INTERNATIONAL COURT STATUTE MUST DETAIL ASSISTANCE REQUIRED OF STATES PARTIES, SAY SPEAKERS IN PREPARATORY COMMITTEE FOR ESTABLISHMENT OF CRIMINAL COURT

9 April 1996

Press Release
L/2781

INTERNATIONAL COURT STATUTE MUST DETAIL ASSISTANCE REQUIRED OF STATES PARTIES, SAY SPEAKERS IN PREPARATORY COMMITTEE FOR ESTABLISHMENT OF CRIMINAL COURT

19960409 Others Argue for General Provisions, Rather Than Exhaustive List; Powers of Prosecutor, Exceptions to Judicial Assistance, Also Discussed

The statute of the proposed international criminal court should include a detailed listing of the types of judicial assistance that States parties would be expected to render to the court, the Preparatory Committee on the establishment of the court was told this morning, as it continued its discussion of cooperation between the court and national jurisdictions.

Many speakers this morning said it was important to include such a list, so that States would know what their obligations were under the statute. The representatives of Singapore, Canada, Indonesia, Austria, and Finland made general statements in support of such a listing.

The representative of Singapore said that listing the assistance in the statute was necessary since States might need to enact domestic legislation in order to make such assistance possible. The representative of Canada said that it was important to outline a list of the types of assistance so that States would know that types of obligations that would exist. Assistance to the court should be mutual in nature. The term "judicial" assistance contained in the draft statute should, therefore, be changed to "mutual assistance".

Indonesia's representative said that activities such as search, seizure and arrest should be strictly the prerogative of national authorities. The representative of Austria said that his country could support a list of the types of assistance that would be required of States, but States should not have the option to pick which ones to accept and which ones to reject. The representative of Finland said that in addition to an enumeration of the forms of judicial assistance, reference could also be made in the statute to additional forms of assistance that States could provide if possible.

Arguing against an exhaustive list of types of assistance the Republic of Korea said that it would be difficult to establish a comprehensive judicial assistance regime in the statute. Minimum standards should be established in an exemplary, but not exhaustive manner, in the statute. Search, seizure, surrender, and interviews of witnesses should take place with the consent of the States concerned.

The representative of France said that the international court would be requesting judicial assistance of a different sort from that which States provided to each other. The statute should not elaborate a list of the types of judicial assistance that the court would require. There should be room to manoeuvre. Germany's representative said that the statute should establish a framework of general provisions concerning the obligation to provide judicial assistance, as had been done in the case of the Tribunal for the former Yugoslavia. The representative of Australia said that the list should be a general guide. It need not be exhaustive.

Concerning powers of the prosecutor for the proposed court, speakers were nearly unanimous in their opposition to the granting of the power to the prosecutor to initiate on-site investigation without the participation of relevant national authorities.

The representative of Germany said that the prosecutor should not be able to carry out investigations on his own initiative. Investigations should only be carried out in cooperation with national authorities. The representative of Canada said that it would be difficult to allow the initiation of such investigation without the consent of the State. That area should come under request for assistance by the court and there should be a strong obligation on States to provide such assistance when requested.

The representative of the United Kingdom said that the prosecutor should not act on his own initiative within the territory of States. His investigations should be carried out by national executive or judicial authorities operating under national law. Under some circumstances, such as when persons were willing to volunteer evidence, the use of national authorities might not be required. The international court should also make provisions for situations in which national authorities were no longer functioning.

France's representative said that the court prosecutor should not be able to unilaterally carry out on-site investigations in national territory. The statute should provide that national authorities should cooperate, and that it should be those authorities which decided whether or not the prosecutor, or the authorities themselves, would carry out the investigation. If national authorities refused to cooperate, the court should have recourse to the Security Council.

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The representative of China had doubts as to the right of the prosecutor to carry out investigations on the spot. The willingness of States to render judicial assistance should not be tantamount to granting such authority to the prosecutor. The provision on that matter went beyond international law. Investigation by the prosecutor should be subject to the specific consent of the State concerned. Otherwise, it should be carried out under exceptional circumstances involving a decision by the Security Council.

The representative of Sweden said that the prosecutor should only be able to carry out on-site through the national authorities with their content. Denmark's representative agreed, stating that procedural safeguards of the rights of the accused should be left to national authorities. National authorities, however, should be left to decide "how" to comply, not "whether" to comply.

The representative of Australia said that national authorities should play a role in carrying out investigations at the request of the court's prosecutor, particularly as regards such compulsory requirements as the issuance of search warrants. But the prosecutor would have to have his own access to the territory concerned in situations in which national authorities have ceased functioning properly. The representative of Israel said that on- site investigation should be subject to the consent of the national State. If a request was refused, the State in question could be asked to carry out the investigation under the standards of the court. The representative of Finland said that where state apparatus had collapsed, the prosecutor could carry out on-site investigation, but that should be under the supervision of some authority.

The United States representative said that his country would not be able to allow the prosecutor to carry out on-site investigations on his own. However, the prosecutor should be able to carry out investigations with the consent of the State in question. A provision should be included in the statute stating that, wherever possible, States should permit the prosecutor to be present during execution of request and also that States should execute such request promptly.

Regarding who could make requests on behalf of the court for national judicial assistance, Canada said that requests for assistance from the court should be from the prosecutor. It was essential that assistance be provided expeditiously. The representative of Austria said that during the investigation phase, it should be the prosecutor's role to request assistance. During trial, however, that power should shift to the court itself through the trial chamber. States parties should designate competent authority to receive requests. South Africa's representative recommended that request should be transmitted through the prosecutor.

With regard to the sharing of evidence, the representative of Canada said that there should be a provision which allowed the court to share

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evidence and information it had gathered with States. China's representative said that if assistance provided by the State was to be used for other purposes, such use should be subject to the consent of the State.

The representative of the United States said the proposed prosecutor should be authorized to enter into ad hoc arrangements with non-parties, which would allow for exchange of information when necessary.

Several delegations also commented on the means by which court requests for national judicial assistance could be made. The representative of Indonesia said that requests for judicial assistance should be done through diplomatic channels. Denmark's representative said that requests for judicial assistance should be made by whatever communications technologies were available. They need not be made through diplomatic channels. The representative of Sweden said that requests for judicial assistance should be communicated to the central authority of a State through appropriate channels or through any means that would leave a written record. Austria's representative said that it was important that new technologies be used for transmitting requests for assistance.

The representative of France said that a "fast-track" request via new communications technology was acceptable, but it should be followed up by formal documentation. The United Kingdom's representative said that there was no reason to limit the form in which requests were made. It would assist the international court if national authorities could designate a person to whom requests could be directed.

The representative of Israel said that the means of communication should be as flexible as possible. The best mode would be that States parties should advise the court of which mode of communication they preferred. The representative of South Africa said that State parties should designate an authority to deal with requests and the request should be such as to leave a written record. He preferred that requests be through diplomatic channels. Other channels could be used, but confirmation should be made forthwith through diplomatic channels.

In discussion on the rule of specialty (which provides that persons transferred to the Court should not be subject to prosecution or punishment for any crime other than that for which the person was transferred) the representative of Brunei said the rule was sound, but should be more flexible. There may be good reasons for the prosecution to shift a charge from the crime for which the person was transferred to another and the statute should provide for that possibility. France's representative said that he saw no point in elaborating a rule of specialty. The Republic of Korea said that the rule of specialty should be maintained, as it was a fundamental principle.

Regarding judicial reciprocity (the principle by which the judicial systems of two States treat one another in an identical manner), the Republic

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of Korea's representative said that the rule should be excluded from the statute. Under the principle of complementarity, the international court could apply its jurisdiction only in the absence of national jurisdiction. The representative of Indonesia said that States consenting to the jurisdiction of the court should be obliged to comply with its requests. The rule of reciprocity could be taken into consideration at the request of national authorities.

Regarding the circumstances under which States could refuse a request for judicial assistance by the court, the representative of the United Kingdom said that requests from the international court for assistance should contain information regarding the offense, the reasons for assistance, the identity and whereabouts of witnesses and of evidence.

The representative of Canada said that the only limitation to provision of assistance to the court should be where investigation by the national judicial system into the same matter was ongoing. Such exception must be very limited. The representative of Sweden said that States should be obliged to provide judicial assistance on request unless the request was unfounded. The representative of Germany said that all States parties should be obliged to cooperate with the court. Opportunities to refuse to provide judicial assistance should be kept to a minimum.

The representative of Austria argued against having a wide range of exceptions to providing assistance to the court, as that did not correspond to the international concerns that were the propelling force for establishing the court. The duty of assistance must directly result from the statute itself and not be left to any other agreement between States and the court. The representative of the Republic of Korea said that States parties should enjoy discretionary power to refuse court requests for judicial assistance, but the grounds for that refusal should be articulated in the statute and kept to a minimum. The representative of Israel said that one limitation to providing judicial assistance should be in cases concerning the essential national security interest of the State. The representative of South Africa proposed that the obligation of States to cooperate with the court should be as wide as possible, while the exceptions should be limited.

On other matters regarding judicial assistance and cooperation, the representative of Singapore said that the court would depend to a substantial extent on the cooperation of States. The legal framework for such cooperation should start with the existing arrangements between States governing extradition. A warrant for arrest issued by the court must accompany a request from the court for the arrest of a suspect. Such a warrant should follow the format used between States. Pre-surrender detention should be regulated by applicable national laws. The representative of Guatemala said that the conflict between contractual obligations that could arise when a State was a party to the statute also existed in bilateral relationships with other States.

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

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