Introduction
Since the International Criminal Court (ICC) does not have direct executive powers, or an apparatus for conducting investigations on its own and in exclusive way, investigations of crime as well as the acquisition of evidence usually fall into areas subject to state sovereignty and are based on national law. (Ambos, 1998, p. 3743-3746; Ambos, 1999, p. 739-772; Ahbrechet, 1999; Zimmermann, 1998, p. 170ss, Bower, 2011; Rothe and others, 2013. Safferling, 2012. Van Dem Herik and Stahn, 2010, pg. 586ss. Werle, 2012. Beck and others, 2011. Pikis, 2010. Clark, 2011, pg. 537ss. Krzan, 2016. Carter and others, 2016) (Werle, 2012. Krzan, RZAN, 2016. Ludwin King, 2015. Davidson, 2016, pg. 72ss. Politi and Gioia, 2016) (See, 2012)
National legislation, however, is often lacking in punishing certain crimes, particularly as regards the rules of jurisdiction (See, Wald, 2012, p. 230ss), since it does not always provide for the power to seek and prosecute who is responsible for a crime or for damages of a foreign citizen (Turan, 2015), and therefore with respect to the phenomenon of internationalization of national jurisdiction. This also happens with offenses falling within the jurisdiction of ICC under the constitutional instrument. (Jo and others, 2018). The ICC in order to exercise the necessary coercion for the purposes of justice in the territories of the States, ends up to depend on the procedural mechanism of cooperation. (Bekou and Birkett, 2016)
Legal analysis of international cooperation under international criminal justice
International cooperation seeks to realize: -an harmonized system of laws by all States, which will place particular emphasis on the general provisions of criminal codes and the definitions of the most serious offenses; -the definition of the area of the offending crimes of mankind so as to realize through international agreements a solid and effective system of criminal prosecution for serious offenses; -regulation of jurisdictional conflicts with the uniform provision of crimes against humanity that are not always “protected” and provided for in national criminal justice systems.
Currently, we can distinguish between four forms of cooperation: extradition, mutual assistance, transfer of criminal proceedings and the enforcement of foreign judgments.1
The rules governing international cooperation can be found both in international law laying down the rules applicable to inter-ethnic relations and in domestic law defining the measures, conditions and modalities that States perceive as cooperation. (Liakopoulos, 2014).
The results of regulatory processes developed within state and supranational levels differ in scope and regulatory technique, lacking coherence and specificity. (Rreisinger-Coracini, 2013, p.112ss). These shortcomings therefore indicate the need for integration of judicial cooperation through mutual assistance aimed at a global codification that will enable States to be cumulative and alternative in order to ensure their effectiveness. Legislative approaches by which States adopt various forms of international judicial cooperation are not yet in a position to guarantee effective, solid and coordinated enforcement of judicial cooperation.
The expression “judicial cooperation” refers to and includes activities that the judicial authority of a state carries out in relation to a pending criminal case or already celebrated in a foreign country. In this sense, the formula also appears to be synonymous with the notion of judicial assistance, 2 which concerns the execution of acts to facilitate the pursuit of judicial activity in a third party, as well as the transfer of proceedings and the enforcement of foreign penalties. (Augstìnyovà, 2014, pg. 2). The jurisdiction of ICC is based on the principle of subsidiarity (art. 17 of the Statute of the ICC. Bergsmo, 2010) and/or complementarity3 in order to adjudicate “the most serious crimes of international scope” (Art. 4 and 6 of the ICC; Kelly, 2012, p. 126s; De Hert and others, 2018) according to art. 1 of the Statute. (Krzan, 2016)
The safeguard clause foreseen by art. 10 of the Statute also states that “no provision of this part may be construed as limiting or otherwise prejudicing the rules of international law existing or in formation for purposes other than those of this Statute”4.
The possible lack of ad hoc national legislation, which allow for judicial cooperation at international level and especially in the context of international criminal courts, is now debated (Allen, 2012, pg. 123ss ) by both the case law of the courts and by the attempt, rectius requirement not to subtract the perpetrators of crimes (Hall, 2011, pg. 640ss ) that offend international public order (Waterlow and Schumacher, 2018) upon delivery to international criminal courts.
According to Stromseth there are three elements of composition that govern cooperation with ICC and States participating in the judicial cooperation system. (Davidson, 2017) These elements are: a. understand the local terrain more deeply and fully: “(...) especially whether domestic justice systems enjoy any degree of local legitimacy (or instead are deeply discredited)-and the goals and hopes of the domestic population who endured the atrocities and must now chart a new future-will be enormously significant both in shaping the concrete possibilities for post-conflict criminal justice and in influencing public attitudes and confidence in those efforts (...)”; b. think systematically about tribunal’s demonstration effects. In that case: “(...) by holding individual perpetrators accountable for their actions, trials demonstrate that certain conduct is out of bounds, unacceptable and universally condemned. Trials for atrocity crimes also aim to demonstrate and to reassure people that justice can be procedurally fair both in terms of due process and, substantively, in terms of evenhanded treatment of comparable actions regardless of who committed them (...)” and; c. be proactive about capacity-building and look for synergies. This type of synergy that actually refers to national legislation: “(...) can be the supply side of justice on the ground. International and hybrid criminal tribunals typically enjoy a degree of international support that domestic, post-conflict justice systems can only dream of. These understandably international resources are focused on the challenging task of prosecuting perpetrators of atrocities in fair trials that meet international standards of justice. There are opportunities in international and hybrid tribunals to contribute concretely to domestic legal capacity while doing their own important work to advance justice (...)” (Stromseth, 2009, pg. 87ss ).
State assistance is aimed at conducting investigations in the preliminary and deliberative phase (Buisman, 2013, p. 34. Nystedt and others, 2011, pg. 15), in the prosecution of criminal proceedings (Sikkink and Joon Kim, 2013, pg. 272ss ) and at the stage of celebration of the process that requires the presence of defendants, since the Statutes of various international courts, art. 20, par. 4, lett. d) of the Statute for the International Criminal Tribunal for Rwanda (ICTR), art. 21, par. 3, lett. a) (Schwarz, 2016. Eliadis, 2018) for the ad hoc Tribunal for Former Yugoslavia (ICTY) and art. 63 of the Statute for ICC 5 do not provide for the process in absentia6
Obviously court judges, and especially the Prosecutor, can provide evidence7, documents, testimonies8 etc., especially during the investigation of the merits of the guilt and the related accusations, despite the physical absence of the accused persons. Obviously a number of exceptions to the obligation9 to cooperate that do not appear in the Statutes of the ad hoc ICTY (Janjac, 2013. Tofan, 2011. Van Der Wolf, 2011) and for the ICTR (Antkowiak, 2011. Catani, 2012. Cherif Bassiouni, 2010. Doak, 2011. Ferioli, 2013. Garbett, 2013. Graham, 2012. Pena and Carayon, 2013. Rauxloh, 2011 (a) and (b), 2011, 2012. Van Dean Wyngaert, 2012. Stolk, 2015, p. 974ss) and/or Rome10 in the area of delivery, extradition (Sadoff, 2016, p. 248ss ), evidence collection, rogatory assistance etc. testify the desire to transpose this form of cooperation from a field marked by equal relations11 at a level which best expresses an instrumental and serving role, of a vertical nature between the Court of Justice and the Member States and of a horizontal nature between Member States concerning the delivery, extradition, revocation, arrest warrant12, especially for the collection of evidence showing a clearly superior jurisdiction. (Kahn and Buisman, 2015)
The effects of this kind of relationship are represented by regulatory compliance obligations by the Member States of the Statute13; obligations for the proper interpretation of domestic law; responsibility of the State in case not only of breach of obligations established by domestic and international law but also in case of lack of active cooperation with ICC. Then, alongside a limited criminal liability (weak link), there is a strong indirect international criminal responsibility (Dondè Matute, 2018) linked to the phenomenon of punishment for serious crimes in the broad sense, with the consequence that the criminal effects they produce result from the combination of international jurisprudence with internal national rules within the transnational character (Currie, 2015, pg. 30-40) which takes on the elements of the cases examined and the concreteness of the cases examined by the ICC where transnational or material elements may concern: the subject, the material object of the offense, the conduct, the event, the effects of the offense. (Niblock, 2016)
In fact, every interpretive activity should meet its intrinsic boundaries as was the case for instance of state's competence in the repression of crimes. In this case, the repressive system was inspired by the principle of international universality imposed and expressed by the principle of aut dedere aut judicare (International Law Commission, 2014; Van Steenberghe, 2013; Newton, 2014) that imposes on States that want or not want to judge the alleged perpetrators of the crime of extradition. (Hayes, 2012, pg. 570ss. Liakopoulos, 2017. Martins Amorium Dutra, 2012, pg. 5ss ).
To this end, the horizontal element stems from the fact that the Statute is based on a consensual basis and this implies that the contracting parties have the power not to assume any obligations that could affect the rights of third States.14 (pacta tersiis nec nocent nec prosunt).
Other horizontal aspects, of minor importance, are repeated in Part IX of the Statute15 which recognize and give value to the prerogatives in national law, prefiguring the possibility for States to interfere both in inquiry and in court's proceedings16. This interference can be dangerous if the cooperative attitude of States is lacking, so as to facilitate the execution of court's requests.
Equally important is art. 73 of the Statute of ICC, which is in line with the horizontal model of cooperation and demonstrates the prevalence of the obligation arising from an international agreement between a State Party and a Third State on the obligation to cooperate with the Court, since if the Court requests a contracting state to produce a document or information disclosed by a third party, if the latter is not a State Party “and refuses to consent to the disclosure, the state has informed the Court that it is unable to provide the document or information due to an existing obligation of confidentiality compared to that which it holds”17.
Art. 29 of the Statute of the ICTY18 similar to art. 2819 of ICTR provides for an unconditional obligation to cooperate with the States on requests. States must respond without delay referring primarily to violations of humanitarian law20 and erga omnes obligations. (Cherif Bassiouni, 1995. Macleod, 2010). The obligation arising from the binding nature of the United Nations Resolution n. 827 and its imposition on all States as an erga omnes obligation was clearly defined by the Appeals Chamber of the ICTY in the Blaškić case of 29 October 199721. Moreover, par. 4 of the United Nations Resolution n. 827 establishes the obligation to implement the Resolution and the Statute22. In international cooperation the Statute dedicates a part to itself: Chapter IX consisting of 17 articles23 based on interstate judicial assistance and extradition. This statutory body should be supplemented by the provisions contained in the rules of procedure and in addition to the applicable rules of international law (art. 21 of the Statute)24.
The opening provision (art. 86) lays down the principle of a general obligation on States Parties to cooperate with the ICC. Obligation and important affirmation of the functioning of the Court (Sluiter, 2010, pg. 462s ) and particularly of the “internationalization” of domestic law (in the sense that repressive devices appear as the carrier of national law to supranational interests (Liakopoulos, 2017), rectius instruments for the application of decentralized international and community law) do not exclude the full cooperation of ICC with the European Union Institutions.25
Art. 8726 sets out rules for cooperation requests and art. 88 States that States Parties are required to fulfill their obligations, including the introduction of appropriate regulations and the achievement of that objective. Articles 89 to 92 (delivery of certain persons to the Court, competing requests, content of the arrest and delivery request) and articles 101 to 102 regulate the delivery of persons sought by the Court and articles 83 to 96 (Liakopoulos, 2017) (other forms of cooperation, deferral of the making of a request for ongoing inquiries or ongoing proceedings, deferral of a request for a declaration of inadmissibility, content of a request for other forms of cooperation provided for in art. 93) and 99 (followed by requests under art. 93 and 96) govern other forms of cooperation and assistance27. Finally, articles 97 to 9828 (consultations, cooperation on waiver of immunity and consent for delivery)29 and 100 (expenses)30 contain provisions of general nature. The Statute of the ad hoc tribunals allows cooperation with the Member States that are part of the United Nations; instead, the Statute of ICC (art. 87 (5)) provides the possibility for the Court to invite non-Member States to provide assistance on the basis of an ad hoc agreement. (Ole and Askin, 2012). The inspiration for this permission was also based on the exercise of compulsory and optional universal jurisdiction. (Roht-Arriaza and Fernando, 2011) for only serious violations, i.e. violations made during armed conflicts such as the ICTY in Tadić case31. Thus, the Court may transmit a request for delivery of a wanted person to any state in whose territory an international crime was committed. (Heller, 2018).
We must point out that the lack of a formal nature of the Statute does not exempt States not parties to cooperate with ICC when it comes to crimes arising from the provisions of customary law such as genocidal crimes (Van Der Wolf and De Ruiter, 2011) provided for by the Geneva Convention of 12 August 1949. (Paylan and Klonowiecka-Milart, 2015, pg. 560ss. Satzger, 2017). The Court may also request the assistance of international organizations as it appears in art. 87, par. 6 (Dong, 2009) as well as to constitute a globally wide ranging cooperation network32 including the United Nations Security Council.33
In particular, art. 102 of the Statute clarifies that surrender means for a state “to hand over a person to the Court under the Statute”34 and extradition “handing a person to another state under a Treaty, a Convention or its national legislation” (Liakopoulos, 2017), based on the principle of mutual legal assistance- (Van Der Wolf, 2011).
The delivery system is governed by the rules of the Statute and it is generally true that extradition is always a co-transfer of a person because it is judged by the jurisdiction ad quem. Delivery rules are interpreted in the light of the novelty represented by the institutionalization of international criminal jurisdiction, are also in accordance with art. 21 of the Statute35 and the principles which can be derived from the matter of extradition.
The reference to the specialty rule (art. 101 of the Statute) is the confirmation that the new rules do not intervene on a pure ground even though there is no rule of general international law requiring compliance with the specialty rule in the field of judicial assistance. Examination of this principle refers to conventional practice and internal rules36. Equally important is (in multilateral treaties governing judicial assistance) the fact that the principle of specialty is generally not directly envisaged. Its operation emerges from reserves to treaties formulated by States. Thanks to international instruments, there is a clear tendency to achieve a progressive restriction on the scope of the principle with the aim of promoting judicial cooperation and repressive action. (The Prosecutor v. Uhuru Muigai Kenyatta, Decision on the withdrawal of charges against Mr. Kenyatta, ICC-01/09-02/11-1005, 13 March 2015)
This aspect emerges with some evidence only in relation to bilateral agreements, while multilateral instruments do not follow an innovative approach. The provisions of international judicial cooperation shall apply only on condition that they do not prejudice the obligations of other bilateral or multilateral treaties governing or regulating in whole or in part mutual judicial assistance between the contracting States. Conventions and treaties generally provide mutual assistance or specific actions while practice tends to reduce the margin of “unnamed assistance” (sine nomine firmamentum).37
The different nature of cooperation with ICC allows for the support of the forefront case contained in lett. 1, par. 1, art. 93 of the Statute38. Reference is made to those actions called “fishing expeditions” (claims that are usually rejected in the practice of normal Court assistance)39; of the material in order to initiate an internal procedure, but it also seems to extend, broader requests for coordination in investigative activities or those actions which, according to certain jurisdictions, could be attributed to forms of police cooperation and not procedural-judicial. (Fassassi, 2014)
States party to the Statute do not have the power to refuse such forms of cooperation, but they should be allowed to introduce rules to their own accord. It must be assumed that the assistance to which the Statute relates to is of general nature. There are no cases falling within the categories of international judicial cooperation cases as for example are the on-site investigations of the Court's Prosecutor in an inquisitorial/accusatory system (Damaška, 1973, p. 506)40: possibilities provided by art. 54 (duties and powers of the Prosecutor in the matter of investigations) of the Statute41, other than of art. 99 par. 1, to attend the execution of the request for assistance as a form of cooperation. (Guilfoyle, 2016; Kucher and Petrenko, 2015, p. 144ss ).
The Prosecutor's procedural forms and powers prevent Court's awareness from being relevant to the conviction of guilt that must be secundum acta et probed as well as the possibility of acquittal even when there is evidence but not enough to incriminate a person. In any case, the evidence binds the right to strict legality because they give the force of the reasoning that judicial decisions are elected and legitimate by assertions as verifiable and falsifiable, even if approximate. The validity is conditioned on the truth, although relative to their arguments that jurisdictional power is not the inhuman power purely potentially of justice, but is based on knowledge also plausible and probable but precisely for this being rebuttable and controllable both by the defendant and his defense than by international society. (Schwöbel, 2014)
The reasoning allows for the establishment and control of decisions both in law for breach of law or for defects in interpretation or superstitiousness and in fact due to lack or insufficiency of evidence or inadequate explanation of the connection between conviction and evidence. We refer to the investigations that the Prosecutor carries out in the territory of a State Party (pyramidal investigation strategy)42 on the basis of an inability of the latter to assist.43
Investigations and especially confidential agreements that take place in areas of former armed conflict are linked to the concept of “homes”, defined as “(...) the specific incidents in which the crimes were committed by identified perpetrators (...)” (Fujiwara and Parmantier, 2012, pg. 575s). The Prosecutor has adopted the strategy of proceeding only against the major perpetrators of international crimes, leaving national courts to assess the criminal liability of the “lower -ranked” and “intermediate-rank” accused. (Decision on the Prosecutor's request for authorization of an investigation in Georgia (27 January 2016).
Such cooperation is irreducible as it is based on unambiguous unavailability44 but does not mean that on-site investigation is not a form of cooperation with ICC but simply a different cooperation characterized the fact that the State Party does not actively engage but leaves the organs of supranational justice to act in its territory (Buisman, 2013) as a form of passive cooperation (Mityaba, 2012). According to art. 99, par. b) the Prosecutor will be required to consult with the requested state, for which he will never be able to leave, irrespective of the impossibility or excessive delays by the national authorities. (Bruchacher, 2004, pg. 72ss ). If the requested state decides to omit to cooperate with the Court with a view to accessing the territory the Prosecutor for the purpose of carrying out an autonomous activity, the latter may not proceed with the transaction but would still be in a position to initiate proceedings provided for by art. 87 of the Statute for the case of non-cooperation.45
According to the same article (par. 4), the Prosecutor may undertake investigations that fall within the scope of: “(...) examination without modification of a public site or other public place (...)” (The policy paper on preliminary examinations of Prosecutor, November 2013). The provision is extremely restrictive because the Prosecutor will never go to private property locations, to collect evidence items. There is no judicial cooperation in the strict sense in the hypothesis envisaged by art. 57, par. 3, lett. d of the Statute according to which the Prosecutor may take investigative measures in the territory of a State Party without having assured the cooperation of this state in accordance with Chapter IX of the Statute. The cooperation whose obligation is enshrined in the Statute not only includes active cooperation (art. 86) but also what can be defined as passive cooperation (art. 57)46.
The foreseeing cooperation of the criminal Court with States Parties is an ineluctable possibility in the context of a relationship between jurisdictions. (Nice and Tromp, 2018). There may be a case that a state is committed to prosecuting an offense of ICC's jurisdiction, which requires the Court's cooperation to fulfill its own ends of justice. This is the situation provided by art. 93, par. 10 of the Statute: a form of cooperation on the contrary, that is, reciprocal or inverse of the one provided for by States Parties to the Court. This prediction is the natural corollary of the principle of complementarity (Hobbs, 2012): in the face of a state Court proceeding to the repression of core crimes against humanity (Dubler Sc and Kalyk, 2018), war crimes for which ICC would be competent, the Court can not escape the obligation to provide the requested cooperation. (Guilfoyle, 2016)
The hypothesis of lack of cooperation by the States
In the absence of an unjustified failure by a State Party to cooperate which prevents the organs of the Court from exercising the functions and powers provided for in the Statute, the Court shall, after having taken formal note of it, report the matter to the Assembly in the States Parties, which according to art. 112, par. 2 (f) has jurisdiction to examine any matter relating to the lack of cooperation.47 The Statute, following a horizontal approach in the relationship between the Court and the States, did not provide for sanctions nor did it have the authority to act on the part of the Court itself in order to make the cooperation of the recalcitrant States effective. In the silence of the Statute in relation to the consequences of the non cooperation of a State Party (Jones, 2016), it is considered that the matter should be resolved by applying the general rules on state liability. In particular, the United States Assembly may require the immediate cessation of incapacitated behavior by the state concerned or consider resorting to collective measures. (Mofett, 2014, pg. 210ss ).
From a procedural point of view, the agreement between the ICC and the United Nations confers on the UN Register the task of transmitting the relevant acts to the Security Council through the General Secretary (art. 17) and to receive news of any action taken.48 The provision in question does not appear to allow the Court to inform the Security Council even if the criminal proceedings in the matter of its competence under Chapter VII of the United Nations Charter have arisen from a complaint of one State or was initiated motu by the Prosecutor. The provision does not cover the consequences of minor infringements or those where the failure to cooperate did not have the effect of hindering the Court's action. (Dubler Sc and Kalyk, 2018)
It has been noted in that regard that, in addition to the dispute settlement mechanism referred to in art. 119 (settlement of disputes) of the Statute (Macdonald, 2017, pg. 630s), any reaction, although not channeled through the Assembly of States Parties or the Security Council, should be taken by the States in cooperation, owing to the erga omnes nature of the obligation to cooperate with the Court not excluding, however, the adoption of countermeasures identified. (Dubler Sc and Kalyk, 2018). The statutory provisions require that the office of the Court which has advanced to the request for cooperation-to which the State concerned has not followed-left a request to the competent Chamber, for the latter to initiate the procedure provided for in art. 87, par. 7 of the Statute (Regulation 109)49.
The subject of the requests for cooperation is well defined by art. 89, which governs the delivery of persons to the Court, and art. 93 concerning the assistance aimed at facilitating the investigation and prosecution of criminal offenses under the jurisdiction of the Court. The Statute (art. 87) does not identify the organs within it50. However, the implementing provisions, when establishing the offices responsible for the transmission of requests for cooperation, distinguish between the Chamber or the Prosecutor's Office, thus authorizing both of them to act under their respective prerogatives, the cooperation provided for in title 9 of the Statute, at the request of the Prosecutor, to the Preliminary Chamber, which has to issue its orders and order the necessary mandates for the purposes of an investigation into the proceedings. (Cryer, 2010). The initiative may also be taken by the accused person who may appeal to the Court to issue an order to assist in preparing its defense as is apparent from art. 57 (preliminary chamber functions and power), par. 3, lett. b)51. Much of the requests for cooperation, and in particular those listed in art. 93, see as the protagonist the Prosecutor who, based on art. 54, par. 3, let c) provides that the Prosecutor may conclude any agreement or agreement that is not contrary to the provisions of the Statute and may be necessary to facilitate the cooperation of a state, an intergovernmental organization or a person. (Davidson, 2010)
According to art. 15 regarding the role of Prosecutor during the preliminary examination, the Prosecutor may request information from the States in order to assess whether there are any elements to justify the initiation of investigations. This issue has been questioned in problematic terms by the Committee of the parties in the “informal expert paper”52, in which two possible interpretations have been made: on the one hand a restrictive reading would lead to the exclusion of the Prosecutor from using title 9 for this phase of the investigation, the only place that the decision of the preliminary chamber authorizing the commencement of the formal investigation would become the duty of cooperation of the States dictated by art. 8653 and 93 of the Statute. (Cryer, 2010; Safferling, 2012). And to a second interpretation: in the opinion of the “informal expert paper” (Dubler Sc and Kalyk, 2018) it would be better to respond both to the willingness expressed by the States during the negotiation to significantly contain the Prosecutor's powers of initiative and the literal interpretation of art. 86 which deals with the cooperation of States Parties in investigating and prosecuting criminal offenses falling within the jurisdiction of the Court, with the sole purpose of investigating only those initiated and following the authorization of the preliminary chamber. Some States may have problems of legal and political nature to comply with this request in the absence of a precise legal basis for their national legal system. (Meierhenrich, 2015, p. 97-127).
Art. 15, par. 2 also provides that the Prosecutor54 may at this stage use the collaboration of intergovernmental or non governmental organizations55 for a preliminary identification of witnesses56 and for other information that may be relevant. The same provision limits the taking of evidence by the Prosecutor only at the seat of the Court. The informal expert paper does not seem to exclude the possibility for States or other organizations to provide evidence from potential witnesses (Robinson, 2011, pg. 355-384), including spontaneous written statements and that the Prosecutor may, with the consent of the state concerned, extend the taking of evidence even in the territory of the latter. Based on the principle of specialty, the objective of witnessing57 and proving the innocence or guilt of a person subject to criminal proceedings is considered to be prevalent in relation to the general principle of confidentiality in the interests of the requested state. Court's cooperation requests are transmitted to the States concerned by the UN Registry or the Prosecutor's Office. The communication channels indicated in art. 87 of the Statute provide the traditional ways through diplomatic channels and that the participating state is part of the Statute of the Court thus enabling a standard of protection of information transmitted through a judicial assistance procedure.
Art. 87 allows the submission of requests for cooperation also through international organizations and INTERPOL58 or through any relevant regional organization where such solution appears to be more appropriate and not incompatible with the statements made by the States. The wording of the rule is the obvious result of a compromise over the position of some delegations opposed in principle to the designation in the status of predetermined channels of communication. Pragmatical provisions are contained in art. 92, par. 2 and 96 (content of a request for other forms of cooperation provided for in art. 93). Par. 1 for the transmission of the request for arrest59 is also provisional (art. 92)60 and requests for judicial assistance to allow the use of any other means of transmission of a written document61.
Art. 87 of the Statute requires the requested state-without distinguishing in such a case between a State Party or not-the obligation of confidentiality on the requests, provided that their disclosure is not made necessary by the execution of the cooperation. Par. 4 of the same art. 87 establishes, in connection with the general provision contained in art. 8762, that particular measures of protection of the information contained therein may be taken by the Court to ensure the physical and psychological security and well-being of the victims63 of potential witnesses and their family members, and consequently States will have to followed these measures in dealing with the above information in the execution of the requests themselves. (Bachvarova, 2017. Fedorova, 2012. Foroughi and Dastan, 2017. Nicholson, 2018. Liakopoulos, 2018)
Art. 100 disciplines a practical aspect of cooperation, the one relating to the allocation of the burden of payment of the related costs. The Statute seems not to have detached itself from the traditional rules laid down by the judicial cooperation treaties.
Equally important is art. 96 that regulates the content of the requests for legal assistance referred to in art. 93, establishing, first of all, that they must be written. The Statute resumes with the necessary adjustments when it normally prescribes non-binding Mutual Assistance Treaties and, in particular, the Model Treaty on Mutual Assistance in Criminal Matters approved by the United Nations with the Resolution n. 45/117 of 14 December 1990 (UN doc. A/RES/45/117); the Inter-American Convention on Mutual Assistance in Criminal Matters of 23 May 1992; the Model Treaty of Extradition, the Model Treaty on the Transfer of Proceedings or Criminal Matters, the Model Agreement on the Transfer of Supervision of Offenders conditional sentences or conditionally released on December 14, 1990.
Art. 99 regulates how to execute assistance requests. It must be a request for assistance in conducting those investigative activities that are required to ensure “successful execution”, a provision that has been formulated considering that the Prosecutor's direct activity is a sort of extrema ration in the investigation. Moreover, Regulation n.108 of the Regulations of the Court (RoC) provides that the commencement of the proceedings does not suspend the effectiveness of the request, unless such decision is taken by the Charter. The scheme is that of the international standard of international rogatory, according to which the request for assistance is carried out by the national authorities of the state required in accordance with the principle of territorial sovereignty. Primarily important is the one defined as locus regit actum considered a recognized principle because of its use in the conventional system that has to be observed. (Dubler Sc and Kalyk, 2018).
International law has sought over time to evolve towards the assumption of typical procedural forms seeking to secure the rights of defense, which can not be sacrificed for the sole reason that the probative acquisition takes place in a foreigner state rather than in the territory of the previous state. In fact, it is a request for execution of certain activities carried out by a foreign judicial authority, the transfer of the court judges of the place of the proceedings is a form of cooperation which is distinct from the “traditional” rogatory.
A first limitation is that of double criminality which constitutes an optional refusal reason which leaves the requested state the possibility in the concrete case of refusing to execute the requested activity; and a second limit is that of discrimination when the conduct or the outcome of the trial may be conditioned by considerations relating to race, religion, sex, nationality, language64, public opinion or personal or social conditions. Collection of evidence before the national authorities must comply with the rules for their admissibility before the Court referred to in art. 69 (proofs). (Prosecutor v. Ruto et al., ICC T. Ch., Decision on Prosecutor’s Application for Witness Summonses and resulting Request for State Party Cooperation, ICC-01/09- 01/11-1274-Corr2, 17 April 2014, paras. 100 and 193; Prosecutor v. Katanga and Chui, ICC T. Ch.; Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, 13 May 2008, paras. 107-113) Evidence entirety of Document DRC-OTP-1017-0572, 25 May 2011, para. 1; Prosecutor v. Katanga and Ngudjolo (Case No. ICC-01/04-01/07), ICC T. Ch. II, Decision on the Bar Table Motion of the Defense of Germain Katanga, 21 October 2011, para. 16; Prosecutor v. Katanga and Ngudjolo, ICC T. Ch., Decision on the Bar Table Motion of the defense of Germain Katanga, 21 October 2011, paras. 16-19; Prosecutor v. Jean-Pierre Bemba Gombo, ICC A. Ch., Judgment on the appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled: “Decision on the admission into evidence of materials contained in the prosecution’s list of evidence”, 3 May 2011, paras. 2-3, 45 and 70; Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 30 September 2008, para. 78).
The only limit of the Statute is the only hypothesis of prohibited procedures: “not compliant or compatible” according to the Statute65, which may affect the “power” of refusing to collaborate in collecting evidence from the state that according to the Court has committed an international crime. (Mcdermott, 2016)
It is not sufficient, therefore, that the state asserts that the requested procedure is only for national proceedings or that there is a contrary procedural practice. There must be an express ban on law. Among the particular enforcement procedures, the same art. 99 provides that the Court may request the presence or participation in the execution of the request of certain persons. This applies in particular to the presence of the Prosecutor in the execution of the act, whose role may be made more or less active in the acquisition of investigative acts. The Prosecutor may request to examine the witnesses directly or to be present at a search.
An additional way of execution is indicated in art. 55 where it is established that the person investigated before being questioned by national authorities66 in the execution of a request for cooperation, the rights listed must be informed in order to guarantee the accused a minimum standard of guarantees. (Young, 2011. Youngsok, 2010. Zgonec-Rozej, 2010). As far as concerns the requests made by State Parties to the Court, the procedural provisions stipulate that they will be carried out to the possible extent, in accordance with the procedures set out by the requesting state. Art. 99 provides that if the Court requests the urgent transmission of the requested documents or evidence, they will be sent by the State in due course. Par. 5 of art. 99 also refers to the provisions contained in art. 72 on the protection of national security information: when hearing or interrogating a person (Liakopoulos, 2018), the latter may also oppose the obligation of the requested state to enforce the assistance request in order to prevent the disclosure of confidential information for defense or national security. In this spirit, a general limitation to the execution of the rigor is the fact that the taking of evidence may undermine the sovereignty, public order, security or other essential interests of the State.
According to par. 1 of art. 99 the Prosecutor has the right to ask to participate actively in the collection of evidence; par. 4 of the same provision allows him to execute the application directly on the territory of the State Party concerned under the general laid down by art. 54, par. 2 to conduct on-site investigations.(Schüller, 2013, pg. 227ss ). The scheme in this case is also traditional rogatory on international level. The Statute has adopted a compromise solution to break the hypothesis now contemplated by art. 57, par. 3, lett. c) the one falling within the scope of cooperation governed by title 9 of the Statute. (Banda and Jerbo ICC-02/05-03/09-170, Trial Chamber IV, 1 July 2011, Decision on “Defense Application pursuant to articles 57(3)(b) & 64(6)(a) of the Statute for an order for the preparation and transmission of a cooperation request to the African Union”, par. 14; Banda and Jerbo ICC-02/05-03/09-169, Trial Chamber IV, 1 July 2011, Decision on “defense Application pursuant to articles 57(3)(b) & 64(6)(a) of the Statute for an order for the preparation and transmission of a cooperation request to the government of the Republic of the Sudan”, par. 17).
It was considered the most extreme scenario, or that of the State Party in which investigative acts are to be carried out, which is manifestly impossible because of the unavailability of all authorities or all the components of its judicial system competent to enforce to the requests for cooperation provided for in title 9. (Sluitter, 2018). In such a case, the Prosecutor may address the preliminary chamber to obtain authorization to conduct specific investigative measures within the territory of that state by bringing requests for cooperation to be carried out in some other States other than non judicial authorities. In that case, the preliminary chamber must ascertain in order to grant such authorization. These elements must be based on evidence of a certain non existence, as evidenced by the use of the term clery.
The preliminary chamber after receiving the written request67 the Prosecutor should inform the state concerned by asking its opinion on the matter to be taken into account in the adoption of its final decisions which do not also exclude the possibility of non acceptance with precise and valid reasons from the part of the state in which it is requested to cooperate immediately. (Liakopoulos, 2018).
Acts to be carried out on site must not involve the use of coercion measures for which an order or authorization of the judicial authority is therefore required. The rule distinguishes among them in particular the collection of spontaneous declarations or evidence provided voluntarily even without the presence of the authorities of the requested state if that is decisive for the effective execution of the request and the inspection of a site or other public place provided that no modifications are made (Liakopoulos, 2018). Spontaneous declarations are considered usable as information de quibus even during the preliminary investigations undertaken in the respect of fundamental rights as provided for in international and national law and have end processing effect and may also be used in non filing proceedings in the same way as spontaneous information, which essentially represents a specification and can therefore be based on the application of a coercive measure.
The execution procedures of Prosecutor's on-site investigations under Title 9 of the Statute are diversified depending on whether or not the state in whose territory the crime was committed. In the case of investigations in the territorial of a State, art. 99, par. 4, lett. c) provides for the on the spot investigation of the existence of a decision on the admissibility of art. 18 (preliminary ruling on procedural matters)68or art. 19 (pre litigation questions on the jurisdiction of the Court and the procedural nature of the case); in the case of in situ investigations there are however some limitations.(Prosecutor v. Gaddafi and Senussi (Case No. ICC-01/11-01/11-547-red), ICC AC, Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”, 21 May 2014, para. 165; Prosecutor v. Ruto et al., ICC-01/09-01/11-307, AC, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the application by the government of Kenya challenging the admissibility of the case pursuant to article 19(2)(b) of the Statute”, 30 August 2011, para. 2; Prosecutor v. Gaddafi et al., ICC- 01/11-01/11-344-Red, PTC, ‘Public Redacted Decision on the Admissibility of the Case against Saif Al-Islam Gaddafi’, 31 May 2013, para. 52; Prosecutor v. Mbarushimana, Prosecution’s Application under article)
The purpose of these measures must be to ensure the effectiveness and integrity of the proceedings and to guarantee the rights of the defense. (Solum, 2004, pg. 181ss)69.
The wording used: “(...) taking such other action may be necessary (...)”, provides that the measures to be adopted must be of the same nature as those already enumerated in the same provision. Moreover, ad hoc tribunals, in the same sector, have made use of another provision that detects another mode of “on site investigations”70. This is the Rule 4 RPE of the ICTY, under which “(...) a chamber may exercise its functions in a place other that the seat of the Tribunal, if so authorized by the President (...). (Sluitter and others, 2013)”.
An arrangement that seems to solve the problem of the lack of a rule that allows court judges to proceed to the “on site visits”, which have as their sole purpose the collection of elements to discover the truth. In the case of Kupreskić and others (IT-95-16-T) of 14 January 2000, in accordance with Rule 4, for the purpose of conducting an on the spot check, the judges of the First Chamber of the Court of First Instance of the ICTY71 asked and obtained the permission of the President of the Tribunal to go to various villages to investigate. (Ford, 2017, pg. 5ss )72. The purpose of the mission in this case was to corroborate the evidence presented by the Prosecutor and the defense in the case; it has in all respects been a form of on site investigation. Such an experience could not, however, appear in ICC, in spite of art. 3, par. 3 of the Statute, provides that: “(...) the Court may meet in any other place, in accordance with the rules of this Statute (...).” (Strijards, 1999, pg. 77-88)
The provision appears to be designed to allow the activities to take place in a place other than the one established and not to regulate a form of in-situ investigation. The Prosecutor will conduct the most extensive consultations with the Court. With regard to this last condition, it should be pointed out that it may be difficult for the Prosecutor to initiate consultations especially when the state is not in a non operational, non cooperative73, cooperation with ICC74. The statutory provision stipulates that the Prosecutor will in any case be required to consider any reasonable conditions or concerns that the state may have advanced during the consultations. According to art. 93 and whether it must be assessed by the state concerned in the light of the ordinary provisions of title 9. The conditions and the procedure laid down in Rule 194 RPE do not make it easy to accept any requests from the State. (Liakopoulos, 2018). In the silence of the implementing provisions, it is presumed that the Prosecutor sends a notice to the state concerned indicating his intention to initiate direct investigations in his territory and, where appropriate, fixing a time line for the expired consultations which may proceed further.
The subject of the request may be of a different kind, as the provision uses the expression “cooperate with” also “provide assistance to”: it is not a strengthening tautology but of cooperation in investigative and character assistance wider for the purpose of establishing and conducting criminal proceedings. The entire institute of “reverse cooperation” seems to be primarily aimed at satisfying needs of a purely probative character: in fact, although with an exemplifying wording (“inter alia”), the provision in question leads to the delivery of declarations, documents or other types of evidence obtained by the Court. Given the peculiarities of such investigations, it is considered that the discipline of the formalities provided for in art. 96 for assistance requests.
The Prosecutor can evaluate-depending on the case- in order to prevent the state concerned in the near future refusing to cooperate with the state to be aware of every detail concerning the subject of inquires carried out in its territory. In carrying out on the spot investigations, the Prosecutor must in any case comply with the formalities required by the Statute if he intends to use trial evidence75 for example, when taking a testimony must allow the defender's presence and respect the procedural rules. (Roben, 2003; Robinson, 2014).
Concluding remarks
The need for an international penalty would continue through the judgments of international criminal courts to be legitimized following a rationalization of the social and political reality of various countries that are part of the Statutes of this kind of courts. In this sense, international criminal law also protects national interests through the system of judicial assistance and cooperation. Above a thin and difficult balance line that does not lose state law sovereignty in criminal matters.
The open debate on cooperation with EU Institutions, which will surely be an open and difficult challenge for the coming years, according to the writer's opinion regarding the dialogue between the Court of Justice of the European Union and international criminal courts, with other courts of international nature and on the other hand between international criminal courts and Constitutional courts. We would be confronted with a conflict of rules and exception clauses which we believe is a conflict between principles that will be based on some fundamental rules that every democratic system includes in its legislation: the protection of human rights, the degree of satisfaction of justice (Donnelly, 2013), the reliability of international institutions, the satisfaction of the punishment of international crimes as a guarantee of a super parties system that collaborates through the system of judicial assistance and cooperation with all its strength in order not to leave unpunished a list of crimes that for decades people have suffered while waiting that the entire international Community through its international justice centers will make effective justice for the punishment of particular crimes and difficult the evaluation of evidence gathered in a globalized society which no longer requires assurance of certainty but the guarantee of balance for the organization, methods and means of an ever evolving international justice and at the same time as a guarantor of balance and greater protection of human rights. (Liakopoulos, 2018)
Among the aims of judicial cooperation proposed and established by ICC is that the collection of evidence and the guilt of a person charged with crimes under the Statute are part of the trial in a circumscribed field of evidence based on a collection difficult and often overcome by national and international laws. Facts in a process are never though and expressed in isolation but in its essential relation to a legal rule in our case at an international level and that we must observe it through the line of legal coordination between this facti and quaestio iuris. The inspirational culture of the principle of judicial assistance is based on the spirit of solidarity and a comfortable conservative practice that should be sensitized to think that the threshold of punishment for such serious crimes is really the last beach for a last act of justice against crimes that centuries have remained unpunished due to so many reasons. In any case, criminal justice cooperation at a supranational level seeks to enforce as much as possible a commitment of responsibility, impartiality and justice of international character. (Zongze, 2012).
The point is not who does believe in international criminal tribunals and/or what kind of justice can they guarantee for international community but the fact that the crimes punished in these courts have long convinced, even the most indifferent, of having some credibility even outside by setting certain boundaries that delimit test topics in the context of the instrumental necessity of everything regarding the imputation, the related issues of punishment and the possible determination of the punishment (Liakopoulos, 2014). For decades the punishment of such crimes is faced with great skepticism and especially after the establishment of international criminal tribunals, relying more on the actual autonomy and independence of those Institutions that do not fail to recognize ICC's undeniable new elements (Easton and Piper, 2016) from the previous international criminal courts so as to enable them to respond effectively to the question of justice and the refusal of impunity76 affecting one of its major manifestations such as the exercise of criminal jurisdiction. The analysis of the provisions on jurisdiction of ICC with activation mechanisms and in relation with national jurisdictions through cooperation mechanisms is essential in order to establish the actual nature of such an international institution. 77.
The described international legal assistance mechanism primarily respects the legal culture of any country that does not want to participate in the collection of evidence, documents, and mitigate only to discuss the royalties of the so called questions and statuses that establish the demonstration character of the trials and every reasoning was included within a logical demonstrative structure in the sense that every question should be decided on the basis of indisputable criteria always based on a scientific experimental basis based on the concept of verifiability and hypothesis that serve certain tests with relative frequency of a event in a long series of events already monitored by a UN Security Council, other political, diplomatic, scientific channels involving the transition from a known fact to an unknown or completely specific, guaranteed, certain, unambiguous and not contradicted by other elements of the ratio probabilis that exceed the limits of tor probability as a means of discovering truth by pointing to the principle of non dispersal of the means of proof with regard to irreparable acts, guaranteed or assumed in special conditions. (Liakopoulos, 2018)
Within this spirit of globalization of criminal justice, there are various ways of exercising universal criminal justice through the criminalization of individual behavior and setting precise limits to national repression, for example by banning imprescribility (Baron-Cohen, 2011, pg. 342s), amnesty and impunity in general78; internationalizing the guarantee instruments through the creation of competing or complementary national jurisdictions with national institutions (Glasius, 2012, pg. 44ss ), competent to judge individuals who are the perpetrators of crimes against peace (Meernik and King, 2010, pg. 309-334) and the security of humanity is, as a matter of fact, the case with the judicial cooperation area between ICC and Member States or not the Statute of the Court. Importance is given in not just about how the declarations and/or collections of elements, evidence, etc. are out but also regarding the purpose of the truth and cum quis in perturbatione ponitur, the whole mentis of subjects who have committed facts that do not need the intimate conviction of international community to condemn apotrope crimes without tolerance and understanding but a collaboration with the power (in this case through international criminal Tribunals) of thousands massacred victims for purposes that many times are never hit by any psychic judgment, criminal conviction, mass media, etc. lawfully put into practice worldwide. (Van Den Wyngaert, 2012, pg. 475ss. Werle and Jessberger, 2014. Schabas and Bernaz, 2011)
In this sense it is possible to say that the idea of S. Agostino and Descartes on the so-called hyperbolic doubt stimulates the search because it is without doubt, the starting point and foundation of a demonstration, a guiding principle, a standard level of rationality and the need for further testing (notoria non egent probatione).