INTERNATIONAL COURT SHOULD HAVE EXTRADITION PRIORITY FOR `CORE CRIMES', PREPARATORY COMMITTEE FOR ESTABLISHMENT OF COURT TOLD

Press Release
L/2779

INTERNATIONAL COURT SHOULD HAVE EXTRADITION PRIORITY FOR `CORE CRIMES', PREPARATORY COMMITTEE FOR ESTABLISHMENT OF COURT TOLD

States parties to the statute of the proposed international criminal court should give that court priority over national courts in prosecuting persons accused of "core crimes" when those jurisdictions make competing extradition requests, the Preparatory Committee on the establishment of the court was told this morning.

Speaking as the Committee began its third week of deliberations, several delegations stressed that jurisdictions holding an accused person should defer to the international court when those individuals were charged with genocide, war crimes or crimes against humanity. They urged that in developing mechanisms for the transfer of accused persons, the court adhere to well- established procedures for extradition, and respect the constitutional limitations of States parties to the statute.

The representatives of Norway, Netherlands, Australia and Jamaica strongly supported the international court enjoying priority over the prosecution of core crimes.

The representative of the Netherlands said that it was incompatible with principle of complementarity that States would have to decide whether or not to cooperate with an extradition request from the court. The court, having jurisdiction over a certain crime, should prevail over any national jurisdiction. Once the court had jurisdiction, States should be under absolute obligation to grant it the greatest measure of cooperation and should be under absolute obligation to comply with its requests. The present statute left it to States to decide how much they wished to cooperate.

The representative of Jamaica said that there must be balance between court and States. He was not in support of a formulation that left the court dependent on national courts. In addition, he preferred the term transfer to

extradition, as that made for greater clarity. Further, the statute must set out the rules governing the transfer of the accused persons, including grounds for refusal by any State, and those grounds should be kept to a minimum.

The representative of Australia said most international agreements concerning extradition and jurisdiction turned on the laws of "requested" States. Such an approach was not appropriate for the international court. Traditional extradition rules governed judicial cooperation between States, not between States and an international court. The statute should contain two regimes: one on transfer; the other on a modified extradition regime. The regimes needed to be transparent. "Side agreements" between the court and States party should be avoided. Exceptions to the obligation to cooperate with the court should be limited and clearly spelled out in the statute.

Norway's representative said that the international court should be given preference over national jurisdictions when both wished to prosecute accused persons. National cooperation regarding the prosecution of "core crimes" should be as broad as possible. Exceptions to cooperation -- for example refusal to extradite nationals and the exception of political offenses -- should be minimized. The statute must make clear the obligations of States, and should provide predictability when it came to cooperation. He favoured the statute including precise rules governing cooperation.

The representative of Thailand said that the statute should be the basis for cooperation of States with the court, but it should not encroach upon such areas as national security. Where there were competing requests for extradition, priority should go to the court. The representative of Croatia said that exceptions to the requirement to cooperate with the international criminal court should not be found in national law. National law should only guide the form of cooperation.

The representative of Austria opposed the development of elaborate written rules for cooperation, but termed judicial assistance a sine qua non of the proposed international criminal court. The international court should look to national law for rules governing cooperation, arrest and detention, the use of evidence and other procedures, but the international court should be heard on those issues. Concurrent obligations between extradition treaties and the international court statute would be difficult. If the international court and a State (a State party or non-State party) both made extradition requests, the national jurisdiction holding the accused person should generally give the international court priority over the request of the third State.

The representative of the United States said that the court needed a sound framework for obtaining the cooperation of States. It was doubtful that an exhaustive regulation was realistic, since no international instrument currently had such an exhaustive list. Instead, it was essential to set out provisions that would form a framework for meaningful cooperation between the

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court and the States. National law should not be a primary source for defining State obligation to cooperate with the court. Complete deference to national law by the court was not appropriate and would create a maze that would make the court's functioning difficult.

The best format, she continued, would be for the statute to contain a general obligation to cooperate and to set out any exceptions, which could include cases when the principle of complementarity needed to be deferred to. She strongly questioned the appropriateness of granting any exceptions to extradition requests by the court on the basis that some States could not extradite their own nationals. Also, the issue of dual criminality should not serve to limit cooperation with the court.

On the other hand, several delegations urged that the international court generally defer to national courts, consistent with the principle of complementarity (by which national courts would generally be given the opportunity to prosecute crimes, with the international court taking actions should they fail to do so).

The representative of India for example, said that national laws and procedures should be taken into account in the development of rules of procedure and of evidence in the international court. Judicial cooperation between States parties and the court should be governed by national legislation. In cases of conflict, national law should prevail.

Venezuela's representative said that the statute should contain general guidelines -- not exhaustive lists -- concerning cooperation between national courts and the international court. Cooperation should be subjected to the implementation of national legislation. The statute should contain a general provision mandating cooperation with the court. All exceptions of the obligation to cooperate should be set out in the statute.

The representative of Malaysia said that the statute should not contain an exhaustive regime of cooperation. Existing regimes of cooperation and assistance should be utilized. That existing framework could provide the court with both flexibility and predictability, and could ensure the wide acceptance of the statute. States obligations to cooperate with the international court should be completely in line with national laws. That would reinforce the principle of complementarity, by which national courts had priority in prosecuting serious crimes.

The representatives of the United Kingdom and of Israel said that in undertaking prosecutions, the international court should protect the rights of individuals and adhere to the principle of complementarity. The United Kingdom said that the statute should not read that States parties "shall" give priority to extradition requests from the international court, over competing requests for extradition from other States. Israel said that established extradition law and practice should serve as a framework to guide the

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development of the international court in that area, he said. The court statute should draw on extradition agreements, such as the European Convention on Extradition, which provides that arrest and transfer should be in accordance with the due process requirements of the State from which extradition is requested.

The representative of China said that States parties should make the utmost effort to cooperate with the international court, but exceptions to the obligation of cooperation should be made for: accused persons from countries not party to the statue; in situations in which the international court would violate sovereignty and public interest; the non-extradition of nationals of the State in question; and the non-extradition of political criminals.

The representative of Finland said that it was unrealistic to draft an exhaustive and autonomous set of rules for the court. Instead, basic rules or a framework should be included in the statute. The draft statute should allow the court to work on its own if cooperation was not coming from the States parties. Exceptions to requests for cooperation from the court should be very restrictive. The normal grounds for such exception, as contained in many existing treaties, should not be included as reasons for exceptions in the statute. Those included dual criminality and the extraditing of nationals of requested States.

Addressing other matters, the representative of Japan said that it was important to list the requests which the court might make of Member States. Examples of such requests should be listed in the statute. Lack of dual criminality (the fact of the receiving State not having the crime listed as a crime in its national codes) should not be used as reason for not extraditing an accused. If a State had any grounds under which it would refuse an extradition request, it should notify the court of that in advance, by filing such notification at the time that Member State joined the statute.

The representative of Indonesia said that the statute of the court should include the rules of procedures of the court, which should be adopted by the States parties. The statute should also state the procedure for indictment and spell out the length of detention for the accused.

The representative of France said that as far as possible, States should act within their existing constitutional framework in the matter of cooperation with the court. The statute should set out in detail the requests that the court would make of States and to which they should respond positively. Where States failed to meet their obligations to cooperate, a formulation should be incorporated into the draft to enable the court to overcome such a situation.

The representative of Ireland said that in pursuing a practical approach, the Preparatory Committee should endeavour to keep within the parameters of what was practical. Judicial procedure would always remain

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within the ambit of national jurisdictions. The international criminal court should take note of the European Convention on Extradition, which left procedural matters to the discretion of national jurisdictions.

The representative of Italy said that the statute should set out clear rules for cooperation. Cooperation was obligatory for States parties to the court. Questions of the nationality of accused persons, or of the political nature of crimes, should not be used as an exception to obligatory cooperation with the court.

The representative of Greece said that States might not be obliged to extradite their nationals, but should not be able to refuse to cooperate on the principle of "national interest" -- that would violate the whole concept of the court.

When it meets again at 3 p.m. today, the Preparatory Committee will continue its discussion of cooperation and judicial assistance.

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