Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.92 Provisional arrest/Arrestation provisoire

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

The State ◽

Other Information ◽

This chapter comments on Article 92 of the Rome Statute of the International Criminal Court. Article 92 grants the Court authority, ‘[i]n urgent cases’, to request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91. When a request is made to a State in accordance with article 92, the Registrar ‘invites’ the State to inform him or her of the arrest, and ‘to provide, inter alia’, personal details and other information concerning the arrest, including a confirmation of ‘the information given to the arrested person in respect of his or her rights’.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.91 Contents of request for arrest and surrender/Contenu de la demande d’arrestation et de remise

10.1093/law/9780198739777.003.0096 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

The State ◽

State Party ◽

This chapter comments on Article of the Rome Statute of the International Criminal Court. Article 91 deals with the content of a request to a State for arrest or surrender of a person wanted by the Court. It consists of four paragraphs, of which the first addresses the contents of the request and any supporting documentation. The two subsequent paragraph distinguish between a request concerning a person for whom a warrant of arrest has been issued (paragraph 2) and one for a person who has already been convicted (paragraph 3). Paragraph 4 provides for consultations between the Court and the State Party.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.101 Rule of speciality/Règle de la spécialité

10.1093/law/9780198739777.003.0106 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

The State ◽

Customary Law ◽

State Sovereignty ◽

The Individual ◽

This chapter comments on Article of the Rome Statute of the International Criminal Court. Article 101 sets out the principle of speciality, which is part of the customary law governing extradition between States. The rationale for the principle of speciality ‘is to protect State sovereignty’. For this reason, the rule is limited to the scenarios in which the person is arrested and is surrendered as a result of a request submitted by the Court to the State. It is inapplicable if the suspect has appeared voluntarily. The State that surrenders the individual to the Court may be asked to waive the rule of speciality if the Court seeks to proceed with respect to crimes that were not part of the original request for surrender.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.96 Contents of request for other forms of assistance under article 93/Contenu d’une demande portant sur d’autres formes de coopération visées à l’article 93

10.1093/law/9780198739777.003.0101 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Legal Assistance ◽

Formal Mechanism ◽

This chapter comments on Article 96 of the Rome Statute of the International Criminal Court. Article 96 governs requests for legal assistance in accordance with article 93. It is broadly similar to article 91, which applies to the content of requests for arrest and surrender. Many of the same issues apply to both forms of request. It must also be read in conjunction with article 99, which applies to the execution of requests under articles 93 and 96. Formalities are established for requests for cooperation, in terms of the channel of communication and the language. Set out in article 87(1)(a), they apply to requests for legal assistance, including those contemplated by article 93. In urgent cases, a request may be made by any medium capable of delivering a written record, but it must subsequently be confirmed according to the formal mechanism.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.93 Other forms of cooperation/Autres formes de coopération

10.1093/law/9780198739777.003.0098 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Legal Assistance ◽

Expert Opinions ◽

Judicial Intervention ◽

This chapter comments on Article 93 of the Rome Statute of the International Criminal Court. Article 93 requires States Parties to comply with requests by the Court to provide other forms of mutual legal assistance. The assistance is provided in accordance with national law. Where national law requires judicial intervention for its implementation, ‘domestic judicial authorities shall be engaged in the ordinary manner and in accordance with relevant procedures available under national law’. The forms of legal assistance include the identification and whereabouts of persons or the location of items; the taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court; the questioning of any person being investigated or prosecuted; and the service of documents, including judicial documents.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.86 General obligation to cooperate/Obligation générale de coopérer

10.1093/law/9780198739777.003.0091 ◽

2016 ◽

Cited By ~ 1

Author(s):

Schabas William A

Keyword(s):

Security Council ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Bilateral Agreements ◽

General Obligation ◽

This chapter comments on Article 86 of the Rome Statute of the International Criminal Court. Article 86 states the general obligation to ‘cooperate fully’ with the Court. This obligation to cooperate applies only to States Parties. If obligations to cooperate with the Court exist for non-party States, their source must be found elsewhere, for example in bilateral agreements or in Security Council resolutions. Indeed, Security Council resolutions have both confirmed that non-party States do not have any obligations under the Rome Statute and at the same time they have imposed obligations of cooperation on certain non-party States.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.102 Use of terms/Emploi des termes

10.1093/law/9780198739777.003.0107 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Legal Systems ◽

This chapter comments on Article 102 of the Rome Statute of the International Criminal Court. ‘Extradition’ is a concept that raises difficult problems in national legal systems. For example, many States prohibit the extradition of their nationals. Article 102 attempts to address potential difficulties in this area by specifying that transfer of a person by a State to the Court is not ‘extradition’ but rather ‘surrender’. The drafters of the Rome Statute chose to use the term ‘surrender’ to govern the procedure of transfer of a suspect from a State to the Court so as to emphasize the sui generis nature of the process.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.97 Consultations

10.1093/law/9780198739777.003.0102 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Insufficient Information ◽

Treaty Obligation ◽

This chapter comments on Article 97 of the Rome Statute of the International Criminal Court. Article 97 identifies the types of difficulties that may arise with requests for cooperation that require consultation with the Court. The first is insufficient information to execute the request. The second is difficulty in locating the person, a matter relevant to a request for surrender. But a request to locate a person might also concern questioning of an individual or a suspect, and even service of a summons to appear. Finally, article 97 contemplates the possibility that execution of the request might require the requested State to breach a pre-existing treaty obligation. Use of the term ‘pre-existing’ in article 97(c) has nourished arguments to the effect that only treaty obligations adopted prior to entry into force of the Rome Statute may be invoked to resist requests for cooperation.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.87 Requests for cooperation: general provisions/Demandes de coopération: dispositions générales

10.1093/law/9780198739777.003.0092 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

General Rules ◽

This chapter comments on Article 87 of the Rome Statute of the International Criminal Court. Article 87 affirms the authority of the Court to make requests to States Parties for cooperation, and proposes a mechanism for non-compliance. It deals with the modalities of such requests and contemplates their application to non-party States as well as States Parties to the Rome Statute. Cooperation can be divided into two broad categories: surrender of suspects and ‘other forms of cooperation’ involving such measures as taking of evidence, questioning, and examination of places or sites. Article 87 establishes general rules applicable to requests for both categories of cooperation.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.99 Execution of requests under articles 93 and 96/Exécution des demandes présentées au titre des articles 93 et 96

10.1093/law/9780198739777.003.0104 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

National Security ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

State Party ◽

Special Rules ◽

This chapter comments on Article 99 of the Rome Statute of the International Criminal Court. Article 99 completes articles 93 and 96 by providing for the execution of requests for assistance subject to those provisions. Paragraph 1 confirms that this will take place in accordance with applicable national law. Paragraph 2 states that when a request is urgent, the response should be sent urgently. Paragraph 3 concerns the language and form of the response. Paragraph 4 enables the Prosecutor to execute a request directly on the territory of a State Party. Paragraph confirms the application of special rules concerning national security in such situations.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.95 Postponement of execution of a request in respect of an admissibility challenge/Sursis à exécution d’une demande en raison d’une exception d’irrecevabilité

10.1093/law/9780198739777.003.0100 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Prior Authorization ◽

Judicial Assistance ◽

The Postponement

This chapter comments on Article 95 of the Rome Statute of the International Criminal Court. Article 95 is part of an ensemble of provisions addressing the modalities of compliance with a request from the Court. It concerns challenges to admissibility, and allows a State to postpone compliance pending resolution of an admissibility challenge. The operation of article 95 is not dependent upon an initial determination by the Court. It is a prerogative that a State may exercise provided the necessary pre-requisites are in place. Thus, ‘the postponement of the execution of a surrender request while an admissibility challenge is pending falls within the prerogatives of the requested State and does not require a Chamber's prior authorization’.