Co-operation with the ICC: Arrests and Surrender, the Gathering of Evidence and Asset Forfeiture

Author:Kimberly Prost
Pages:73-93

Page 73

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. Page 74

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 with the Court and fails to co-operate in respect of requests submitted pursuant to it.

2. 3 How are requests transmitted and what are the procedures surrounding them?

Requests from the Court will be sent either through diplomatic channels (Ministries of Foreign Affairs) or via another designated channel. States have the option to decide which channel to use. For example, if there is a central authority for extradition or mutual legal assistance generally (usually this is the Director of Public Prosecutions' office or the Attorney General's chambers of a particular State), this channel may be identified as the relevant channel for requests. Requests may also be transmitted through Interpol or any other appropriate regional organisation (for example, Europol).

2. 4 Are there any confidentiality restrictions on requests?

All requests and supporting documents sent by the Court must be kept confidential by the requested State.1 The only exception is disclosure that must take place for the execution of the request. For example, it would be permissible for the authorities of a State to disclose the material in an application to the domestic court responsible for execution of the warrant17,2 but care must be taken to ensure that any particularly sensitive material is subject to protections that will prevent its general public disclosure through this process.

Of particular concern is information that could prejudice the safety and physical or psychological well-being of any victims, potential witnesses and their families. The importance of this is emphasised in the Statue by the inclusion of a separate paragraph in Article 87(4) on this point. This obligation requires not only protection of the request and supporting documents by the ICC but also additional measures that may be necessary in the execution process (for example, to protect witness identity).

On a related issue, the ICC is also under an obligation to keep confidential any documents or information that it receives except to the extent that the material needs to be disclosed in the course of the investigation or prosecution. Page 75

Further, a State may decide that some material requires additional protection. In these instances the requested State can transmit the documents on a purely confidential basis and the ICC Prosecutor may agree to use them only for the purpose of generating new evidence, unless the State authorities subsequently consent to the use of the documents or information as evidence.3 These protections may go some way in allowing State authorities to disclose sensitive material to the Court.

The confidentiality restrictions regarding any particular request should be discussed fully with the ICC authorities before any execution or investigative or prosecution action is taken that may result in disclosure on either side.

2. 5 What are the arrangements regarding the costs of executing requests from the court?

There are, of course, costs associated with the execution of requests for arrest and surrender or for other forms of co-operation. Article 100 of the ICC Statute regulates the apportionment of such costs. The general rule is that the State bears the costs of expenses incurred in its territory except for:

*costs of or associated with, travel and security of witnesses, experts and temporary...

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