PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT DISCUSSES DRAFT ARTICLES ON ARREST, PRE-TRIAL DETENTION
Press Release
L/2780
PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT DISCUSSES DRAFT ARTICLES ON ARREST, PRE-TRIAL DETENTION
19960409 The statute of an international criminal court should set out clear processes for the "provisional arrest" of persons accused of serious international crimes, the Preparatory Committee on the establishment of the court was told yesterday afternoon, 8 April.Presenting a paper on draft statute articles concerning arrest, pre- trial detention or release, cooperation and judicial assistance and the transfer of accused persons to the court, the representative of Canada said that the court prosecutor should transmit a warrant to the requested State along with practical information regarding the person's identity and location. If the arrest took place before indictment, then the prosecutor should transmit the indictment to the requested State as soon as possible. States receiving a warrant or pre-indictment should act on the warrant or initiate equivalent national procedures. The authorities of custody States should respect the rights of accused persons and determine the issue of "interim release" pending indictment.
Continuing, she said that when a person was surrendered to the jurisdiction of the court, the court itself could make determinations with regard to interim release pending trial. States should be obliged to surrender individuals -- either by transfer or extradition -- upon request by the international court. States deciding between the competing requests of national courts and the international court should take into account the relative seriousness of offenses, the relative strength of cases, the time and place of the commission of the offense, the respective dates of the requests, the nationality of the person sought, and the ordinary place of residence of the person concerned. In situations where the requested State was a party to the court, it should give priority to the court's request for extradition over those of other States.
The representative of the United Kingdom said that national courts should be able to control release from detention. Certain traditional exceptions in extraditions -- States own nationals and political defences, for example, were out of date and had no place in the court statute. The question of competing national obligations would arise when it came to apprehension and
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surrender. The prosecutor of the international court should have very close relationship with authorities at the national level.
The representative of France said that there should be a balance between the court's ability to carry out its mandate and the need for protecting individuals from abuses or errors. He preferred that provisional arrests pending transfer be limited to 40 days, as opposed to the 90 days proposed in the statute. When it came to applying the court statute on arrest and surrender, States should apply their laws within the framework of their constitutions. In France, for example, judges would have to verify the procedural legality of extradition requests. Two things might prohibit transfer or transfer; a manifest error on the part of the court and a statute of limitations in indictments for war crimes.
The representative of the United States said that the draft seemed to provide for "provisional arrest" warrants and for a post-indictment warrant. A degree of evidence and documentation would need to be provided along with requests for transfer or extradition. The statute should allow for an urgent request to be made with one level of evidentiary support, with a second level required for the more formal request that must follow. Countries should advise the court in advance what their evidentiary requirements would be. Accused persons had a basic right to be advised why they were being pursued by the court. States should be able to waive those requirements, if that was allowed under their national law.
The evidentiary requirements of requested States should be no more stringent than they would be for their partners in extradition treaties, she continued. If persons other than the accused -- such as witnesses -- were required by the court, it should have flexibility to receive testimony from outside its seat. She had doubts about the willingness of United States courts to agree to the arrest and transfer of non-accused persons. Detention prior to surrender -- including bail and provisional release -- should be determined by national authorities, not the international court, as provided in the draft.
The representative of Thailand said that a request for extradition should be in written form and should be transmitted through diplomatic channels. Such a request should include the description of the accused, and brief description of the offence. Also, the accused must be sent before a proper court as soon as possible. Where he was not arraigned within a certain time period, he should be set free.
The representative of Australia said that pre-indictment arrest must be undertaken on the basis that a formal request for extradition would follow. An appropriate limit should be set with regard to how long the person could be held. Other options should be explored, instead of ordering the arrest of a witness who did not want to appear before the court to give evidence at the court's seat. A video link was one option, for example.
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The representative of Austria said that States should be obliged to comply with requests for extradition, provided such requests were made formally. Requests for provisional arrest should be accompanied by an arrest warrant and States parties should comply with such requests. Where a provisional request for arrest was not followed by a formal request for the arrest from the court within a certain period of time, the detainee should be set free. Also, pre-surrender detention should be regulated by national law, but national authorities should only play a very limited role. Officers of the court should come to the State where the suspect was being held to transfer such an accused person to the State where trial would occur.
The representative of India said that constitutional prescriptions of the State where the offender was being held became very relevant when requests for transfer were made, having to do with the fundamental rights of the accused. The reason for requesting an offender's surrender must be specific and there should be a clear identification of the offender. It might not be practical to arrest persons who refuse to travel to the seat of the court to give evidence.
The representative of Sweden said that he agreed with Austria that the court should develop a transfer system that allowed for as few exceptions as possible. He would not support any provision allowing for the arrest of witnesses to force them to appear before the court. He favoured a flexible system of legal assistance, such as the use of testimony gathered by video or telephone link.
The representative of Finland said that the court should issue warrants for anyone that it wanted to arrest. As a practical measure, the international criminal court should have the freedom to use the method it considered appropriate -- whether diplomatic channels, or directly to legal jurisdictions -- when it came to issuing warrants. Provisions for the arrest of persons other than the accused were not needed. A person might be compelled to appear before the international criminal court, but only in exceptional cases. The international court should not be able to order the physical transfer of anyone. It should only use indirect compulsion, such as the threat of fines or imprisonment. A "rule of specialty" -- which provided that persons transferred to the court could only be prosecuted for the crimes for which they were transferred -- was essential.
The representative of Ireland said that under his country's national law, persons must be indicted to be placed under arrest or extradited. In his country, persons accused of serious crimes must be able to post bail, as they were not presumed to have committed any crime.
The representative of Japan said that the international court would not have the characteristics of a State. Existing extradition regimes were based on the presumption that the country requesting the extradition was the country in which the crime had taken place. But the international criminal court did
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not have a territory nor a police force. The court would require the cooperation of States and must acknowledge the fulfilment of the constitutional requirements of those States. The uniqueness of the court meant that existing systems of cooperation could not be automatically applied.
The representative of Slovenia said that the statute of the Tribunal for the former Yugoslavia had raised the question of jurisdiction. It was a little idealistic to imagine that States with a constitutional proscription against extradition would amend their constitutions to accommodate the court. Perhaps States should consider the international court a unique international institution.
The representative of Italy said that his Government could never accept arrest prior to indictment. At least a provisional arrest warrant would be required.
The representatives of Guatemala, Ireland and Australia also spoke on apprehension and surrender.
Also this afternoon, the Preparatory Committee continued its discussion of general cooperation and judicial assistance with the proposed international criminal court.
The representative of the Republic of Korea said that the court statute should contain clear and comprehensive overall provisions on State cooperation. He agreed with Switzerland that the court statute should establish broad principles, with national laws elaborating procedures to be followed in service to those principles. Exceptions to the obligation to surrender should be minimal, and set down in the statute. Traditional reasons for refusing extradition, such as the nationality of the accused and the political nature of offenses, should be inadmissible to the court.
The representative of New Zealand said that the statute should provide that transfer of a defendant to the court would satisfy the general principle of extradition or prosecution with regards to other States that might be seeking the extradition of the suspect. The statute should require all States parties to bring all suspects to trial. Exceptions to the requirement to cooperate with the court should be set out in the statute and should not include nationality. There should also be a mechanism to ensure that the court could overcome national procedures that could result in delays in its functioning.
The representative of Switzerland said that the statute should set out the general rules on cooperation with the court. National law, in some cases, could become applicable, but should not become the source of law for the court. The obligations of States to cooperate with the court should derive from the statute and that should be formulated precisely. He did not agree
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that each State, upon becoming a member, should set out by itself how it would cooperate with the court.
The representative of Egypt said that the statute should include the general principles that would be applicable with regard to cooperation with the court. National legislation would then have to conform to those principles and to develop the specific modalities and rules to be applied. If the court was going to deal with treaty crimes, the issue of seizure of assets would arise.
The representative of Argentina suggested that the statute should state clearly the general obligation of States to provide cooperation to the court. Where the court had jurisdiction over those crimes, there should be no need for any further consent. The objective in setting up the court would be defeated if States were able to set forth reservations to cooperating with it. The only exception to such cooperation with the court should be based on the criteria of admissibility. If a State agreed that the crime met the admissibility criteria, then cooperation should be mandatory.
The representative of Canada said that a clear statement was needed in the statute regarding the obligation of States to cooperate. There should also be a clear statement in the statute regarding the principles for cooperation with States. The grounds for refusal to cooperate with the court should be stated, but there should be a limited number of provisions for refusal. It would not be appropriate to grant exception based on a State's constitutional obligation not to surrender its nationals.
When it meets again at 10 a.m. Tuesday, 9 April, the Preparatory Committee will continue its discussion of apprehension and surrender.
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