Co-operation with the ICC: Arrests and Surrender, the Gathering of Evidence and Asset Forfeiture
Kimberly Prost
Section: The International Criminal Court
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Id. vLex: VLEX-43094655
1 Introduction 2 Co-operation under the ICC Statute 2.1 General principles 2.2 What happens if a State fails to co-operate with the Court? 2.3 How are requests transmitted and what are the procedures surrounding them? 2.4 Are there any confidentiality restrictions on requests? 2.5 What are the arrangements regarding the costs of executing requests from the court? 3 The Procedure for Arrest and Surrender of ICC Suspects 3.1 Are there grounds on which a request may be refused? 3.2 If execution of a request would be in breach of an international obligation, should it proceed? 3.3 Do the obligations regarding arrest and surrender apply to domestic government officials and Heads of State or Government? 3.4 Should the request be executed even if there is a challenge to the admissibility of the case before the ICC or to the jurisdiction of the Court? 3.5 Competing requests for surrender and extradition 3.5.1 How does a State decide on competing requests? 3.5.2 What if the request is for the same person and same conduct but from a non-State Party? 3.5.3 What if there is an extradition request for the same person but with regard to different conduct? 3.6 What are the procedures to be followed on receipt of a request from the Court for arrest and surrender? 3.7 The procedure after arrest 3.7.1 Is there any provision for bail for a person arrested in response to an ICC request? 3.7.2 What is the relevance of Article 102 of the Statute, which defines 'surrender'and 'extradition'? 3.8 The arrest and surrender regime and 'double jeopardy' 3.9 The procedure after execution of the request 3.9.1 What if the person to be surrendered is being prosecuted domestically for something else or serving a sentence of imprisonment? 3.9.2 Does the Statute address the issue of persons in transit to the ICC? 3.9.3 Is there a rule of 'speciality' that applies where a person is surrendered to the ICC? 4. Providing Other Assistance to the Court 4.1 4.2 What types of assistance are contemplated? 4.3 What are the applicable procedures for rendering the assistance? 4.4 Are there any special provisions as to how a request should be executed? 4.5 What will the request for assistance from the Court contain? 4.6 Can a request for assistance from the Court be refused? 4.6.1 Where the request for assistance is prohibited by domestic law 4.6.2 Where the request for assistance conflicts with a fundamental principle of law of general application 4.6.3 Where the request for assistance concerns the national security of the requested State 4.7 How are competing requests for other forms of co-operation to be dealt with? 4.8 What if the information or evidence sought is within the control of another State? 4.9 What happens if execution of the request would interfere with a domestic investigation or prosecution? 4.10 What if the admissibility of the case or the jurisdiction of the Court is challenged? 5 Freezing and Forfeiture of Assets 5.1 What kinds of requests will the Court make regarding assets? 5.2 Does the Rome Statute address the freezing and forfeiture of the instrumentalities of crime? 6 Investigative Assistance by the Court
Co-operation with the ICC: Arrests and Surrender, the Gathering of Evidence and Asset Forfeiture
1 Introduction The International Criminal Court (ICC) will look to States for assistance in investigating cases and gathering evidence. This co-operation includes arrest and surrender of suspects, and State Parties are obligated to co-operate fully with the Court in investigations and prosecutions of crimes within its jurisdiction. Furthermore, under the ICC Statute States are obligated to respond to requests for 'other' forms of co-operation - in essence, the types of assistance with evidence gathering analogous to mutual legal assistance in criminal matters in State to State practice. In this chapter, we consider the ICC provisions relating to the arrest and surrender of suspects, other forms of co-operatation to facilitate the gathering of evidence, and the tracing, freezing and forfeiture of assets upon conviction of an accused. 2 Co-operation under the ICC Statute 2.1 General principles As a general principle the scheme for the arrest and surrender of suspects and the gathering of evidence under the ICC Statute is a co-operative one, involving the active participation of State Parties and, in some cases, non-State Parties and international organisations. The co-operation regime is mostly found in Part 9 of the Statute entitled 'International Co-operation and Judicial Assistance', though there are related provisions in Articles 56, 57 and 59 of the Statute. Part 9 deals with two subjects: (a) arrest and surrender and (b) other forms of co-operation. It also contains general provisions of relevance to both these forms of co-operation. This regime is modelled on State to State schemes for international co-operation in criminal matters, but there are important differences. These include no grounds of refusal on the part of a State with respect to requests for arrest and surrender by the ICC and very limited grounds of refusal relating to other forms of co-operation. State Parties to the ICC Statute thus have an obligation to co-operate and to execute requests for arrest and surrender or other forms of co-operation presented by the Court. This is clearly reflected in three Articles in Part 9. Article 86 imposes a general obligation on States to co-operate fully with the Court in the investigation and prosecution of the crimes within its jurisdiction. Articles 89 and 93 mandate that States must comply with requests for arrest and surrender and other forms of co-operation respectively. Under Article 87 the Court is empowered to obtain assistance from a non-State Party on the basis of an arrangement or agreement or on any other appropriate footing. Similarly the Court may seek information or documents or other forms of assistance from any intergovernmental organisation. 2.2 What happens if a State fails to co-operate with the Court? The same Article 87 sets out the procedure in situations where a State Party fails to comply with a request from the Court. In such instances the Court can make a finding of non-co-operation and refer the matter to the Assembly of States Parties or, if the case involved was referred by the Security Council, to the Council. Similar referral powers are granted with respect to a non-State Party that has entered into an ad hoc arrangement or agreement...
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