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STATE COOPERATION WITH INTERNATIONAL CRIMINAL TRIBUNALS

STATE COOPERATION WITH INTERNATIONAL CRIMINAL TRIBUNALS. Dr . Maja Munivrana Vajda Faculty of Law in Zagreb, 2013/2014. Art . 29. ICTY Statute: Co - operation and judicial assistance.

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STATE COOPERATION WITH INTERNATIONAL CRIMINAL TRIBUNALS

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  1. STATE COOPERATION WITH INTERNATIONAL CRIMINAL TRIBUNALS Dr. Maja Munivrana Vajda FacultyofLawin Zagreb, 2013/2014

  2. Art. 29. ICTY Statute: Co-operationandjudicialassistance • States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. • States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, (including, but not limited to: the identification and location of persons; the taking of testimony and the production of evidence; the service of documents; the arrest or detention of persons; the surrender or the transfer of the accused to the International Tribunal.)

  3. Part 9 ofthe Rome Statute (art. 86-102.): INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE • Art. 86. (General obligation to cooperate): State Partiesshall, inaccordancewiththeprovisionsofthis Statute, cooperatefullywiththe Court initsinvestigationandprosecutionofcrimeswithinthejurisdictionoftheCourt.

  4. COOPERATION 1. Accepting jurisdiction of an international criminal tribunal/court in all its aspects (in line with principles of primacy/complementarity) 2. Arrest and surrender of an accused 3. Cooperation relating to investigations and production of evidence 4. Other duties of states (to provide other forms of mutual legal assistance; recognize status, privileges and immunities of Court’s officials; finance the Court, enforce fines and forfeiture measures, enforcesentences?...)

  5. IMPLEMENTING LEGISLATION • ICTY: Res. SC 827 : par. 4. “Decidesthat all Statesshallcooperatefully… andthatconsequentlyallStatesshalltakeanynecessarymeasureundertheirdomesticlaw to implementtheprovisionsofthepresentresolutionandthe Statute, includingtheobligationofStates to complywithrequests for assistance or ordersissuedby a TrialChamberunderArt. 29. ofthe Statute.” • ICC: Art. 88. (Availability of Procedures under National Law): SP shall ensure that there are procedures availableunder their national law for all of the forms of cooperation which are specified under this Part.

  6. IMPLEMENTING LEGISLATION IN CROATIA • Constitutional Act on Cooperation of the RoC with the International Criminal Tribunal, 1996. • Law on the Application of the Statute of the ICC and prosecution of crimeas against International Law of War and Humanitarian Law, 2003, 2011. • Other laws, by-laws and regulations (Law on Confirmation of the Agreement on privileges and immunities of the ICC, Decision on establishment of Commission for War Crimes, Gvt decrees ….)

  7. PRELIMINARY ISSUES • Hierarchy of implementing provisions: - constitutional, legal, sub-legal? • Content: • obligatory: • provisions enabling full cooperation with the international court • Recognition of jurisdiction and the authorityof final judgments • Establish a channel of communication • (ICC- art. 70. para. 4. Rome Statute, penalize offences against the administration of justice)

  8. PRELIMINARY ISSUES b) facultative: • Harmonizing substantive criminal law • Provisions on execution of sentences • Other important, related issued (not strictly of implementing nature) • Technique – enacting one “implementing” act/law, amending the existing legislation, mixed approach

  9. 1. Recognitionofthejurisdictionofthe ICTY/ICC • Deferral and Referral of proceedings: • art. 9. ICTY Statute – primary jurisdiction of the ICTY (art. 9. RPE) • (art. 11.bis ICTY RPE) • Art. 1. Rome Statute – complementary jurisdiction • Art. 17-19 RS (issues of admissibility, preliminary rulings, challenges to jurisdiction or admissibility)

  10. 1. Recognitionofthejurisdictionofthe ICTY/ICC • Ne bis in idem • Art. 10. ICTY Statute • Art. 20. Rome Statute • A) internal – only ICC • B) ‘downward’ – unconditional • C) ‘upward’ – with important exception

  11. 2. Arrestandsurrenderofsuspects/ accused • Art. 29. para. 2. (d) and (e) ICTY Statute • Art. 89. ICC Statute • Extradition or surrender? – art. 102. RS Croatia – surrender procedure: • Judicial nature (County court + SC), Constitutional Complaint, MJ may postpone the surrender • Formal nature (identity of the accused, jurisdiction of the ICTY) • Voluntary surrender?

  12. 3. State cooperationingatheringandproducingevidenceanddocuments • Art. 29. par. 2.(b) and (c) ICTY Statute + rule 54 bis RPE • art. 93. (par. 4. – art. 72) RS • Consequences of a state failure – sanctioning states? • Subpoena ducestecum (Blaškić case) • Rule 108 bis ICTY RPE, amendments of rule 54 bis RPE

  13. Miscellaneous: • Authority of Prosecutor to conduct on-site investigations • Presence during procedural measures undertaken by national authorities • Bodies in charge of cooperation, way of communication • Immunities • Financing • Enforcement of the judgment og the Tribunal…

  14. “Non-implementing” issues • Specific procedures governing prosecution of international crimes by national authorities • Efficiency-related measures • Universal jurisdiction

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