onlyimpose obligations upon states parties with respect to aparticular case, as in Article 59 of the Statute of theInternational Court of Justice, but they may also

"provide for a stronger effect of judgments, andattribute to them a direct effect within theirnational domain . . . . Such an effect has only beenaccorded to judgments of international courts whereindividuals or other legal persons of municipal laware admitted as parties."

Mosler, supra, n. 8, p. 115. The parties before thepermanent international criminal court would, of course,involve individuals, as well as states which were makingjurisdictional objections. Such treaty bodies whosedecisions have a direct effect on individuals date backmore than a century to the Central Commission for theRhine, established pursuant to Article 43 of theConvention of Mannheim of 17 October 1868. Id.

/11/ Signed 4 November 1950, entered into force 3September 1953, 213 UNTS 222./12/ American Convention on Human Rights, Art. 68(1). In contrast, the Inter-American Commission on HumanRights has the power to make recommendations "and shallprescribe a period within which the state is to take themeasures that are incumbent upon it to remedy thesituation examined". Id., Art. 51 (2)./13/ Statute of the International Court of Justice,Art. 36 (2). See also Article 59 (indicating thatdecisions of the International Court of Justice have"binding force")./14/ Blaski_ Appeals Chamber judgment, para. 33./15/ See id., para. 48 (inherent power overindividuals acting in their private capacity)./16/ Article 19 (2) of the Yugoslavia Statuteprovides that a judge of the Trial Chamber "may, at therequest of the Prosecutor, issue such orders and warrantsfor the arrest, detention , surrender or transfer ofpersons, and any other orders as may be required for theconduct of the trial". Article 18 (2) of the RwandaStatute is identical. Rule 54 of the Yugoslavia Rulesprovides that a Judge or Trial Chamber may issuesubpoenas. Rule 54 of the Rwanda Rules is identical./17/ Yugoslavia Statute, Art. 29 (2). Article 28(2) of the Rwanda Statute is virtually identical./18/ A leading authority on traditional state-to-state cooperation explains: "In the context of civilproceedings, international judicial assistance isprimarily concerned with the service of documents,'process' of one sort or another but also extrajudicialdocuments of significance, and the taking of evidence;post-trial assistance, in the form of the enforcement ofjudgments and orders, . . . ." David McClean,International Judicial Assistance (Oxford: Clarendon Press1992), p. 2. With respect to state-to-state cooperationin criminal matters, "the term 'international judicialassistance' tends to be replaced in this new context by'mutual assistance in criminal matters' or simply 'mutuallegal assistance'. The concepts are, however, verysimilar and address many of the same problems." Id., p. 4.Terminology has not always been consistent in the field ofinter-state cooperation in criminal matters, however.Earlier authorities sometimes used the terms,"international judicial assistance in criminal matters" or"international judicial cooperation in criminal matters".See, for example, Gerhard O.W. Mueller, "International

Judicial Assistance in Criminal Matters", 7 Villa. L. Rev.(1961-1962), p. 193./19/ Adopted by Eighth UN Congress on the Preventionof Crime and the Treatment of Offenders, Havana, Cuba, 27Aug. - 7 Sept. 1990, UN Doc. A/Conf. 144/28/Rev.1, I.A.11,GA Res. 45/117 (1990), 14 Dec. 1990, 45 UN GAOR Sup. (No.49A) 215, UN Doc. A/RES/45/117. This model treaty is oneof a series of "widely accepted models" adopted by the UNto which states could refer "as a type of internationalform book" in drafting their own bilateral treaties.Roger S. Clark, The United Nations Crime Prevention andCriminal Justice Program: Formulation of Standards andEfforts at their Implementation (Philadelphia: Universityof Pennsylvania Press 1994), p. 204. The UN MutualAssistance Treaty is drafted as a bilateral treaty, but isreadily adaptable for multilateral use. It was used asthe basis for drafting the multilateral ECOWAS Convention./20/ Opened for signature 20 April 1959, E.T.S. 30./21/ Adopted Commonwealth Law Ministers Meeting,July 1986, Harare, as amended by Law Ministers in April1990, reprinted in David McClean., International JudicialAssistance, supra, n. 18, p. 331. The Commonwealth Schemeis not a treaty, "does not create binding internationalobligations" and "represents more an agreed set ofrecommendations for legislative implementation by eachgovernment". McClean, International Judicial Assistance,supra, p. 151./22/ Adopted 1992, reprinted in W.C. Gilmore, ed.,Mutual Assistance in Criminal and Business RegulatoryMatters (Cambridge: Grotius Publications Limited 1995), p.202./23/ Adopted by Organization of American StatesGeneral Assembly, 23 May 1992./24/ European Convention on Mutual Assistance, Art.1 (1) ("The Contracting Parties undertake to afford eachother, in accordance with the provisions of thisConvention, the widest measure of mutual assistance . . ."); ECOWAS Convention, Preamble, Art. 2 (1) ("MemberStates undertake to afford to each other, in accordancewith the provisions of this Convention, the widest measureof mutual assistance in proceedings or investigations. . ."), Art. 6 (1) ("Requests for assistance shall be carriedout promptly . . . .")./25/ Handbook for government cooperation, supra, n.3, pp. 48-61; Blaski_ Appeals Chamber judgment, paras 54-56./26/ UN Mutual Assistance Treaty, Art. 4 (1) (b)

("Assistance may be refused if: . . . The offence isregarded by the requested State as being of a politicalnature."); European Convention on Mutual Assistance, Art.2 (a) ("Assistance may be refused: (a) if the requestconcerns an offence which the requested Party considers apolitical offence"); Commonwealth Scheme, Art. 7 (1) (b)("an offence or proceedings of a political character");ECOWAS Convention, Art. 4 (1) (b) ("the offence isregarded by the requested Member State as being of apolitical nature"). However, Article 7 (4) of theCommonwealth Scheme excludes any political offence fromthis exception to the obligation to provide assistance "ifit is an offence within the scope of any internationalconvention to which both the requesting and the requestedcountries are parties and which imposes on the partiesthereto an obligation either to extradite or prosecute aperson accused of the commission of the offence". Thiswould cover some of the core crimes./27/ UN Mutual Assistance Treaty, Art. 4 (1) (f)("Assistance may be refused if: . . . The act is anoffence under military law, which is not also an offenceunder ordinary criminal law"); European Convention onMutual Assistance, Art. 1 (2) ("This Convention does notapply to arrests, the enforcement of verdicts or offencesunder military law which are not offences under ordinarycriminal law."); Commonwealth Scheme, Art. 7 (1) (c)("conduct which in the requesting country is an offenceonly under military law or a law relating to militaryobligations"); ECOWAS Convention, Art. 4 (1) (f)("offences related to military law which do not constituteoffences under ordinary criminal law") ./28/ UN Mutual Assistance Treaty, Art. 1, n. 34(states may wish to include fiscal offences as grounds forrefusal); European Convention on Mutual Assistance, Art. 2(a) ("Assistance may be refused: . . . if the requestconcerns . . . a fiscal offence.")./29/ UN Mutual Assistance Treaty, Art. 4 (1) ©("Assistance may be refused if: . . . © There aresubstantial grounds for believing that the request forassistance has been made for the purpose of prosecuting aperson on account of that person's race, sex, religion,nationality, ethnic origin or political opinions or inthat that person's position may be prejudiced for any ofthose reasons"); Commonwealth Scheme, Art. 7 (2) (b) (fearof prosecution "on account of his race, religion,nationality or political opinions"); ECOWAS Convention,Art. 4 (1) (c) (prosecution on grounds of "race, sex,

religion, nationality, ethnic origin or politicalopinions")./30/ UN Mutual Assistance Treaty, Art. 4 (1) (d)("Assistance may be refused if: . . . (d) The requestrelates to an offence that is subject to investigation orprosecution in the requested State or the prosecution ofwhich in the requesting State would be incompatible withthe requested State's law on double jeopardy (ne bis inidem)"); Commonwealth Scheme, Art. 7 (1) (d) ("conduct inrelation to which the person accused or suspected ofhaving committed an offence has been acquitted orconvicted by a court in the requested country"); ECOWASConvention, Art. 4 (1) (d) ("an offence that is subject toinvestigation or prosecution in the requested Member Stateor the prosecution of which in the requesting Member Statewould be incompatible with the requested State's law ondouble jeopardy")./31/ ECOWAS Convention, Art. 4 (3) ("The requestedstate may postpone the execution of the request if itsimmediate execution would interfere with an ongoinginvestigation or prosecution in the territory of arequested Member State."), Art. 4 (4) (execution could besubject to conditions if the requesting state accepts).Similar grounds for delay have been included in recentbilateral treaties. "Mutual Legal Assistance Treaties",U.S. Digest, Ch. 6, ? 6, 86 Am. J. Int'l L. (1992), pp.548, 552./32/ UN Mutual Assistance Treaty, Art. 4 (1) (e)("Assistance may be refused if: . . . (e) The assistancerequested requires the requested State to carry outcompulsory measures that would be inconsistent with itslaw and practice had the offence been the subject ofinvestigation or prosecution under its own jurisdiction");Commonwealth Scheme, Art. 8 (1) (authorities of requestedstate shall use only such measures of compulsion as areavailable under the law of that country in respect ofcriminal matters arising in that country"); ECOWASConvention, Art. 4 (1) (e) (requested state not required"to carry out compulsory measures that would be contraryto its laws and practice had the offence been the subjectof investigation or prosecution under its ownjurisdiction")./33/ Recent bilateral treaties permit the requestedstate to refuse to cooperate when its courts orauthorities determine that there was no probable cause forthe request. See "Mutual Legal Assistance Treaties", U.S.Digest, Ch. 6, ? 6, 86 Am. J. Int'l L. (1992), pp. 548,

552./34/ UN Mutual Assistance Treaty, Art. 4 (1), n. 34(suggesting some states may wish to include thesegrounds). Commonwealth Scheme, Art. 7 (1) (a) (requestedcountry determines "conduct would not constitute anoffence under the law of that country"); ECOWASConvention, Art. 25 (compliance with request only "if theact on which the request is based would be an offence ifcommitted in the territory of the requested MemberState")./35/ ILC draft statute, Art. 42 (2) (b). See alsoPart I, pp. 63-64./36/ Id., p. 63./37/ Even in the context of mutual assistance,however, there is a marked shift away from permittingstates to refuse to cooperate with each other on theground of the absence of dual criminality. See, forexample, the recent practice of Argentina, Spain, UnitedStates and Uruguay. "Mutual Legal Assistance Treaties",U.S. Digest, Ch. 6, ? 6, 86 Am. J. Int'l L. (1992), pp.548, 552./38/ More than a quarter century ago, the GeneralAssembly declared that "in order fully to guarantee theright to life, provided for in Article 3 of the UniversalDeclaration of Human Rights, the main objective to bepursued is that of progressively restricting the number ofoffences for which capital punishment may be imposed, witha view to the desirability of abolishing this punishmentin all countries". GA Res. 2857 (XXVI), 20. Dec. 1971./39/ UN Mutual Assistance Treaty, Art. 4 (1) (a)("Assistance may be refused if: (a) The requested State isof the opinion that the request, if granted, wouldprejudice its sovereignty, security, public order (ordrepublic) or other essential public interests"); EuropeanConvention on Mutual Assistance, Art. 2 (b) ("Assistancemay be refused: . . . (b) if the requested Party considersthat execution of the request is likely to prejudice thesovereignty, security, ordre public or other essentialinterests of its country"); Commonwealth Scheme, Art. 7(2) (a) ("contrary to the Constitution of that country, orwould prejudice the security, international relations orother essential public interests of that country"); ECOWASConvention, Art. 4 (1) (a) ("would prejudice itssovereignty, security and public order")./40/ Jennings & Watts, 1 Oppenheim's InternationalLaw, supra, n. 7, p. 12 (footnote omitted)./41/ Blaski_ Appeals Chamber judgment, para. 65.

/42/ Yugoslavia Rules, Rules 66 (c) and 77 (B);Rwanda Rules, Rules 66 (c) and 77 (B)./43/ Blaski_ Appeals Chamber judgment, para. 68./44/ As explained in this section, the suggestion indicta by the Appeals Chamber that on-site investigations,unless authorized by national legislation or specialagreements or in the states or entities of the formerYugoslavia, can only be carried out by the YugoslaviaTribunal through national authorities (para. 55) would notbe an effective model for the permanent internationalcriminal court to adopt./45/ Yugoslavia Tribunal Guidelines, Guideline 9(2)./46/ Dussaix, "Some Problems Arising from thePractical Application, from the Judicial Point of View, ofthe European Convention on Mutual Assistance in CriminalMatters", in European Committee on Crime Problems,Problems Arising from the Practical Application of theEuropean Convention on Mutual Assistance in CriminalMatters (1971), pp. 37, 39./47/ The Appeals Chamber in the Blaski_ judgmentnoted that in states on the territory of which crimes havebeen committed where state authorities might be implicatedin the crimes

"to go through the official channels foridentifying, summoning and interviewing witnesses, orto conduct on-site investigations, might jeopardiseinvestigations by the Prosecutor or defence counsel.In particular, the presence of State officials at theinterview of a witness might discourage the witnessfrom speaking the truth, and might also imperil notjust his own life or personal integrity but possiblyalso his relatives. It follows that it would becontrary to the very purpose and function of theInternational Tribunal to have State officialspresent on such occasions."

Blaski_ Appeals Chamber judgment, para. 53. As explainedbelow, however, related concerns about the presence ofstate authorities during investigations may exist in otherstates./48/ Part II, pp. 10, n. 21; 38-39./49/ Chemical Weapons Convention, reprinted inUnited Nations Centre for Disarmament Affairs,Disarmament: The Chemical Weapons Convention withSelective Index, UN Sales No. E.95IX.2 (1994), Art. IX

(8)./50/ Id., Art. IX (10)./51/ Id., Art. IX (11)./52/ Id., Art. IX (21) and (22)./53/ Id. Art. IX (16) and (17)./54/ As of 29 August 1997, 98 states had ratified oracceded to the convention and 60 other states had signedthe convention, but not yet ratified it./55/ European Convention for the Prevention ofTorture, Doc. No. H (87) 4 (1987), entered into force 1Feb. 1989, Art. 2. "Visits may take place in anycircumstances. The Convention applies not only in peacetime, but also during war or any other public emergency."Council of Europe, Explanatory Report, para. 29./56/ European Convention for the Prevention ofTorture, Art. 8. In certain situations, the visits couldtake place immediately after notification. Council ofEurope, Explanatory Report, para. 56. Although the stateparty may require that an official accompany the Committee"in places which are secret for reasons of nationaldefence or which enjoy special protection for reasons ofnational security. . . , an accompanying person must notbe present at the interviews in private". Council ofEurope, Explanatory Report, para. 63. In such privateinterviews, the Committee "can choose its own interpretersand must not be subjected to any time-limits". Id., para.66. In addition, "[t]he Committee may communicate freelywith any person whom it believes can supply relevantinformation." Convention for the Prevention of Torture,Art. 8 (4)./57/ In "exceptional circumstances", theauthorities may make representations to the Committee forthe Prevention of Torture "against a visit at the time orto the particular place proposed by the Committee", but"[s]uch representations may be made only on the grounds ofnational defence, public safety, serious disorder inplaces where persons are deprived of their liberty, themedical condition of a person or that an urgentinterrogation relating to a serious crime is in progress".Id., Art. 9 (1). The "exceptional circumstances" when theauthorities may make such representations are to benarrowly construed since "[v]isits may take place in anycircumstances", including "war or any other publicemergency". Id., para. 29. States parties may notprevent the visit, but may simply request otherarrangements to be made with respect to the visit. Theconvention requires that the state party making the

representations in these exceptional circumstances and onthese limited grounds "immediately enter intoconsultations in order to clarify the situation and seekagreement on arrangements to enable the Committee toexercise its functions expeditiously. Such arrangementsmay include the transfer to another place of any personwhom the Committee proposed to visit." Id., Art. 9 (2).In all cases, "the Committee should carry out the visitwithin a reasonable time after the notification". Councilof Europe, Explanatory Report, para. 56./58/ As of 3 July 1997, 35 of the 40 member statesof the Council of Europe had ratified the EuropeanConvention for the Prevention of Torture and four othermember states had signed it. Council of Europe, Chart ofSignatures and Ratifications of European Treaties,updating as of 3 July 1997./59/ In the context of cooperation between states inthe service of documents, passive mutual assistanceconsists "solely of sufferance of the acts of foreignsovereigns"; active mutual assistance consists of aforeign sovereign (requesting state) seeking the aid ofanother state's court in order to effect service ofprocess of the foreign sovereign's document within therequested state. Gerhard O.W. Mueller, supra, n. 18, p.199./60/ Gerhard O.W. Mueller, supra, n. 18, p. 203; seealso McCusker, "Some United States Practices inInternational Judicial Assistance", 37 Dept. State Bull.(1957), pp. 808, 809, cited in Mueller, p. 199, n. 38;Jennings & Watts, I Oppenheim's International Law, supra,n. 7, p. 1141./61/ Gerhard O.W. Mueller, supra, n. 18, p. 210./62/ Malcolm Anderson, Policing the World: Interpoland the Politics of International Police Cooperation(Oxford: Oxford University Press: 1989), p. 158./63/ Schengen Implementing Convention, signed 19June 1990, Art. 40./64/ Anderson, supra, n. 62, pp. 159-165./65/ Gerhard O.W. Mueller, supra, n. 18, p. 211.Such informal passive mutual assistance is quiteextensive:

"Information on the movement of suspects engaged ininternational criminal transactions and of contraband- narcotics in the case of United States TreasuryAgents - is being exchanged. Upon the request of thehost country the American agents will relay

information to the United States, warranting arrests,as well as searches and seizures in the host nation,under United States law, and vice versa. It is to benoted that these relations exist in the completeabsence of any treaty, executive agreement orofficial government compact. Evidence of due processviolations resulting from such procedures has notcome to our attention. It appears that the officerswill act only where the law of the country in whichthe act is to be performed will permit it."

Id. The most comprehensive discussion of thesedevelopments is in Ethan A. Nadelmann, Cops AcrossBorders: The Internationalization of U.S. Criminal LawEnforcement (1993), particularly pp. 103-187./66/ Gerhard O.W. Mueller, supra, n. 18, p. 211 (". . there seems to be no reason for sovereign objectionsto the participation of foreign law enforcement officersin the official activities of local law enforcementagencies, if the foreign agents act merely in an advisoryor observers' capacity, e.g., for purposes ofidentification.")./67/ Schengen Implementing Convention, Arts 41-43.Belgium, Luxembourg and the Netherlands had reached asimilar agreement in the Treaty of 27 June 1962 ConcerningExtradition and Mutual Assistance in Criminal Matters,Art. 27, and Protocol of 1974, reprinted in William C.Gilmore, Mutual Assistance in Criminal and BusinessRegulatory Matters (Cambridge: Grotius PublicationsLimited, 1995), pp. 97-103, 104-109. For furtherinformation about the Schengen Implementing Convention,see the paper by William C. Gilmore in Action againstTransnational Criminality: Papers from the 1993 OxfordConference on International and White Collar Crime(London: Commonwealth Secretariat 1994), pp. 148-152, andA.H.J. Swart, "Police and security in the SchengenAgreement and Schengen Convention", inInternationalisation of Central Chapters on the Law ofAliens, Refugees, Security and Police (December 1991), pp.96-109./68/ Agreements on Comprehensive PoliticalSettlement of the Cambodia Conflict, signed at Paris, 23October 1991, published in UN Department of PublicInformation, DPI/1180, Jan. 1992; Directives 93/1 and 93/2of Special Representative of the Secretary-General;Amnesty International, Peace-keeping and Human Rights (AIIndex: IOR 40/01/94), p. 5.

/69/ Amnesty International, Bosnia-Herzegovina: Theinternational community's responsibility to ensure humanrights (AI Index: EUR 63/14/96), p. 9, 64-77./70/ "Requests for assistance addressedthrough the State organs referred to in Article 3 tothe police or any judicial bodies shall be compliedwith. Such assistance may include but is not limitedto: (a) the identification and location of persons . ." Yugoslavia Tribunal Guidelines, Guideline 8 (a).

"At the request of the International Tribunal, courtsor other competent authorities will provide allnecessary assistance for the identification, locationand interviewing of witnesses and experts within theState." Id., Guideline 9 (1).

"Relevant data from police files concerning crimescoming under the jurisdiction of the InternationalTribunal shall be supplied to the InternationalTribunal in accordance with instructions given by theMinistry of Justice [or any other appropriateMinistry or authority]". Id., Guideline 10./71/ Commonwealth Scheme, Art. 13 (a), (14)./72/ For a discussion of the needs of the witnessprotection, see Part II, pp. 36-38./73/ Yugoslavia Statute, Art. 29 (2) (c); RwandaStatute, Art. 28 (2) (c)./74/ See, for example, UN Mutual Assistance Treaty,Art. 10; European Convention on Mutual Assistance, Art. 7;Commonwealth Scheme, Art. 15; ECOWAS Convention, Art. 10;Ellis & Pisani, supra, n. 7, p. 164; McClean,International Judicial Assistance, supra, n. 18, pp. 135-136./75/ See Resolution 95/C 327/04 of the Council ofthe European Union on the protection of witnesses in thefight against international organized crime adopted on 23November 1995 for one attempt to define guidelines forsuch video testimony consistent with the rights of theaccused./76/ Article 28 of the Rwanda Statute is identical./77/ Yugoslavia Rules, Rules 39 (I), (iii); 54;Rwanda Rules, Rules 39 (I), (iii); 54./78/ Blaski_ Appeals Chamber judgment, paras 48-49./79/ Id., para. 50./80/ Id./81/ Id.; id., para. 51./82/ Thus, a state may request a state to invite a

person at liberty in that state to appear in therequesting state as a witness, UN Mutual AssistanceTreaty, Art. 14 (1), but a person who does not consent toa request to accept such an invitation "shall not, byreason thereof, be liable to any penalty or be subjectedto any coercive measure, notwithstanding any contrarystatement in the request or summons". Id., Art. 15 (3).Similarly, Article 7 (1) of the European Convention onMutual Assistance requires the requested state to servewrits issued by the requesting state, Article 8 providesthat persons served with a summons incur no penalty forfailing to appear:

"A witness or expert who has failed to answer asummons to appear, service of which has beenrequested, shall not, even if the summons contains anotice of penalty, be subjected to any punishment ormeasure of restraint, unless subsequently hevoluntarily enters the territory of the requestingParty and is there again duly summoned."

Other multilateral mutual assistance instruments also donot require the requested state to compel witnesses toappear in the requesting state. Commonwealth Scheme, Art.23 (4); ECOWAS Convention, Art. 12./83/ See, for example, Ellis & Pisani, supra, n. 72,p. 165./84/ Treaty on Mutual Assistance in Criminal Matterswith the Italian Republic (United States), signed at Rome9 November 1982, Art. 15 (1), cited in Ellis & Pisani,supra, n. 72, p.165, n. 94 & pp. 177-178, n. 174. Thereare serious limitations with this provision, however,which would preclude its use as a model for internationalassistance to the permanent international criminal court.For example, it permits the requested state to use therequested state's procedures and the requested state maydecline to compel the witness to appear on a "reasonablebasis" or when the person could not be compelled to appearand testify in similar circumstances in the requestedstate. Id./85/ McClean, International Judicial Assistance,supra, n. 18, p. 137./86/ Article 11 (1) of the UN Mutual AssistanceTreaty requires requested states to take the testimony ofwitnesses in their territory and to require them toproduce evidence for transmission to the requested state,but does not require the requested state to send the

witness to the requesting state and provides that thetestimony is to be taken in accordance with the law of therequested state:

"The requested State shall, in conformity with itslaw and upon request, take the sworn or affirmedtestimony, or otherwise obtain statements of personsor require them to produce items of evidence fortransmission to the requesting State."

The European Convention on Mutual Assistance is similarlyrestrictive. It provides that a requested state shallexecute letters rogatory to obtain evidence such asstatements from witnesses, experts and accused, "in themanner provided for by its law", not in accordance withinternational standards. Id., Art. 3 (1); see also id.,Art. 3 (2) (requested state obliged to compel testimonyunder oath only if its law permits it); Explanatory reporton the European Convention on mutual assistance incriminal matters, p. 14./87/ Neither the UN Mutual Assistance Treaty nor theEuropean Convention on Mutual Assistance recognizes aright of a judge or prosecutor of the requesting state,defence counsel or counsel for a victim or victim's familyappearing as a partie civile to participate in the hearingof witnesses in the requested state, although they permitthem to be present. Article 4 of the European Conventionon Mutal Assistance requires the requested state to givethe requesting state notice of the hearing at which thewitness is to give evidence and that "[o]fficials andinterested persons may be present if the requested Partyconsents". Article 11 (2) of the UN Mututal AssistanceTreaty provides: "Upon the request of the requestingState, the parties to the relevant proceedings in therequesting State, their legal representatives andrepresentatives of the requesting State may, subject tothe laws and procedures of the requested State, be presentat the proceedings." This article does not, however,require that they receive notice of the hearing. Article16 (3) of the Commonwealth Scheme simply says that a state"may ask that, so far as the law of the requested countrypermits, the accused person or his legal representativemay attend the examination of the witness and askquestions of the witness", but it does not extend theright to ask to the prosecution and does not oblige therequested state to grant the request. Bilateral mutualassistance agreements also permit the presence of the

accused, counsel for the accused and any other personrequested by the requesting state to be present. Ellis &Pisani, supra, n. 72, p. 165./88/ For example, Article 12 (1) (a) of the UNMutual Assistance Treaty provides that "[a] person who isrequired to give evidence where . . . : (a) The law of therequested State permits or requires that person to declineto give evidence in similar circumstances in proceedingsoriginating in the requested State". Article 12 (1)(b)permits a witness to decline to give evidence where thelaw of the requesting state permits or requires thewitness to decline to give evidence. See alsoCommonwealth Scheme, Art. 19 (1); ECOWAS Convention, Art.12./89/ There is no express provision in the ILC draftstatute authorizing defence counsel or counsel for avictim's family appearing as a partie civile in theproceedings to request subpoenas or warrants or for thepresidency to issue them. Amnesty International believesthat the right to equality of arms requires that defencecounsel have the same right as a prosecutor to seek andobtain such orders./90/ Yugoslavia Rules, Rule 90 bis./91/ UN Mutual Assistance Treaty, Art. 13; EuropeanConvention on Mutual Assistance, Art. 11; CommonwealthScheme, Art. 24; ECOWAS Convention, Art. 13./92/ Commonwealth Scheme, Art. 25; ECOWAS, Art. 15./93/ For the text of the legislation, seesupplements to Handbook for government cooperation,supra, n. 3./94/ Commonwealth Scheme, Art. 23 (travelling,subsistence and other expenses payable by the requestingcountry); ECOWAS Convention, Art. 14 (3) (allowances andtravel and subsistence expenses to be payable byrequesting state)./95/ For example, Article 5 (1) of the EuropeanConvention on Mutual Assistance permits reservations tothe obligation to execute letters rogatory for search andseizure on the basis that the offence must be an offencein both the requesting and requested state, that theoffence is an extraditable offence and that any searchesand seizures be conducted in conformity with the law ofthe requested state. Article 17 of the UN MutualAssistance Treaty also authorizes searches and seizuresonly in so far as the requested state's law permits: "Therequested State shall, in so far as its law permits, carryout requests for search and seizure and delivery of any

material to the requesting State for evidentiary purposes,provided that the rights of bona fide third parties areprotected." Article 17 (1) of the Commonwealth Schemeprovides that a state "may seek assistance in the searchfor and seizure of property in the requested country",specifying the information required under the law of therequested country, but does not require that country togrant the request. Thus, these instruments would permitthe requested state to review a determination of therelevance of the seized evidence to the trial in therequesting state. Ellis & Pisani, supra, n. 72, p. 164;McClean, International Judicial Assistance, supra, n. 18,p. 134. Such determinations by national courts would becompletely in appropriate in the context of a trial in thepermanent international criminal court./96/ Article 4 of the European Convention on MutualAssistance provides that such persons may be present, butonly if the requested state permits it. The UN MutualAssistance Treaty permits these persons to be present, butsubject to the laws and procedures of the requested State.UN Mutual Assistance Treaty, Art. 11 (2)./97/ UN Mutual Assistance Treaty, Art. 4./98/ The term "procuring evidence" pursuant to aletter rogatory under Article 3 (1) of the EuropeanConvention on Mutual Assistance is intended to includesearch and seizure. Council of Europe, Explanatory reporton the European Convention on Mutal assistance in criminalmatters (Strasbourg 1969). However, the UN MutualAssistance Treaty has separate articles concerning therequirement of witnesses "to produce items of evidence",Article 11 (1), and searches and seizures, Article 17,suggesting that there is some ambiguity in the term"production of evidence"./99/ See, for example, Commonwealth Scheme, Art. 1(3) (h)./100/ Article 6 of the Italian Decree Law No. 544-28, 28 December 1993, and Article 8 of the Swiss law,Arr?t fZˇdZˇral relatif ˆ la coopZˇration avec les tribunauxinternationals chargZˇs de poursuivre les violations gravesdu droit international humanitaire, 21 dZˇcembre 1995,require national courts to provide the tribunals withinformation of any crimes within their jurisdiction whichthey come across in their proceedings. Article 2 of theFrench law on cooperation with the Yugoslavia Tribunalrequires that it be informed of all pending proceedingsrelating to acts which may fall within the tribunal'sjurisdiction. For the text of this legislation, see

supplements to Handbook for government cooperation, n. 3./101/ Articles 41 to 43 of the Australian lawprovide for the tribunals to sit in Australia and Articles36 to 40 of the New Zealand legislation provide for thetribunals to sit in that state. For the text of thislegislation, see supplements to Handbook for governmentcooperation, n. 3./102/ Yugoslavia Rules, Rule 40; Rwanda Rules, Rule40./103/ See, for example, Part II, p. 40; see alsoRedress, Promoting the right to reparation for survivorsof torture: What role for a permanent internationalcriminal court? (June 1997), p. 43./104/ David McClean, "Seizing the Proceeds of Crime:The State of the Art", 38 Int'l & Comp. L. Q. (1989),pp.334, 341./105/ David McClean, "Seizing the Proceeds ofCrime", supra, n. 105, p. 339./106/ David McClean, "Seizing the Proceeds ofCrime", supra, n. , p. 339./107/ Morris & Scharf, supra, n. 7, p. 285. Thework of the Yugoslavia Tribunal "shall be carried outwithout prejudice to the right of the victims to seek,through appropriate means, compensation for damagesincurred as a result of violations of internationalhumanitarian law". SC Res. 827, para. 7./108/ Money laundering involves three stages: "theconversion of illicit cash to another asset, theconcealment of the true source of ownership of theillegally acquired proceeds, and the creation of theperception of legitimacy of source and ownership." M.E.Beare et al., Tracing of Illicit Funds: Money Launderingin Canada (Ottawa: Ministry of the Solicitor General ofCanada 1990), p. X, n.1, quoted in W.C. Gilmore,"Introduction", International Efforts to Combat MoneyLaundering (Cambridge: Grotius Publications Limited), p.x./109/ Adopted by Eighth UN Congress on thePrevention of Crime and Treatment of Offenders, Havana,Cuba, 27 August-7 September 1990, UN Doc. A/Conf.144/28/Rev.1, I.A.11, welcomed GA Res. 45/116, 14 December1990, 45 UN GAOR Supp. (No.49A) 211, UN Doc. A/RES/45/116.The Optional Protocol was added "on the ground thatquestions of forfeiture are conceptually different from,although closely related to, matters generally accepted asfalling within the description of mutual assistance".Id., n.

/110/ Id. The importance of banking secrecy laws asan impediment to the tracing of the proceeds of genocideand other crimes against humanity is demonstrated by theinability for half a century of spouses and children totrace the property held in banks which was seized fromthose exterminated in death camps during the Second WorldWar./111/ This interpretation is suggested by thefootnote to Article 5 stating that "[t]he parties mightconsider widening the scope of the present Protocol by theinclusion of references to victims' restitution and therecovery of fines imposed as a sentence in a criminalprosecution", although at least one of those involved inthe drafting of this provision has stated that Article 6was not intended to exclude protection of the rights ofvictims./112/ For a comprehensive review of theseinstruments, see William C. Gilmore, Dirty Money: Theevolution of money laundering counter-measures(Strasbourg: Council of Europe Press 1995)./113/ The 1993 ILC draft statute permitted the courtto order restitution or forfeiture of property used inconjunction with the crime. However, the ILC Commentaryto Article 47 states that at the 1994 session,

"some members of the Commission questioned theability of the Court to determine the ownership ofstolen property in the absence of a claim filed bythe original owner, which might need to be consideredin a separate proceeding. Others felt that it wasnot appropriate to authorize the Court to order thereturn of stolen property, a remedy which theyconsidered to be more appropriate in a civil than ina criminal case . . . . On balance the Commissionconsidered that these issues were best left tonational jurisdictions and to international judicialcooperation agreements, of which there is a growingnetwork. The relevant provisions have accordinglybeen deleted."

Not only may the Yugoslavia and Rwanda Tribunals awardrestitution, but many civil law jurisdictions permitcriminal courts to award restitution and compensationbased on presentations by victims or their familiesappearing as a partie civile in a criminal trial and thepatchwork of mutual assistance agreements is stillinadequate to provide recovery for core crimes.

/114/ See Part II, pp. 46-62./115/ Id., p. 45./116/ Guideline 5 (3) of the Yugoslavia TribunalGuidelines requires such notice before the arrest of theaccused. See following section./117/ See generally, Part II, pp. 46-62./118/ See Yugoslavia Rules, Rule 40 bis./119/ Article 3 of the Yugoslavia TribunalGuidelines provides:

"Without prejudice to the competence of the Ministryof Foreign Affairs, the Ministry of Justice [or anyother appropriate Ministry or authority] shall be thecentral authority responsible for receivingcommunications and requests from the InternationalTribunal. The Ministry of Justice [or any otherappropriate Ministry or authority] shall verify thata communication or request is in proper form andtransmit it to the competent authorities forcompliance."

In the context of serving warrants, Article 5 (1) of theYugoslavia Tribunal Guidelines provide:

"An arrest warrant issued by a Judge of theInternational Tribunal will be addressed to theMinistry of Justice [or any other appropriateauthority] which will verify that the originaldocuments are in proper form and transmit a copy ofthe arrest warrant for execution to the ChiefProsecutor [or any other appropriate officials suchas Director of Public Prosecutions, Attorney-General,Procureur General, Procuratore Generale, etc.] of theState."/120/ Article 5 (3) of the Yugoslavia TribunalGuidelines provides:

"Prior to the execution of a warrant of arrest, theChief Prosecutor [or any other appropriate officialssuch as Director of Public Prosecutions, AttorneyGeneral, Procureur General, Procuratore Generale,etc.] where he is able to do so, must inform theProsecutor of the International Tribunal so that hemay be present as from the time of arrest."/121/ Article 5 (4) of the Yugoslavia TribunalGuidelines provides:

"Upon the arrest of the accused, the Chief Prosecutor[or any other appropriate officials such as Directorof Public Prosecutions, Attorney General, ProcureurGeneral, Procuratore Generale, etc.] shall promptlynotify the Registrar of the International Tribunal."/122/ Article 5 (5) of the Yugoslavia TribunalGuidelines provides:

"If the Chief Prosecutor [or any other appropriateofficials such as Director of Public Prosecutions,Attorney General, Procureur General, ProcuratoreGenerale, etc.] is unable to execute the arrestwarrant, he shall report this fact forthwith to theRegistrar of the International Tribunal."/123/ Article 5 (2) of the Yugoslavia TribunalGuidelines provides:

"The Chief Prosecutor [or any other appropriateofficials such as Director of Public Prosecutions,Attorney General, Procureur General, ProcuratoreGenerale, etc.] of the State shall use his bestendeavours to ensure the prompt arrest of any personwithin the State against whom an arrest warrant hasbeen issued and inform the accused at the time ofarrest of his or her rights and the charges againshim or her in a language he or she understands."/124/ Part II, p. 45./125/ See generally, Part II, pp. 46-62./126/ For the reasons why transfer to the courtwould satisfy the try or extradite obligation, see Part I,pp. 15-16./127/ See, for example, Second Annual Report of theInternational Tribunal for the Prosecution of PersonsResponsible for Serious Violations of Humanitarian LawCommitted in the Territory of the Former Yugoslavia Since1991, UN Doc. A/50/365-S/1995/728, 25 August 1995, para.131./128/ Illicit Traffic Treaty, adopted in 1995./129/ Council of Europe, Illicit Traffic TreatyExplanatory Report, para. 69./130/ One commentator has explained:

"Much of the material on extradition depends onquestions of internal and particularly ofconstitutional law and the effect of treaties onmunicipal rules. However, some courts, in givingextradition in the absence of a treaty, have

abstracted from existing treaties and municipalprovisions certain 'general principles ofinternational law'. "

Ian Brownlie, Public International Law (Oxford: ClarendonPress 4th ed. 1990), p. 316 (footnote omitted)./131/ Kenneth J. Harris & Robert Kushen, "Surrenderof Fugitives to the War Crimes Tribunals for Yugoslaviaand Rwanda: Squaring International Legal Obligations withthe U.S. Constitution", 7 Criminal Law Forum (1996), pp.561, 587 (footnotes omitted)./132/ Id., p. 587, n. 76./133/ International Law Association, Committee onExtradition and Human Rights, Second Report (Helsinki1996), p. 8./134/ That instrument provides that extradition maybe refused:

"If the person whose extradition is requested is anational of the requested State. Where extraditionis refused on this ground, the requested State shall,if the other State so requests, submit the case toits competent authorities with a view to takingappropriate action against the person in respect ofthe offence for which extradition has beenrequested."

UN Model Treaty on Extradition, adopted by Eighth UNCongress on the Prevention of Crime and the Treatment ofOffenders, Havana, 27 August-7 September 1990, UN Doc.A/CONF. 144/28/Rev. 1, 1.A.10, welcomed in G.A. Res.45/116 on 14 December 1990, 45 UN GAOR Supp. (No. 49A)211, UN Doc. A/RES/45/116., Art. 4 (a). ECOSOC Res.E/1997/26 adopted on 21 July 1997 urges that thisprovision be modified to permit surrender for seriousoffences or permit temporary transfer for trial and returnfor service of sentence./135/ International Law Association, Second Report,supra, n. 133, p. 8./136/ Id., p. 9./137/ That treaty provides that extradtion may berefused:

"If the offence for which extradition is requested isregarded under the law of the requested State ashaving been committed in whole or in part within thatState. Where extradition is refused on this ground,

the requested State shall submit the case to itscompetent authorities with a view to takingappropriate action against the person for the offencefor which extradition had been requested".

UN Model Treaty on Extradition, Art. 4 (f) (footnoteconcerning vessels and aircraft omitted). It also permitsrefusal:

"If the offence for which extradition is requestedhas been committed ouside the territory of eitherParty and the law of the requested State does notprovide for jurisdiction over such an offencecommitted outside its territory in comparablecircumstances".

Id., Art. 4 (e)./138/ International Law Association, Second Report,supra, p. 9 ("There can therefore be no justification forthe continued use of such restrictive clauses which denyextradition where jurisdiction is to be exercised inaccordance with customary international law.")./139/ Jennings & Watts, 1 Oppenheim's InternationalLaw, supra, n. 7, p. 963 ("Although the principle is nowwidely accepted that political criminals should not beextradited, there is probably no rule of customaryinternational law which prevents their extradition.")./140/ Id., p. 963 ("So far all attempts to formulatea satisfactory and generally agreed definition of the termhave failed. The difficulty lies in large part in therebeing no general agreement as to what degree ofpoliticisation is needed in order to classify an act as'political', or indeed whether the act is to be regardedas political at all: what in the eyes of one state is apolitical movement seeking to achieve political endswithin a state and as such deserving of protection, maybe, in the eyes of another, a band of criminals deservingpunishment.") (footnote omitted); M. Cherif Bassiouni,International Extradition: United States Law and Practice(Dobbs Ferry, New York: Oceana Publications, Inc. 3d ed.1996), p. 505 ("by its very nature it eludes a precisedefinition")./141/ UN Model Treaty on Extradition, Art. 3 (a)(footnote omitted). A footnote suggests:

"Some countries may wish to add the following text:'reference to an offence of a political nature shall

not include any offence in respect of which theParties have assumed an obligation, pursuant to anymultilateral convention, to take prosecutorial actionwhere they do not extradite, or any other offencethat the Parties have agreed is not an offence of apolitical character for the purposes of extradition".

ECOSOC Res. E/1997/26 urges that this provision bemodified to say that some countries may wish to excludefrom the concept of political offence "acts of violence,such as serious offences involving an act of violenceagainst the life, physical integrity or liberty of aperson"./142/ Harris & Kushen, supra, n. 131, p. 571(footnote omitted); "Extradition", Marjorie Whiteman,Digest of International Law (1968), Vol. 6, Sect. 15./143/ Opened for signature 9 Dec. 1948, 78 UNTS 277./144/ G.A. Res. 3074 (XXVIII) (Principles ofInternational Co-operation in the Detention, Arrest,Extradition and Punishment of Persons Guilty of War Crimesand Crimes against Humanity), 3 December 1973. See alsoR. v. Wilson, ex parte Witness T, 86 Int'l L. Rep., pp.169, 179-180./145/ GA Res. 2840 (XXVI), 26 UN GAOR Supp. (No. 29)at 88, UN Doc. A/8429 (1971)./146/ Draft Code of Crimes, Art. 9. TheInternational Law Commission's commentary to this articlestates that it "establishes the general principle that anyState in whose territory an individual alleged to havecommitted [one of these crimes] is present is bound toextradite or prosecute the offender". In addition, thisobligation "is without prejudice to any right orobligation that such a State may have to transfer such anindividual to an international criminal court"./147/ Adopted 15 Oct. 1975, Art. 1./148/ See, for example, Hersch Lauterpacht, "TheLaw of Nations and the Punishment of War Crimes", 1944Brit. Y.B. Int'l L., pp. 58, 91 (war crimes)./149/ Article 8 (1) of the Convention againstTorture provides:

"The offences referred to in Article 4 [all acts oftorture] shall be deemed to be included asextraditable offences in any extradition treatyexisting between States Parties. States Partiesundertake to include such offences as extraditableoffences in every extradition treaty to be concluded

between them."/150/ Inter-American Convention to Prevent andPunish Torture, signed 9 December 1985, OAE/Ser.L.VIl.92,doc. 31 rev.3, 3 May 1996, entered into force 28 February1987, Arts 11, 13./151/ Principle 18 requires that

"[g]overnments shall ensure that persons identifiedby the investigation as having participated in extra-legal, arbitrary or summary executions in anyterritory under their jurisdiction are brought tojustice. Governments shall either bring such personsto justice or cooperate to extradite any such personsto other countries wishing to exercise jurisdiction.This principle shall apply irrespective of who andwhere the perpetrators or the victims are, theirnationalities or where the offence was committed."/152/ Article 14 of the UN Declaration provides thatpersons responsible for this crime must be brought beforethe authorities of the state in which the crime occurred,"unless he has been extradited.to another State wishing toexercise jurisdiction in accordance with the relevantinternational agreements in force"./153/ Inter-American Convention of ForcedDisappearance of Persons, adopted 9 June1994,OEA/Ser.L.VII.92, doc. 31 rev. 3, 3 May 1996, enteredinto force 29 March 1996, Art. V./154/ Extradition Law of 10 March 1927, Art. 5 (2)(acts committed during a civil war are not politicaloffences if they are "acts of odious barbarism andvandalism prohibited by the laws of war")./155/ In re Bohne, 62 Am. J. Int'l L. (1968), p. 784("Extradition will not be denied on grounds of thepolitical or military character of the charges where weare dealing with cruel or immoral acts which clearly shockthe conscience of civilized people.")./156/ R. v. Wilson ex parte Witness T, [1976] 135CLR 179, 86 Int'l L. Rep. 169 (Australia, High Court, 21June 1976)../157/ State v. Schumann, 39 Int'l L. Rep. 433(Ghana, Court of Appeal, Accra, 4 November 1966)./158/ Kroeger v. The Swiss Federal Prosecutor'sOffice, 72 Int'l L. Rep. 606 (Swiss Fed. Trib. 1966) (warcrimes and crimes against humanity not within politicaloffence exception)./159/ Re Gross, ex parte Treasury Solicitor, [1968]3 All Eng. Rep. 804.

/160/ Most United States courts have rejected theapplicability of the exception in such cases. Harris &Kushen, supra, n. XXX, p. 588, n. 78. Ahmad v. Wigen, 726F. Supp. 389, 401-09 (Sept. 26, 1989 opinion) (violationsof the law of armed conflict do not fall within thepolitical offence exception), 726 F. Supp. 1032 (Feb. 14,1989 opinion) (E.D.N.Y. 1989), aff'd, 910 F.2d 1063, 1066(2d Cir. 1990); Artukovic v. Rison, 628 F. Supp. 1370,1376 (C.D. Cal 1986) (crimes against humanity and warcrimes not within the political offence exception); In reExtradition of Demjanjuk, 612 F. Supp. 544, 569-71 (N.D.Ohio 1985). See also In the Matter of Extradition ofSuarez Mason, 694 F.Supp. 676, 705 (N.D. Cal. 1988). Onecourt interpreted the political offence exception in aUnited States-Servia extradition treaty as precludingextradition for war crimes, United States ex rel.Karadzole v. Artukovic, 170 F. Supp. 383, 393 (C.D. Cal.1959), although this decision was rejected in the samecase 27 years later. A plurality in Quinn v. Robinson,783 F.2d 776, 803-04 (9th Cir.), cert. denied, 479 U.S.882 (1986), stated that the political offence does notapply to crimes against humanity, but did not address thequestion of war crimes. See also Eain v. Wilkes, 641 F.2d504, 518-23 (7th Cir. 1989), cert. denied, 454 U.S. 894(1981) (attacks on civilians not within political offenceexception)./161/ In re Extradition of Artukkovic, 628 F. Supp.1370, 1376 (C.D. Cal. 1986)./162/ Thus, Article 3 (b) of the UN Model Treaty onExtradition requires refusal of extradition: "If theoffence for which extradition is requested is an offenceunder military law, which is not also an offence underordinary criminal law"./163/ International Law Association, Second Report,supra, n. 133, p. 10./164/ Harvard Draft Convention on Extradition, Art.6, 29 Am. J. Int'l L. (Supp.) (1933), p. 22./165/ Brownlie, supra, n. 130, p. 316./166/ International Law Association, Second Report,supra, n. 133, pp. 6-7./167/ For example, states parties to the GenocideConvention are required to enact the necessary legislationto give effect to the provisions of that convention, and,in particular, to provide effective penalties for thecrime of genocide and ancillary crimes. GenocideConvention, Art. V. Each state party to the Conventionagainst Torture must "ensure that all acts of torture are

offences under its criminal law", Convention againstTorture, Art. 4 (1), and "take such measures as may benecessary to establish its jurisdiction over such offencesin cases where the alleged offender is present in anyterritory under its jurisdiction and it does not extraditehim". Id., Art. 5 (2). States parties to the GenevaConventions "undertake to enact any legislation necessaryto provide effective penal sanctions for personscommitting, or ordering to be committed, any of the gravebreaches" and to "take measures necessary for thesuppression of all acts contrary to the provisions of [theGeneva Conventions] other than grave breaches".Convention for the Amelioration of the Condition of theWounded and Sick in Armed Forces in the Field, Aug. 12,1949 (First Geneva Convention), 6 UST 3114, 75 UNTS 31,Art. 49, para. 1; Convention for the Amelioration of theCondition of the Wounded, Sick and Shipwrecked Members ofArmed Forces at Sea, Aug. 12, 1949 (Second GenevaConvention), 6 UST 3217, 75 UNTS 85, Art. 50, para. 1;Convention relative to the Protection of Prisoners of War,Aug. 12, 1949 (Third Geneva Convention), 6 UST 3316, 75UNTS 135, Art. 129, para. 1; Convention relative to theProtection of Civilian Persons in Time of War (FourthGeneva Convention), Aug. 12, 1949, 6 UST 3516, 75 UNTS287, Art. 146, para. 1./168/ Brownlie, supra, n. 130, p. 316./169/ International Law Association, Second Report,supra, n. 133, p. 7, citing J..A. Frowein, "Male CaptusMale Detentus - A "Human Right", Essays in Honour of HenrySchermers, pp. 175, 178./170/ International Law Association, Second Report,supra, n. 133, p. 7./171/ Part I, p. 63./172/ Article 3 (e) of the UN Model Treaty onExtradition requires the requested state to refuse toextradite someone: "If the person whose extradition isrequested has, under the law of either Party, becomeimmune from prosecution or punishment for any reason,including lapse of time . . ." A footnote states thatsome countries may wish to make this an optional groundfor refusal. ECOSOC Res. E/1997/26 would add to thefootnote that "Countries may wish to restrictconsideration of the issue of lapse of time to the law ofthe requesting State only or to provide that acts ofinterruption in the requesting State should be recognizedin the requested State."/173/ Allied Control Council Law No. 10, Punishment

of Persons Guilty of War Crimes, Crimes against Peace andAgainst Humanity, 3 Official Gazette Control Council forGermany, 20 December 1945 (1946), pp. 50-55, Art. II (5)./174/ Harris & Kushen, supra, n. 133, p. 31(footnote omitted)./175/ Article 3 (e) of the UN Model Treaty onExtradition requires the requested state to refuseextradition: "If the person whose extradition is requestedhas, under the law of either Party become immune fromprosecution or punishment for any reason, including . . .amnesty". A footnote to this article states that somestates may wish to make this an optional ground forrefusal./176/ See generally Douglass Cassel, "Lessons fromthe Americas: Guidelines for International Response toAmnesties for Atrocities", 59 L. & Cont. Prob. (1996), p.191 [page proofs]; Diane F. Orentlilcher, "SettlingAccounts: The Duty to Prosecute Human Rights Violations ofa Prior Regime", 100 Yale L.J. (1991), pp. 2537-2615;Naomi Roht-Arriaza, ""Combating Impunity: Some Thoughts onthe Way Forward", 59 L. & Cont. Prob. (1996), p. 87 [pageproofs]; Naomi Roht-Arriaza, ed., Impunity and HumanRights in International Law (Oxford: Oxford UniversityPress 1995)./177/ Article II (5) of Allied Control Council LawNo. 10, supra, n. XXX, provided that no "immunity, pardonor amnesty granted under the Nazi regime be admitted as abar to trial or punishment" for crimes against peace, warcrimes or crimes against humanity./178/ Principles of International Cooperation in theDetection, Arrest, Extradition and Punishment of PersonsGuilty of War Crimes and Crimes against Humanity, GA Res.3074 (XXVIII) (1973), para. 8 ("States shall not take anylegislative or other measures which may be prejudicial tothe international obligations they have assumed in regardto the detection, arrest, extradition and punishment ofpersons guilty of war crimes and crimes againsthumanity.")./179/ Genocide Convention, Art. I./180/ Id., Art. V ("The Contracting Partiesundertake to enact, in accordance with their respectiveConstitutions, the necessary legislation to give effect tothe provisions of the present Convention, and, inparticular, to provide effective penalties for personsguilty of genocide or any of the other acts enumerated inarticle III.")./181/ Id., Art. VI ("Persons charged with genocide

or any of the other acts enumerated in article III shallbe tried by a competent tribunal of the State in theterritory of which the act was committed, or by suchinternational penal tribunal as may have jurisdiction withrespect to those Contracting Parties which have acceptedits jurisdiction.")./182/ First Geneva Convention, Art. 49, para. 1;Second Geneva Convention, Art. 50, para. 1; Third GenevaConvention, Art. 129, para. 1; Fourth Geneva Convention,Art. 146, para. 1./183/ First Geneva Convention, Art. 49, para. 2;Second Geneva Convention, Art. 50, para. 2; Third GenevaConvention, Art. 129, para. 2; Fourth Geneva Convention,Art. 146, para. 2. The ICRC Commentary makes clear thatthe drafters of the Geneva Conventioins envisaged thatstates could satisfy their duty to bring to justice thoseresonsible for grave breaches by transferring suspects toan international criminal tribunal:

"[T]here is nothing in the paragraph [First GenevaConvention, Art. 49, para. 2] to exclude the handingover of the accused to an international penaltribunal, the competence of which is recognized bythe Contracting Parties. On this point theDiplomatic Conference declined expressly to take anydecision which might hamper future developments ofinternational law".

ICRC, I Commentary on the Geneva Conventions of 12 August1949 (1952), p. 366./184/ The common article provides: "No HighContracting Party shall be allowed to absolve itself orany other High Contracting Party of any liability incurredby itself or by another High Contracting Party in respectof [grave] breaches". First Geneva Convention, Art. 51;Second Geneva Convention, Art. 52; Third GenevaConvention, Art. 131; Fourth Geneva Convention, Art. 148.The official commentary by the ICRC makes clear that thiscommon provision removes any doubt that the duty toprosecute and punish the authors of grave breaches is"absolute". ICRC, I Commentary on the Geneva Conventionsof 12 August 1949 (1952), p. 373./185/ Under an article common to all fourconventions, each state party is obliged to "take measuresnecessary for the suppression of all acts contrary to theprovisions of the present Convention other than gravebreaches". First Geneva Convention, Art. 49, para. 3;

Second Geneva Convention, Art. 50, para. 3; Third GenevaConvention, Art. 129, para. 3; Fourth Geneva Convention,Art. 146, para. 3. States are expected to enactlegislation providing for punishment of such breaches,with appropriate penalties, to be imposed after judicialor administrative proceedings. ICRC, I Commentary on theGeneva Conventions of 12 August 1949, supra, n. 184, p.368./186/ Although Article 6 (5) of Protocol Additionalto the Geneva Conventions of 12 August 1949, and relatingto the Protection of Victims of Non-International ArmedConflict (Protocol II) provides that "[a]t the end ofhostilities, the authorities in power shall endeavour togrant the broadest possible amnesty to persons who haveparticipated in the armed conflict, or those deprived oftheir liberty for reasons related to the armed conflict,whether they are interned or detained", as AmnestyInternational has pointed out to negotiators of peaceagreements, it is clear that this provision was intendedto apply to political crimes, such as treason, or ordinarycrimes, but not to serious violations of humanitarian law.Commentators subsequently have confirmed thisinterpretation. According to Naomi Roht-Arriaza, "theplacement of the article at the end of a section on penalprosecutions and the language on internees and detaineessuggests the drafters were primarily interested inreintegrating insurgents into national life". "CombatingImpunity", supra, n. 176, p. 91. Douglass Cassel hascommented that "Article 6 (5) seeks merely to encourageamnesty for combat activities otherwise subject toprosecution as violations of the criminal laws of thestates in which they take place. It is not meant tosupport amnesties for violations of internationalhumanitarian law." "Lessons from the Americas", supra, n., p. 212. In an authoritative intepretation by the ICRCcommunicated in 1995 to the Prosecutor of the Yugoslaviaand Rwanda Tribunals in 1995 and reiterated on 15 April1997:

"Article 6 (5) of Protocol II is the only and verylimited equivalent in the law of non-internationalarmed conflict of what is known in the law ofinternational armed conflict as 'combatant immunity',i.e., the fact that a combatant may not be punishedfor acts of hostility, including killing enemycombatants, as long as he respected internationalhumanitarian law, and that he has to be repatriated

at the end of active hostilities. In non-international armed conflicts, no such principleexists, and those who fight may be punished, undernational legislation, for the mere fact of havingfought, even if they respected internationalhumanitarian law. The 'travaux prZˇparatoires' of 6(5) indicate that this provision aims at encouragingamnesty, i.e., a sort of release at the end ofhostilities. It does not aim at an amnesty for thosehaving violated international humanitarian law."

Letter from Dr. Toni Pfanner, Head of the Legal Division,ICRC Headquarters, Geneva, to Douglass Cassel, quoted in"Lessons from the Americas", supra, n. 176, p. 212./187/ M. Cherif Bassiouni, Crimes against Humanityin International Law (Dordrecht: Martinus NijhoffPublishers 1992), pp. 492, 500-501; Carla Edelenbos,"Human Rights Violations: A Duty to Prosecute?", 7 LeidenJ. Int'l L. (1994), pp. 5, 8; Orentlicher, supra, n. 176,pp. 2585, 2593./188/ See, for example, Article 25 of the revisedset of principles for the protection and promotion ofhuman rights through action to combat impunity prepared bythe Special Rapporteur of the UN Sub-Commission onPrevention of Discrimination and Protection of Minoriteswhich the Sub-Commission has transmitted to the Commissionon Human Rights with a view to transmission to the GeneralAssembly for adoption. UN Doc. E/CN.4/Sub.2/1997/L.60, 26August 1997. That article provides that "Les auteurs descrimes graves selon le droit international ne peuventbZˇnZˇficier de telles mesures tant que l'Etat n'a passatisfait aux obligations enumZˇrZˇZˇs au Principe 18".(Advance copy) Principle 18 obligates states to bring tojustice those responsible for such violations: "L'impunitZˇconstitue un manquement aux obligations qu'ont les Etatsd'enqu?ter sur les violations, de prendre des mesuresadZˇquates ˆ l'Zˇgard de leurs auteurs, notamment dans ledomaine de la justice, pour qu'ils scient poursuivis,jugZˇs et condamnZˇs ˆ des peines appropriZˇZˇs, d'assurer auxvictimes des voies de recours efficaces et la rZˇparationdu prZˇjudice subi, et de prendre toutes mesures destinZˇZˇsˆ Zˇviter le renouvellement de telles violations.". Id./189/ Principle 18 of the UN Principles on theEffective Prevention and Punishment of Extra-legal,Arbitrary and Summary Executions provides:

"Governments shall ensure that persons identified by

the investigation as having participated in extra-legal, arbitrary or summary executions in anyterritory under their jurisdiction are brought tojustice. Governments shall either bring such personsto justice or cooperate to extradite any such personsto other countries wishing to exercise jurisdiction.This principle shall apply irrespective of who andwhere the perpetrators or the victims are, theirnationalities or where the offence was committed."/190/ Article 18 (1) of the UN Declaration on theProtection of All Persons from Enforced Disappearanceprovides that persons who are alleged to have committedforced disappearances "shall not benefit from any specialamnesty law or similar measures that might have the effectof exempting them from any criminal proceedings orsanction"./191/ Article 7 of the UN Convention against Tortureand Other Cruel, Inhuman or Degrading Treatment orPunishment requires every state party "in the territoryunder whose jurisdiction a person alleged to havecommitted any offence referred to in article 4 [an act oftorture] is found shall in the cases contemplated inarticle 5 [recognizing universal jurisdiction], if it doesnot extradite him, submit the case to its competentauthorities for the purpose of prosecution"./192/ Inter-American Convention on the Prevention,Punishment, and Eradication of Violence against Women, OASDoc. OEA/ser.L.V/II.92, Doc.31 rev.3 (1996), adopted 9June 1994, entered into force 1995, Art. 7 (recognizingduties to pursue policies to punish and diligently toinvestigate and impose penalties for violence againstwomen)./193/ See UN Declaration of Basic Principles ofJustice for Victims of Crime and Abuse of Power, GA Res.40/34 of 29 November 1985./194/ The Human Rights Committee has stated, withregard to torture, that "amnesties are generallyincompatible" with the duty of states parties underArticles 2 (3) (guaranteeing the right to a remedy) andArticle 7 of the ICCPR (prohibiting torture). GeneralComment No. 20, para. 4, UN Doc. No.CCPR/C/21/Rev.1./Add.3, 7 April 1992. The Committee hasexpressed its concern about national amnesties for gravehuman rights violations. For example, it noted its "deepconcern" over Uruguay's Expiry Law preventing prosecutionof police and military officials and requiring thatpending prosecutions be dismissed, and it recommended that

the law be amended to permit victims to have an effectiveremedy for human rights violations. Comments of the HumanRights Committee, Uruguay, Consideration of ReportsSubmitted by States Parties Under Article 40 of theCovenant, UN Doc. CCPR/C/79/Add.19, 5 May 1993./195/ Vel‡squez Rodr’quez Case, Inter-Am. Ct. H.R.(Ser. C), No. 4 (1988) (judgment), para. 174 ("The Statehas a legal duty to take reasonable steps to prevent humanrights violations and to use the means at its disposal tocarry our a serious investigation of violations committedwithin its jurisdiction, to identify those responsible, toimpose the appropriate punishment and to ensure the victimadequate compensation.")./196/ Inter-American Commission on Human Rights hasfound that , Report No. 24/92 (Argentina), 82nd Sess.,OEA/ser.L/V/II.82, Doc. 24 (2 October 1992); Report No.26/92 (El Salvador), 82nd Sess., OEA/ser.L/V/II.82 (24September 1992); Report No. 29/92/ (Uruguay), 82nd Sess.,OEA/ser.L/V/II.82, Doc. 25 (2 October 1992)./197/ UN Model Treaty on Extradition, Art. 3 (f)("If the person whose extradition is requested has been orwould be subjected in the requesting State to torture orcruel, inhuman or degrading treatment or punishment")./198/ Id. ("If the person whose extradition isrequested . . . has not received or would not receive theminimum guarantees in criminal proceedings, as containedin the International Covenant on Civil and PoliticalRights, article 14")./199/ Id., Art. 4 (g) ("If the person whoseextradition is requested has been sentenced or would beliable to be tried or sentenced in the requesting State byan extraordinary or ad hoc court or tribunal")./200/ UN Model Treaty on Extradition, Art. 3 (g)("If the judgement of the requesting state has beenrendered in absentia, the convicted person has not hadsufficient notice of the trial or the opportunity toarrange for his or her defence and he has not had or willnot have the opportunity to have the case retried in hisor her presence")./201/ Id., Art. 3 (b) ("If the requested State hassubstantial grounds for believing that the request forextradition has been made for the purpose of prosecutingor punishing a person on account of that person's race,religion, nationality, ethnic origin, political opinions,sex or status, or that person's position may be prejudicedfor any of these reasons")./202/ Id., Art. 4 (d) ("If the offence for which

extradition is requested carries the death penalty underthe law of the requesting State, unless that State givessuch assurance as the requested State considers sufficientthat the death penalty will not be imposed or, if imposed,will not be carried out")./203/ UN Model Treaty on Extradition, Art. 4 (h)("If the requested State, while also taking into accountthe nature of the offence and the interests of therequesting State, considers that, in the circumstances ofthe case, the extradition of that person would beincompatible with humanitarian considerations in view ofage, health or other personal circumstances of thatperson")./204/ TheConvention on Laundering, Search, Seizureand Confiscation of the Proceeds from Crime, ETS 30(Strasbourg 8.XI.1990) provides in Article 14 (2) that"[t]he requested Party shall be bound by the findings asto the facts in so far as they are stated in a convictionor judicial decision of the requesting Party or in so faras such conviction or judicial decision is implicitlybased on them."/205/ ". . . in practice most internationaldecisions have been implemented by the parties". KarinOellers Frahm, "Judicial and Arbitral Decisions: Validityand Nullity", in 1 Encyclopedia of Public InternationalLaw (Amsterdam: North-Holland Publishers 1981), pp. 118,120. See also Edwin Borchard, "Limitations on tehFunctions of the International Criminal Court", 96 AnnalsAm. Acad. Pol. & Sci. (1921), p. 135; C. Wilfred Jenks,The Prospects of International Adjudication (1964), p.664; Oscar Schacter, "The Enforcement of InternationalJudicial and Arbitral Decisions", 54 Am. J. Int'l L.(1960), pp. 1, 2./206/ For some of the considerations in developingeffective methods of ensuring state compliance withinternational law, see Roger Fisher, Improving Compliancewith International Law (Charlottesville: University Pressof Virginia 1981); C. Wilfred Jenks, The Prospects ofInternational Adjudication (1964), pp. 663-726./207/ See Report of the Secretary General Pursuantto Paragraph 2 of Security Council Resolution 808 (1993),UN Doc. S/25704, 3 May 1993, paras 125-126./208/ See Yugoslavia Tribunal Guideline 14 (2) (providingthat decisions on pardon and commutation remain theresponsibility of the Yugoslavia Tribunal).

4 The international criminal court: Making the right choices- Part III

The international criminal court: Making the right choices -Part III 5

AI Index: IOR 40/13/97 Amnesty International November 1997

Amnesty International November 1997 AI Index: IOR 40/13/97