Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.98 Cooperation with respect to waiver of immunity and consent to surrender/Coopération en relation avec la renonciation à l’immunité et le consentement à la remise

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Legal Norms ◽

Military Activity ◽

This chapter comments on Article 98 of the Rome Statute of the International Criminal Court. Article 98 emerged in the context of the debate on grounds to refuse surrender and assistance. The Rome Statute has the potential to conflict with other obligations of States under international law, whether pursuant to customary international law or treaty. In particular, they are required to respect the immunities of diplomats and international officials. States that allow military activity by foreign troops on their territory often have agreements, known as ‘status of forces agreements’ (SOFAs). Article 98 governs these conflicts by, in effect, making obligations of arrest and surrender under the Statute subordinate to other legal norms.

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 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.27 Irrelevance of official capacity/Défaut de pertinence de la qualité officielle

10.1093/law/9780198739777.003.0032 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

International Criminal Law ◽

Head Of State

This chapter comments on Article 27 of the Rome Statute of the International Criminal Court. Article 27 consists two paragraphs that are often confounded but fulfil different functions. Paragraph 1 denies a defence of official capacity, i.e. official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall not exempt a person from criminal responsibility under the Statute. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.

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

10.1093/law/9780198739777.003.0097 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

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.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 7 Penalties: Les Peines, Art.80 Non-prejudice to national application of penalties and national laws/Le Statut, l’application des peines par les états et le droit national

10.1093/law/9780198739777.003.0085 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

International Law ◽

Death Penalty ◽

Capital Punishment ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Final Draft

This chapter comments on Article 80 of the Rome Statute of the International Criminal Court. Article 80 deals with the application by States of penalties prescribed by their national law. The provision was introduced in the final draft, submitted to the Conference early in the day on 17 July 1998, as part of a compromise aimed at calming the objections of a relatively small number of States that had unsuccessfully campaigned to include capital punishment within the range of available penalties in the Rome Statue. Some of these States were concerned that the exclusion of the death penalty would be interpreted as evidence of a growing abolitionist trend internationally and possibly of an emerging norm of customary international law.

Transformation of Customary Law Through ICC Practice

AJIL Unbound ◽

10.1017/aju.2018.55 ◽

2018 ◽

Vol 112 ◽

pp. 182-186 ◽

Cited By ~ 2

Author(s):

Fausto Pocar

Keyword(s):

International Law ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

Criminal Court ◽

Customary Law ◽

Customary International Law

Article 21 of the Rome Statute, in defining the applicable sources of law for the International Criminal Court (ICC), breaks with the practice of the ad hoc tribunals by treating customary international law as only a secondary authority. Nonetheless, customary international law still has an acknowledged role in ICC jurisprudence in filling lacunae in the Rome Statute and aiding in its interpretation. One can also predict other instances in which the application of customary international law will be required. It remains to be seen, however, whether the ICC's use of customary law will lead to that law's further fragmentation or whether that use will instead modify customary law to reflect the ICC Statute.

Leena Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court; Noora Arajärvi, The Changing Nature of Customary International Law: Methods of Interpreting the Concept of Custom in International Criminal Tribunals

Journal of International Criminal Justice ◽

10.1093/jicj/mqx020 ◽

2017 ◽

Vol 15 (2) ◽

pp. 393-395

Author(s):

Rustam B. Atadjanov

Keyword(s):

International Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

International Criminal Tribunals

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.