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In: Contemporary Issues Facing the International Criminal Court
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The Al Bashir arrest warrant of the icc raises a number of questions regarding cooperation obligations incumbent upon states. In light of the most recent arrest warrant, including charges of genocide, this opinion explores the questions whether States Parties to the Genocide Convention have a duty to cooperate with the icc in the arrest of Al Bashir under that particular treaty, whether States Parties to the Rome Statute can effectively invoke head of state immunity of Al Bashir, as a ground to refuse cooperation, and whether states members of the African Union can invoke Article 98 of the Rome Statute, or any other ground, to justify refusal to arrest Al Bashir.

It is argued in respect of the first question that the icc is undeniably the international penal tribunal envisioned in Article vi of the Genocide Convention. This triggers a duty to cooperate when an individual is charged by the icc with genocide, as is the case with Al Bashir as of July 2010, and when the State Party to the Genocide Convention has accepted the jurisdiction of the icc. I support the view that a member of the United Nations must be regarded as having accepted the jurisdiction of the icc when that jurisdiction is the direct result of a binding Security Council resolution.

Regarding the second issue, immunities for Al Bashir as acting head of state cannot be considered as a bar to his arrest in other states. Although Resolution 1593 could have been better drafted, its gist—and object and purpose—must be the effective prosecution of the most responsible persons. I agree with the view that Resolution 1593 equates Sudan for cooperation purposes to a State Party to the icc Statute. The result is that immunities do not apply, just as they do not apply between icc States Parties. But even if the Pre-Trial Chamber which requested all States Parties to arrest Al Bashir had acted in violation of Article 98 it is uncertain whether this can be regarded as a ground justifying refusal to cooperate recognized under the statute. States cannot be allowed to decide unilaterally that the Court has acted ultra vires and to attach to such determination the consequences they deem fit.

Finally, the present opinion takes issue with the position of the African Union (au) on cooperation with the icc. Apart from head of state immunity—already discussed—it appears that the au advances some sort of “essential State interests” as justification for refusal of its members to cooperate. Although this is not recognized as a ground to refuse cooperation, Part 9 of the statute does not necessarily exhaustively set out grounds for refusal. Article 97 could be the basis on which states submit to the Court impediments in the execution of requests for assistance. Clearly a high threshold should apply and it is questionable whether the concerns advanced by the au would meet such threshold.

In an afterthought to this opinion it is submitted that until this day the Court has used the wrong procedures in dealing with instances of noncooperation. We could be much more advanced in this situation if the Court had followed, as a rule and directly, in all instances of noncooperation the procedure embodied in Article 87(7) and Regulation 109 of the Court.

In: Contemporary Issues Facing the International Criminal Court
In: The Emerging Practice of the International Criminal Court
In: The International Criminal Court: Contemporary Challenges and Reform Proposals
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Abstract

This article deals with the question of possible effect of the law of international criminal procedure for domestic war crimes trials. With the increasing number of national prosecutions for war crimes this question will gain in relevance.The article starts with an exploration of the origin and development of the law of international criminal procedure, to reach the conclusion that because of the lack of a strong foundation it is difficult to discern firmly established rules in this field. Next, two areas are examined where the law of international criminal procedure is capable of producing effect for national trials: human rights and rules that have developed in the specific context of war crimes prosecutions.Whether rules of international criminal procedure are formally effective in the domestic legal order remains to be seen. There is no clear obligation under international law to do so. Furthermore, the law of international criminal procedure may be difficult to harmonise with domestic inquisitorial systems.In spite of these difficulties, the article concludes that national courts will increasingly face similar procedural problems in complex war crimes trials as international criminal tribunals and will be happy to learn from their experiences.

In: International Criminal Law Review
The International Criminal Court is at a crossroads. In 1998, the Court was still a fiction. A decade later, it has become operational and faces its first challenges as a judicial institution. This volume examines this transition. It analyses the first jurisprudence and policies of the Court. It provides a systematic survey of the emerging law and practice in four main areas: the relationship of the Court to domestic jurisdictions, prosecutorial policy and practice, the treatment of the Court’s applicable law and the shaping of its procedure. It revisits major themes, such as jurisdiction, complementarity, cooperation, prosecutorial discretion, modes of liability, pre-trial, trial and appeals procedure and the treatment of victims and witnesses, as well as their criticisms. It also explores some of challenges and potential avenues for future reform.
In: The Emerging Practice of the International Criminal Court
In: The Emerging Practice of the International Criminal Court
In: Cooperation and the International Criminal Court
In: The Genocide Convention